Searcy v. Smith

HENRY SEARCY, JR., Plaintiff, v. DEMAURICE F. SMITH, et al., Defendants.

Civil Action No. 19-921 (RBW)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

May 6, 2020

MEMORANDUM OPINION

The pro se plaintiff, Henry Searcy, Jr., brings this civil action against the National Football League Players Association ("NFLPA"); DeMaurice F. Smith, the Executive Director of the NFLPA; Prometric LLC ("Prometric"); and Michael P. Sawicki, the Vice President and General Counsel of Prometric (collectively, the "defendants"), alleging violations of the Federal Arbitration Act (the "Act"), 9 U.S.C. §§ 1-307 (2018), and District of Columbia common law. See Amended Complaint ("Am. Compl.") ¶¶ 15-59. Currently pending before the Court are (1) Defendant National Football League Players Association's Motion to Dismiss ("NFLPA's Mot."), (2) Defendant DeMaurice F. Smith's Motion to Dismiss Plaintiff's First Amended Complaint ("Smith's Mot."), (3) Defendant Prometric LLC's Motion to Dismiss Plaintiff's Amended Complaint ("Prometric's Mot."), and (4) Defendant Michael P. Sawicki's Motion to Dismiss Plaintiff's Amended Complaint ("Sawicki's Mot."), all of which are opposed by the plaintiff. Upon careful consideration of the parties' submissions,¹ the Court concludes for the following reasons that it must grant the NFLPA and Smith's motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and that it must grant Prometric and Sawicki's motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1).

I. BACKGROUND

The following facts are taken from the Amended Complaint, unless otherwise specified. Under Section 9(a) of the National Labor Relations Act ("NLRA"), the NFLPA "is the exclusive collective bargaining representative of all present and future [National Football League ('NFL')] players." NFLPA's Mem. at 2. Smith, as noted earlier, is the Executive Director of the NFLPA. See Smith's Mem. at 1.

The NFLPA "delegate[s] portions of its exclusive bargaining authority to Contract Advisors for purposes of negotiating individual player contracts with NFL Clubs[.]" NFLPA's Mem. at 2-3. In order to negotiate player contracts with NFL organizations, Contract Advisors must meet the requirements for certification set forth in regulations promulgated by theNFLPA—the NFLPA Regulations Governing Contract Advisors (the "Agent Regulations")—and otherwise comply with these regulations. Id. Pursuant to the Agent Regulations, in order to be eligible for certification, a prospective NFLPA Contract Advisor "must file a verified Application for Certification," as well as "attend[] the NFLPA seminar for new Contract Advisors" and "pass[] a written examination." Id. at 4 (internal quotation marks omitted) (quoting Am. Compl., Exhibit ("Ex.") 3 (Agent Regulations) at § 2(A), at 13-14).²

In 2014, the plaintiff, a resident of Maryland, see Am. Compl. at 1, completed an application for certification as a NFLPA Contract Advisor, see Am. Compl. ¶ 2. In a letter dated June 12, 2014, the plaintiff was informed by NFLPA that he was deemed eligible for certification, subject to him (1) attending an NFLPA Contract Advisor Seminar and (2) receiving a satisfactory score on the NFLPA Contract Advisor examination (the "examination"), which would be given at the seminar. See id. The letter explained that the examination "would consist of [sixty] multiple-choice questions," and that "[a]pplicants must receive a scaled score of at least [seventy] on the examination to become certified by the NFLPA." NFLPA's Mem. at 5 (emphasis in original) (internal quotations omitted) (quoting Am. Compl., Ex. B (Letter from the NFLPA to Applicants (June 12, 2014)) at 3-4); see Am Compl. ¶ 3. The NFLPA Contract Advisor examination is developed and provided by Prometric, see Prometric's Mem. at 1, a company based in Maryland, see Sawicki Decl. ¶ 5. Sawicki, as noted earlier, is the Vice President and General Counsel of Prometric, see Sawicki's Mem. at 4, and a resident of Maryland, see Sawicki Decl. ¶ 4.

In connection with the plaintiff's application for certification, he signed an Acknowledgement Form pursuant to which he "agree[d] to comply with and be bound by the[] [Agent] Regulations," and further "agree[d] that if [he] [is] denied Certification . . . the exclusive method for challenging any such action is through the arbitration procedure set forth in the [Agent] Regulations." NFLPA's Mem. at 4 (alterations in original) (emphasis in original) (internal quotations omitted) (quoting Am. Compl., Ex. 3 (Agent Regulation, Appendix A) at 29-30). The Agent Regulations specify that appeal "hearing[s] [are] conducted in accordance with the Voluntary Labor Arbitration Rules of the American Arbitration Association." Id. at 5 (alterations in original) (internal quotations omitted) (quoting Am. Compl, Ex. 3 (Agent Regulations) at § 5(E), at 24).

The plaintiff took the examination on July 25, 2014. See Sawicki's Mem. at 2. In a letter dated September 8, 2014, the plaintiff was advised by the NFLPA that he did not pass the 2014 examination. See Am. Compl. ¶ 3; NFLPA's Mem. at 5. The letter explained that "[a] scaled score of [seventy] or better is considered a passing grade. The scaled score is NOT a percentage of the total number of questions answered correctly[;] however you needed to answer at least [f]orty-one [ ] correct items to achieve a passing scaled score." NFLPA's Mem. at 6 (alterations in original) (quoting Am. Compl., Ex. 2 (Letter from the NFLPA to Searcy (Sept. 8, 2014)) at 4); see Am. Compl. ¶ 3.

The plaintiff took the examination a second time on July 24, 2015. See Am. Compl. ¶¶ 5-6; Sawicki's Mem. at 2. In a letter dated September 22, 2015, the plaintiff was again advised by the NFLPA that he did not pass the 2015 examination. See NFLPA's Mem. at 6. The letter explained that "[a] scaled score of [seventy] or better is considered a passing grade[,]" but that this time, "you needed to answer at least [f]orty-seven [ ] correct items to achieve apassing scaled score." Sawicki's Mem. at 2 (alternations in original) (quoting Am. Compl., Ex. 7 (Letter from NFLPA to Searcy (Sept. 22, 2015)) at 55); see Am. Compl. ¶ 6. Therefore, while "the passing grade for the 2015 exam[ination] was the same as the 2014 exam[ination]—i.e., a scaled score of [seventy] or better[,]" "to achieve a scaled score of [seventy] in 2015, an [a]pplicant was required to obtain a raw score of at least [forty-seven], as opposed to [forty-one] in 2014." NFLPA's Mot. at 5-6; see Am. Compl. ¶ 7.

Following his receipt of the September 25, 2015 letter, the plaintiff filed an appeal with the NFLPA, asserting that (1) he had answered forty-six correct items on the 2015 examination, and had thus passed the exam based upon the 2014 "Exam Scoring Process[,]" see Am. Compl. ¶¶ 6-7, and (2) the NFLPA arbitrarily changed the "Exam Scoring Process" to require forty-seven correct items on the 2015 examination, see id. ¶ 7. The plaintiff's appeal proceeded to arbitration and, in a decision dated April 3, 2016, the arbitrator issued a decision upholding the NFLPA's decision to deny Contract Advisor certification to the plaintiff (the "Arbitration Award"). See NFLPA's Mem. at 8; Am. Compl. ¶ 11.

Nearly three years after the Arbitration Award was issued, on April 2, 2019, the plaintiff filed his Complaint against Smith and Sawicki in this Court. See Compl. at 1. Then, on May 29, 2019, the plaintiff amended his Complaint to include the NFLPA and Prometric as additional defendants. See Am. Compl. at 1. In the Amended Complaint, the plaintiff seeks to vacate the Arbitration Award pursuant to the Federal Arbitration Act (the "Act")³ "[a]s a resultof the [a]rbitrator's partiality"⁴ (Count VI). Id. ¶ 52. Additionally, the plaintiff asserts the following District of Columbia common law claims against the NFLPA and Prometric:⁵ (1) breach of contract against the NFLPA (Count I); (2) tortious interference with contractual relations against Prometric (Count II); (3) negligent misrepresentation against the NFLPA (Count IV); (4) negligence against the NFLPA (Count V); and (5) intentional infliction of emotional distress by the NFLPA (Count VII).⁶ See id. ¶¶ 15-59. The defendants thereafter filed their motions to dismiss, see generally NFLPA's Mot.; Smith's Mot.; Prometric's Mot.; Sawicki's Mot., which are the subjects of this Memorandum Opinion.

II. STANDARDS OF REVIEW

A. Rule 12(b)(1) Motion to Dismiss

Rule 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. A motion pursuant to this Rule "presents a threshold challenge to the [C]ourt's jurisdiction . . . ." Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); see Grand Lodge Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (noting that "a Rule 12(b)(1) motion imposes on the [C]ourt an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"). Accordingly, the Court must dismiss a claim if it "lack[s] . . . subjectmatter jurisdiction[.]" Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(1), "it is to be presumed that a cause lies outside [ ] [the Court's] limited jurisdiction," Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), and the plaintiff bears the burden of establishing the Court's jurisdiction by a preponderance of the evidence, see, e.g., Moore v. Bush, 535 F. Supp. 2d 46, 47 (D.D.C. 2008). In deciding a motion to dismiss based upon lack of subject matter jurisdiction, the Court is not limited to the allegations set forth in the complaint, but "may consider materials outside the pleadings[.]" Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005). Because the Court must ensure its jurisdictional authority, "the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of...