Jograj v. Enter. Servs., LLC, Case No. 1:16–cv–1846–RMC

270 F.Supp.3d 10

Dotlyn JOGRAJ, Plaintiff,

v.ENTERPRISE SERVICES, LLC, et al., Defendants.

Rosalind Parker, Plaintiff,

v.Enterprise Services, LLC, et al., Defendants.

Lori Lee Stultz, et al., Plaintiffs,

v.Enterprise Services, LLC, et al., Defendants.

Douglas Levitas, et al., Plaintiffs,

v.Enterprise Services, LLC, et al., Defendants.

Jerome Boyd, Plaintiff,

v.The Experts, Inc., et al., Defendants.

Sherrie T. Lawson, Plaintiff,

v.The Experts, Inc., et al., Defendants.

Case No. 1:16–cv–1846–RMC

Case No. 1:16–cv–1847–RMC

Case No. 1:16–cv–1848–RMC

Case No. 1:16–cv–1849–RMC

Case No. 1:16–cv–2037–RMC

Case No. 1:16–cv–2038–RMC

United States District Court, District of Columbia.

Signed September 1, 2017

Benjamin Tederick Boscolo, Chasen Boscolo, Greenbelt, MD, for Plaintiff.

Jason C. Raofield, John Edward Hall, Colin P. Watson, Covington & Burling LLP, Jeffrey Edward McFadden, Mark Edward Chopko, Stradley Ronon Stevens & Young, LLP, Washington, DC, for Defendants.

ROSEMARY M. COLLYER, United States District Judge

On September 16, 2013, Aaron Alexis, a civilian contractor working as a computer technician at Washington, D.C.'s Navy Yard, used a valid temporary access card to enter Building 197 of the facility and then opened fire on its occupants, killing and wounding several people. In the wake of that tragedy, several related lawsuits have been filed against Defendants The Experts, Inc., the subcontractor that employed Mr. Alexis; Enterprise Services, LLC,¹ the contractor that retained The Experts; and the Hana Group, Inc. and HBC Management Services, Inc. (collectively HBC), which provided security services to Building 197.² The Court has previously ruled on motions to dismiss in several of these cases in an Opinion issued September 15, 2016 (the Prior Opinion, or Prior Op.). See, e.g., Mem. and Op., Dkt. 132, Delorenzo v. Enterprise Servs., LLC , 15–cv–216.

The six above-captioned cases are follow-on litigation³ not before the Court at the time it issued its initial rulings. Four of these cases (Jograj ; Parker ; Stultz ; and Levitas ) were filed in this Court directly. The remaining two (Boyd and Lawson ) were originally filed in filed in Superior Court for the District of Columbia and then removed here. Defendants have moved to dismiss these new complaints.⁴

Plaintiffs have opposed those motions,⁵ and Defendants have replied.⁶ The motions are now ripe for the Court's review. The Court will dismiss all counts against all Defendants save those alleging negligent retention and supervision of Mr. Alexis by both The Experts and Enterprise Services. No claims survive against HBC, which will be dismissed as a Defendant.

I. BACKGROUND

Six Plaintiffs are workers at the Navy Yard who witnessed the shootings and allege both physical and psychological injuries as a result of Mr. Alexis's rampage. They are as follows:

(1) Dotlyn Jograj, Jograj v. Enterprise Servs., LLC , 16–cv–1846;

(2) Rosalind Parker, Parker v. Enterprise Servs., LLC , 16–cv–1847;

(3) Lori Lee Stultz, Stultz v. Enterprise Servs., LLC , 16–cv–1848;

(4) Douglas Levitas, Levitas v. Enterprise Servs., LLC , 16–cv–1849;

(5) Jerome Boyd, Boyd v. The Experts, Inc. , 16–cv–2037

(6) Sherrie Lawson, Lawson v. The Experts, Inc. , 16–cv–2038.

Two Plaintiffs allege loss of consortium through their partners' injuries:

(1) Gary Stultz, Stultz v. Enterprise Servs., LLC , 16–cv–1848;

(2) Jennifer Levitas, Levitas v. Enterprise Servs., LLC , 16–1849.

Plaintiffs collectively assert numerous claims against the Defendants. All Plaintiffs bring common law negligence claims against Enterprise Services, The Experts, and HBC for failing to anticipate and prevent the shooting; similarly, all Plaintiffs allege that Enterprise Services and The Experts were negligent in their hiring, retention, and supervision of Mr. Alexis. All Plaintiffs further allege that Enterprise Services and The Experts were negligent per se for their failure to abide by certain federal statutes, regulations, and policy manuals.

II. JURISDICTION

It is incumbent on the Court on its own initiative to verify its jurisdiction. In five of the cases—Jograj ; Parker ; Stultz ; Levitas ; and Lawson —Plaintiffs all reside in states different from all Defendants,⁷ and the amount in controversy for all five is greater than $75,000. Accordingly, the Court has diversity jurisdiction over these cases pursuant to 28 U.S.C. § 1332(a)(1) (2012). However, Plaintiff Jerome Boyd and Defendant The Experts are both residents of Florida, precluding diversity jurisdiction in Mr. Boyd's case. The question remains, then, whether jurisdiction over Mr. Boyd's Complaint lies under 28 U.S.C. § 1331, which provides jurisdiction for federal questions.

"[T]he vast majority of cases brought under the general federal-question jurisdiction of the federal courts are those in which federal law creates the cause of action." Merrell Dow Pharm. Inc. v. Thompson , 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). Mr. Boyd brings only claims under state law, which would typically preclude consideration of such claims in this Court. However, there are certain exceptions to this general rule.

Congress has constitutional power to "exercise exclusive Legislation in all Cases whatsoever ... over all Places purchased ... for the Erection of Forts, Magazines, Arsenals, Dock–Yards, and other needful Buildings." U.S. Const. art. I, s. 8, cl. 17. While the issue is not entirely settled, courts have generally read the "Enclave Clause" to establish federal subject matter jurisdiction over tort claims occurring on federal enclaves, and have allowed such claims to proceed even when applying state law. See Akin v. Ashland Chemical Co. , 156 F.3d 1030, 1034 (10th Cir.1998) (finding that "personal injury actions which arise from incidents occurring in federal enclaves may be removed to federal district court as part of federal question jurisdiction"); Federico v. Lincoln Military Hous. , 901 F.Supp.2d 654, 656 (E.D. Va. 2012) (finding federal subject matter jurisdiction where Plaintiff brought tort claim against government contractor operating on federal enclave).

The Navy Yard is the Navy's oldest shore establishment, originating in 1799. Building 197, where the shooting occurred, houses the Navy Sea Systems Command, responsible for engineering, building, and supporting the Navy's fleet of ships. The Navy Yard therefore qualifies as a federal enclave. Further, this incident, which has already generated a thorough investigation by the Navy, and which involves several issues of Navy contracting and operating procedures, implicates federal interests. Because the tort claims in Mr. Boyd's Complaint arise from activities in a federal enclave, and because the Court must directly interpret federal law in order to resolve these claims, federal question jurisdiction is appropriate under § 1331.

III. FACTS

The Complaints contain lengthy factual allegations regarding the sequence of events. Plaintiffs rely heavily on government investigations after the incident, and adopt several government determinations as part of their own allegations. The Court has already described the factual circumstances underlying these cases in detail in its Prior Opinion, and while it has considered all facts presented, provides a shorter summary here.⁸

In the years leading up to his employment with The Experts and Enterprise Services,⁹ Mr. Alexis had a history of violent outbursts and arrests—although no convictions—including some that occurred while Mr. Alexis served in the Navy. Despite these incidents, Mr. Alexis was honorably discharged in December 2010, retaining his security clearance.

In September 2012, Mr. Alexis applied to work as a computer technician with The Experts, which operated as a subcontractor for Enterprise Services on the latter's contract to supply certain information technology (IT) services to the Navy. The contract between Enterprise Services and the Navy referenced the National Industrial Security Program Operating Manual (NISPOM), which defined security requirements for security-cleared contractors and required contracting parties to report negative personnel incidents to the personnel security clearance management system in the Department of Defense, known as the Joint Personnel Adjudication System.

Under NISPOM, Mr. Alexis's security clearance was still valid in September 2012, because he had been discharged from the Navy within the prior 24 months. Enterprise Services also required The Experts to run a background check on new employees, which consisted of a drug test, a driving record check, and a criminal conviction check. Mr. Alexis cleared all these background checks and was hired by The Experts.

Mr. Alexis worked for The Experts until December 2012, when he voluntarily resigned. He reapplied in June 2013, and, after once again passing background drug, driving, and convictions checks, was rehired in July 2013.

A. Events of August 2013

In August 2013 Mr. Alexis was assigned to a project at the Naval Undersea Warfare Center in Newport, Rhode Island. On August 4, while awaiting a flight to Rhode Island, Mr. Alexis called his project coordinator to complain volubly that a man was making fun of him in the airport. The coordinator calmed Mr. Alexis and on August 5 reported the call to the company's contract team. Mr. Alexis also called the company's travel coordinator later, complaining of the noise level in his hotel and asking to move to another hotel, which he did.

Two days later, on August 6, Mr. Alexis again called the travel coordinator and complained that three individuals had followed him from the first hotel to his new hotel, and were using an "ultrasonic device that was physically pinning him to the bed." See Prior Op. at 7. Mr. Alexis made a similar report to his program manager. That evening the travel coordinator spoke to the desk clerk at Mr. Alexis's hotel and expressed concern that Mr. Alexis could harm someone. The travel coordinator also contacted the contract program manager to...