UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _ ) MACISTE COLEMAN, ) ) Plaintiff, ) ) v. ) Civil Action No. ) 17-1527(EGS) ANN MARIE CLARK and PURDUE ) UNIVERSITY, ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiff Maciste Coleman and defendant Ann Marie Clark

collided when Professor Clark made an illegal right turn while

driving in the District of Columbia. Mr. Coleman claims that he

was injured in the accident and filed this lawsuit alleging that

Professor Clark was negligent and that her employer, Purdue

University, should be held vicariously liable. Pending before

the Court is defendants’ motion to dismiss Mr. Coleman’s

complaint on the ground that the claims are barred by Indiana’s

sovereign immunity. Upon consideration of defendants’ motion,

the response and reply thereto, and the applicable law, the

Court GRANTS defendants’ motion and dismisses plaintiff’s

complaint.

I. BACKGROUND

On August 28, 2014, Mr. Coleman was operating his

motorcycle in the right lane going southbound on 23rd Street NW

1 toward Constitutive Avenue in the District of Columbia. Compl. ¶

5, ECF No. 1-1 at 8. Mr. Coleman alleges that defendant Ann

Marie Clark, a professor at Purdue University, made an illegal

right turn that caused her to collide with Mr. Coleman. Id. ¶¶

6-7, ECF No. 1-1 at 8. Officers from the National Park Service

arrived at the scene and spoke with the parties. See Defs.’ Mot.

to Dismiss Ex. 1, ECF No. 9-1. The Motor Vehicle Traffic

Accident Report filed by the National Park Service indicates

that Professor Clark was issued a citation for the accident.

Id., ECF No. 9-1 at 3. The report further specifies that, while

there was damage to the right side of Mr. Coleman’s motorcycle,

“[n]o injuries were reported.” Id.

Less than two weeks after the accident, Mr. Coleman’s

attorney sent a letter to JFW Specialty Co., the third-party

claims adjuster handling claims against Purdue. See Defs.’ Mot.

to Dismiss Ex. 2, ECF No. 9-2. The subject line of the

attorney’s letter stated that the “Insured” in the matter was

“Purdue University.” Id. The letter further indicated that Mr.

Coleman had suffered “injuries” but did not specify the nature

or severity of the injuries. Id. Mr. Coleman’s attorney sent

three additional letters to JFW between July 2015 and April

2017. See Defs.’ Mot. to Dismiss, Exs. 3-5, ECF No. 9-3, 9-4,

and 9-5. These letters were addressed only to JFW and did not

copy anyone at Purdue or the State of Indiana. See id.

2 On June 30, 2017, Mr. Coleman filed suit in the Superior

Court of the District of Columbia against Professor Clark for

operating her vehicle “in a negligent, careless and reckless

manner.” Compl. ¶ 8, ECF No. 1-1 at 8. Mr. Coleman’s complaint

also included a respondeat-superior claim against Purdue. Id. ¶¶

5-18, ECF No. 1-1 at 8-10. Mr. Coleman asserts that, as a result

of the accident, he “was violently knocked and thrown about,

sustaining severe, painful and permanent injuries to his body as

well as severe and protracted shock to his nervous system.” Id.

¶ 10. Mr. Coleman seeks compensatory damages in the amount of

$850,000 for the injuries he sustained as a result of

defendants’ purported negligence. Id. ¶¶ 14, 18.

Defendants removed this case on July 28, 2017 based on

diversity jurisdiction. See Defs.’ Notice of Removal, ECF No. 1.

Defendants subsequently filed a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(1), arguing that Mr.

Coleman’s suit is barred by Indiana’s sovereign immunity. See

Defs.’ Mot. to Dismiss, ECF No. 9. Defendants’ motion is ripe

for the Court’s adjudication.

II. LEGAL STANDARD

“A federal district court may only hear a claim over which

it has subject-matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court’s

jurisdiction.” Gregorio v. Hoover,

, 44

3 (D.D.C. 2017) (internal citation and quotation omitted). To

survive a Rule 12(b)(1) motion, the plaintiff bears the burden

of establishing that the court has jurisdiction by a

preponderance of the evidence. Lujan v. Defenders of Wildlife,

(1992). “Because Rule 12(b)(1) concerns a

court’s ability to hear a particular claim, the court must

scrutinize the plaintiff's allegations more closely . . . than

it would under a motion to dismiss pursuant to Rule 12(b)(6).”

Schmidt v. U.S. Capitol Police Bd.,

(D.D.C. 2011) (internal citations omitted). In so doing, the

court must accept as true all of the factual allegations in the

complaint and draw all reasonable inferences in favor of the

plaintiff, but the court need not “accept inferences unsupported

by the facts alleged or legal conclusions that are cast as

factual allegations.” Rann v. Chao,

(D.D.C. 2001). In reviewing a motion to dismiss pursuant to Rule

12(b)(1), the court “may consider materials outside the

pleadings” in determining whether it has jurisdiction to hear

the case. Jerome Stevens Pharm., Inc. v. Food and Drug Admin.,

(D.C. Cir. 2005).

III. ANALYSIS

Defendants argue that Mr. Coleman’s claims against a state

university and a state employee are barred by Indiana’s

sovereign immunity. Although Indiana waives it sovereign

4 immunity in certain circumstances — including when its agent

negligently causes a motor-vehicle collision, see State v.

Turner,

(1972) — an individual bringing

suit against the state must satisfy certain statutory

prerequisites prior to filing an action. Defendants assert that

Mr. Coleman failed to meet the statutory requirements here by,

among other things, not providing prompt notice of his claims as

required by the Indiana Tort Claims Act. Defendants urge the

Court to apply the Indiana Tort Claims Act based on the

principle of comity.

“[W]hen a federal court exercises diversity . . .

jurisdiction over state-law claims, ‘the outcome of the

litigation in the federal court should be substantially the

same, so far as legal rules determine the outcome of a

litigation, as it would be if tried in a State court.’” Felder

v. Casey,

(1988) (quoting Guaranty Trust Co.

v. York,

(1945). In this diversity action,

then, the Court must first determine whether District of

Columbia courts would apply Indiana’s notice-of-claim provision

5 on the basis of comity. 1 As explained more fully below, the Court

finds that District of Columbia would apply Indiana’s notice

provision, that Mr. Coleman failed to provide sufficient notice

as required by that law, and that Mr. Coleman’s claims against

Professor Clark cannot stand.

A. Comity Requires the Application of Indiana Law

“Comity principles ensure that foreign law that does not

conflict with the law of the forum state may be applied to

foster cooperation between sister jurisdictions.” Solomon v.

Supreme Court of Fla.,

(D.C. 2002). The

District of Columbia Court of Appeals has explained that the

presumption “‘that the States intended to adopt policies of

1 The parties have not addressed whether choice of law principles are relevant to the Court’s decision whether to recognize Indiana’s immunity rules under principles of comity. Indeed, the intersection between choice-of-law principles and the common-law doctrine of comity is unclear. See Briscoe v. Arlington County,

, 1360 (D.C. Cir. 1984) (“District of Columbia courts have not expressly considered whether choice of law principles are relevant, as a matter of D.C. law, to the decision whether to recognize a sister state’s immunity rules.”). The Briscoe court declined to resolve the question, instead finding that it was “one that the District of Columbia Court of Appeals should properly resolve in the first instance.” Id. Although the Court has not found any District of Columbia cases directly addressing the relationship between choice-of-law and comity, the District of Columbia Court of Appeals has found that comity required application of a sister state’s immunity rules without doing a choice of law analysis. See Solomon v. Supreme Court of Florida,

(D.C. 2002). Accordingly — and for the additional reason that both parties agree that District of Columbia law applies to this action — the Court declines to do a choice of law analysis here. 6 broad comity toward one another’” applies “equally to the

District of Columbia.”

(quoting Hall, 440 U.S. at 425). In

Solomon, the Court of Appeals upheld “the absolute immunity of

the Florida Bar and its agents for conduct related to their

performance of disciplinary functions, conducted in the District

of Columbia, where equivalent District bar disciplinarily agents

would be entitled to such immunity in [D.C.] courts.” Id. at

789-90. In so doing, the Court of Appeals explained that “the

District of Columbia courts should, on principles of comity ‘as

a matter of harmonious interstate relations,’” apply the

immunity of sister’ states in cases where the District would

also be entitled to immunity. Id. (quoting Nevada v. Hall,

(1979)) (emphasis added).

Consistent with these principles, the Court finds that,

although not constitutionally required to do so, see Nevada v.

Hall,

(1979), District of Columbia courts “should”

recognize the sovereign immunity of a sister state so long as

the other state’s rules are sufficiently harmonious to those

governing the District’s immunity in District of Columbia

courts. Accordingly, the Court must examine whether Indiana’s

requirement that, in order to overcome sovereign immunity, a

plaintiff with a claim against the state must provide notice is

consistent with District of Columbia law.

In pertinent part, the Indiana Tort Claims Act provides:

7 [A] claim against a political subdivision is barred unless notice is filed with: (1) the governing body of that political subdivision; and (2) the Indiana political subdivision risk management commission . . . within one hundred eighty (180) days after the loss occurs.

Ind. Code. § 34-13-3-8. Like Indiana law, District of Columbia

law also requires an individual to file a notice of claim for

suits against the District of Columbia:

[A]n action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.

. In most relevant aspects, Indiana and the

District of Columbia’s notice provisions are the same:

• They both impose a similar time limit. Compare

(a) (requiring notice “within one hundred eight (180) days after the loss occurs”), with

(a) (requiring notice within “six months after the injury or damage was sustained”).

• They both require the notice to be in writing. Compare

(requiring notice to “be in writing”), with

(a) (notice must be “in writing”).

• They both require delivery of the notice to a specified governmental office. Compare

8

(requiring notice to “the governing body of th[e] political subdivision and the Indiana political subdivision risk management commission”) with

(a) (requiring notice “to the Mayor of the District of Columbia”). 2

Moreover, both notice provisions are grounded in the same

policies of ensuring that the government has an adequate

opportunity to investigate claims and to protect the public

treasury. Compare George v. Dade,

(D.C. 2001)

(purpose of the notice of claim provision is “to ensure adequate

opportunity for investigation to determine facts, and to protect

District revenues against unreasonable claims”), with Harrison

v. Veolia Water Indpls., LLC,

(Ind. Ct. App.

2010) (explaining that the notice provision is designed “to

permit prompt investigation of claims” and “one of the main

concerns [the Indiana Tort Claims Act] intended to address

clearly was protection of the public treasury”) (citation

omitted).

Mr. Coleman rejects the conclusion that the two notice

provisions are substantially similar, pointing out that

2 While Indiana law provides that a “political subdivision” for purposes of the statute includes a “state educational institution,”

, the District of Columbia does not allow its political subdivisions to be sued at all, instead requiring a plaintiff to bring suit against the District itself, see Younger v. D.C. Pub. Sch.,

(D.D.C. 2014). 9 defendants’ “completely ignore[]

-309’s statutory

exception of notice for accidents involving a police report.”

Pl.’s Opp., ECF No. 14 at 10. Section 12-309 of the D.C. Code

provides that “[a] report in writing by the Metropolitan Police

Department” is sufficient notice for purposes of the section.

This exception to the traditional notice requirement stems from

“the idea that written notice by a claimant should not be a

prerequisite to legal action if, in fact, actual notice in the

form of a police report has been received by the District.”

Allen v. Dist. of Columbia,

(D.C. 1987). A

police report satisfies the notice requirement if it contains

“information as to time, place, cause and circumstances of

injury or damage with at least the same degree of specificity

required of a written notice.”

The inquiry in determining

whether a police report is sufficient is whether “the District

should have anticipated, as a consequence of receiving the

police report, that a complaint . . . would be forthcoming.”

Here, the police-report exception does not save Mr.

Coleman’s case. For starters, the accident report in this case

was not “by the Metropolitan Police Department” as required by

the statute, but by the National Park Police. See Defs.’ Mot. to

Dismiss Ex. 1, ECF No. 9-1. Even if a report by a different

agency would suffice — and the Court is doubtful it would, see

Campbell v. Dist. of Columbia.,

(D.C. 1990)

10 — it is undisputed that the report in this case states that

“[n]o injuries were reported.” See Defs.’ Mot. to Dismiss Ex. 1,

ECF No. 9-1 at 3. 3 Mr. Coleman points to Plater v. Dist. of

Columbia Dept. of Transportation,

(D.D.C.

2008), to argue that the report is nonetheless sufficient to

provide defendants “all the information they needed, and were

entitled to, from the police report.” Pl.’s Opp., ECF No. 14 at

15. In Plater, the court found that the police report was

sufficient to provide notice where it stated that plaintiff

“fell on some glass and hit his head on the ground” and

“suffered some laceration to the back of his head.”

. Here, however, the National Park Police report

specifically disclaims any injuries. See Defs.’ Mot. to Dismiss

Ex. 1, ECF No. 9-1 at 3 (stating “[n]o injuries were reported”).

Moreover, there are no allegations that Mr. Coleman later

provided any information about his purported injuries within the

statutory period. See Miller v. Spencer,

(D.C.

1974) (“While the Code permits a police report to suffice as

3 Although the police report does state that the right side of Mr. Coleman’s motorcycle was damaged, see Defs.’ Mot. to Dismiss Ex. 1, ECF No. 9-1 at 3, Mr. Coleman’s lawsuit is not primarily based on allegations of property damage, but rather on allegations of personal injury. See Compl. ¶¶ 10-11, ECF No. 1-1 at 8 (alleging that he was “violently knocked and thrown about, sustaining severe, painful and permanent injuries to his body as well as severe and protracted shock to his nervous system” and that he “incur[red] medical treatment and medical expenses for the aforesaid injuries”). 11 notice of a claim in lieu of a written notice by the claimant,

his agent or attorney, the police report must, when the facts

are apparent, contain at least the substance of the same

information required of a written notice. When it does not

because no injuries are then apparent, it is the duty of the

plaintiff to supply that additional information when it becomes

apparent.”). Accordingly, the Court concludes that the police-

report exception does not render District of Columbia law

inconsistent with Indiana law under the fact of this case. See,

e.g., Aubin v. Dist. of Columbia,

, 173–74

(D.D.C. 2015) (where police report only described the

circumstances of the arrest and did not describe any injury,

finding “there was no reason whatsoever, on the basis of this

police report, for defendant to have anticipated that a

complaint by plaintiff was forthcoming”).

Mr. Coleman also points to other salient differences

between the Indiana Tort Claims Act and District of Columbia

law: Indiana limits a claimant’s recovery to $700,000, see

(a)(1)(C), whereas there is no cap on

damages in the District of Columbia; and Indiana requires suits

to be filed in its state courts, see

-

5(f), while the District of Columbia does not have any such

limitation. Mr. Coleman argues that these sorts of differences

led another court in this district to decline to recognize the

12 immunity of a municipality. See Pl.’s Opp., ECF No. 14 at 10-11

(citing Skipper v. Prince George’s County,

(D.D.C. 1986). In Skipper, the court found that

application of the immunity provisions relied on by Prince

George’s County would violate the policies of the District of

Columbia in two ways: (1) by requiring a District of Columbia

resident who was injured in the District to bring suit in

Maryland; and (2) by limiting plaintiff’s recovery to $250,000

for tort liability. Skipper,

. Here,

however, Indiana’s recovery limit and forum limitation have no

direct bearing on the Court’s decision to apply Indiana’s notice

provision, which is substantially similar to that of the

District’s. Moreover, the Skipper court was confronted with an

immunity claim brought by a municipality and not a sister state

with whom the District should seek “harmonious interstate

relations.” Hall,

. Furthermore, the Skipper

court relied on choice-of-law principles in arriving at its

conclusion; here, the Court’s inquiry properly ends after

resolution of the comity issue.

The Court finds further support for its conclusion that

District of Columbia would apply Indiana’s notice provision in

view of the reliance, in part, by the District of Columbia Court

of Appeals on Schoeberlein v. Purdue University,

(Ill. 1989), in analyzing principles of comity in its Solomon

13 decision. In Schoeberlein, the plaintiff sued Purdue for damages

caused by a product that Purdue had sold to plaintiff’s Illinois

employer.

. Purdue argued that it was immune from suit

under the Indiana Tort Claims Act. Based on principles of

comity, the Illinois Supreme Court agreed and affirmed the trial

court’s dismissal of the suit.

. In so doing, the

Illinois Supreme Court found that application of Indiana’s

sovereign immunity provision in the tort context would not

contravene Illinois public policy because the Indiana and

Illinois statutes were “[s]imilar.”

. For example,

both statutes provided immunity for the state except where

certain requirements were met, including imposing strict notice

requirements and placing a cap on liability.

Therefore,

plaintiff’s remedy would have been similarly “limited”

regardless of whether the Illinois or Indiana statute applied.

. Here, too, both Indiana and the District of Columbia

impose strict notice requirements. Although Indiana’s cap on

damages to $700,000 could limit Mr. Coleman’s damages should he

prevail, the Court finds this difference between Indiana and

District of Columbia law is not so substantial as to render

enforcement of Indiana’s statute contrary to the District’s

public policy.

For all these reasons, the Court finds that the notice

provisions of the District of Columbia and Indiana, as applied

14 to this case, are sufficiently harmonious such that the District

of Columbia would apply Indiana’s provision as a matter of

comity.

B. Plaintiff’s Claims are Barred Because He Did Not Substantially Comply with the Notice Provision of the Indiana Tort Claims Act

The Indiana Tort Claims Act governs tort claims against

governmental entities and their employees. Oshinski v. N.

Indiana Commuter Transp. Dist.,

(Ind. Ct.

App. 2006). Under the Act, a potential plaintiff’s suit is

barred “unless he or she complies with the notice requirements”

set forth in the Act.

. Those requirements provide

that a plaintiff must file notice with “the governing body of

[the political subdivision that is being sued]” and “the Indiana

political subdivision risk management commission” within 180

days after the loss occurs. Ind. Code. § 34-13-3-8(a). The

notice “must include the circumstances which brought about the

loss, the extent of the loss, the time and place the loss

occurred, the names of all persons involved if known, the amount

of the damages sought, and the residence of the person making

the claim.” Id. § 34-13-3-10. Although the notice requirement is

phrased in mandatory language, Indiana courts “have held that

substantial compliance with the notice provision will suffice

when the purpose of the Act has been satisfied.” Parke Cty. v.

Ropak, Inc.,

(Ind. Ct. App. 1988). In this

15 regard, “the crucial consideration is whether the notice

supplied by the claimant of his intent to take legal action

contains sufficient information for the city to ascertain the

full nature of the claim against it so that it can determine its

liability and prepare a defense.” Schoettmer v. Wright,

(Ind. 2013) (citation and internal quotation

marks omitted).

Mr. Coleman concedes that he “failed to send written notice

under the Indiana Tort Claims Act to the designated recipients

within the 180 day timeframe” in this case. Pl.’s Opp., ECF No.

14 at 17. He further concedes that “his communications with the

third party claims adjuster would not constitute substantial

compliance under the Act.”

Instead, he argues that

defendants should be estopped from relying on Mr. Coleman’s

failure to comply with the Act’s notice requirements because

“they never informed Plaintiff that Defendant Clark was a

government employee” and because he was unware that “Purdue

University was a state owned university.”

at 17-18 (citing

Gregor v. Szarmach,

(Ind. Ct. App. 1999));

see also Pl.’s Supp. Mem., Aff. of Danny R. Seidman, ECF No. 17

¶¶ 6-7 (plaintiff’s counsel averring that he “did not know that

Purdue University was an Indiana state instrumentality,” and

that the claims adjuster never gave him “any reason to believe

16 that Defendants was [sic] covered by the Indiana Tort Claims

Act”). 4

Under Indiana law, “[t]he party claiming equitable estoppel

must show its ‘(1) lack of knowledge and of the means of

knowledge as to the facts in question, (2) reliance upon the

conduct of the party estopped, and (3) action based thereon of

such a character as to change his position prejudicially.’”

Schoettmer,

(citation omitted). “Equitable

estoppel will not apply against the State unless there is ‘clear

evidence that its agents made representations upon which the

party asserting estoppel relied.’”

“The burden to produce

that evidence rests upon the party claiming estoppel.”

Here, the letter from Mr. Coleman’s counsel to JWF, which

was sent less than two weeks after the accident, clearly stated

that the “insured” was “Purdue University.” Defs.’ Mot. to

Dismiss Ex. 2, ECF No. 9-2. Even if Mr. Coleman and his counsel

4 Six days after filing its memorandum in opposition to defendants’ motion to dismiss, plaintiff filed a supplemental affidavit in support of his opposition. See Supp. Aff., ECF No. 17. The affidavit, which is signed by plaintiff’s counsel, supports plaintiff’s arguments that defendants should be estopped from relying on the notice provision in the defense of this suit. See generally

Defendants moved to strike the affidavit as untimely and filed without leave of the Court. See Defs.’ Mot. to Strike, ECF No. 18. In its discretion, and because there is no evidence that defendants were substantially prejudiced by the late filing, the Court will consider the supplemental affidavit in resolving defendants’ motion to dismiss. The Court admonishes plaintiff’s counsel to carefully read and comply with the federal and local rules in the future. 17 lacked actual knowledge that Purdue University is a state

university, plaintiff has not shown that he did not have the

“means of knowledge” to acquire that information. See

Schoettmer,

. After all, a simple search of

“Purdue University” would have confirmed that it is a “public”

institution. See Wikipedia, Purdue University,

https://en.wikipedia.org/wiki/Purdue_University (last visited

July 20, 2018) (“Purdue University is a public research

university in West Lafayette, Indiana and is the flagship campus

of the Purdue University system.”).

Moreover, unlike the plaintiff in Schoettmer, who acted

without counsel and who was told by the state’s agent that it

would “be in his best interest to wait until all his medical

treatments were complete before settling his claim,” Mr. Coleman

was represented by counsel for nearly the entirety of the 180

day notice period and does not allege that JWF or defendants

made any affirmative “representations” upon which he relied. In

similar circumstances, other courts have declined to allow

estoppel to bar a notice defense in a suit under the Indiana

Tort Claims Act. See Mills v. Hausmann-McNally, S.C.,

(S.D. Ind. 2014) (concluding that

estoppel claim failed where party had “demonstrated neither that

it lacked ‘knowledge or the means of knowledge’ that

[individual] was the employee of a stage agency, nor that it

18 relied to its detriment on representations made by [the state

agency] or its agent”). Simply put, Mr. Coleman has “not

demonstrated that this is a case triggering the equitable

doctrine’s protective concern for those who have been misled and

cannot reasonably be expected to discover the facts for

themselves.” Mills,

.

C. Plaintiff’s Claim Against Professor Clark Is Also Barred Under Indiana Law

The Indiana Tort Claims Act bars suit against a state

employee personally if the employee was acting within the scope

of her employment. Ind. Code. § 34-13-3-5. Likewise, District of

Columbia law provides that “no civil action . . . shall be

brought or be maintained against an employee of the District for

loss of or damage to property or for personal injury . . .

resulting from the operation by such employee of any vehicle if

it be alleged in the complaint . . . that the employee was

acting within the scope of his office or employment[.]”

(a) (emphasis added). Here, Mr. Coleman’s complaint

specifically alleges that Professor Clark was “driving the

vehicle as aforesaid within the scope of her employment with,

and agency for the Defendant Purdue University, by carrying out

her job duties assigned by her employer.” Compl. ¶ 16, ECF No.

1-1 at 9; see also

(“At the time of the said collision,

Defendant, Clark, was driving the said vehicle as aforesaid with

19 the knowledge, consent and permission [of], Defendant, Purdue

University.”);

(alleging injuries were caused by

“Clark, while carrying out his [sic] job duties assigned by his

[sic] employer and while furthering the interests of Defendant

Purdue University”). In fact, defendants expressly concede that

Professor Clark was acting within the scope of her employment at

the time of the accident. See Defs.’ Reply, ECF No. 19 at 28.

Accordingly, by all accounts, Professor Clark was acting within

the scope of her employment at the time of the accident, and

therefore the claim against her must be dismissed under the

plain language of the statute.

In his opposition, plaintiff disavows these allegations in

his complaint and seeks leave to amend his complaint “to plead

that Defendant Clark was acting outside the scope of her

employment so that discovery can be done on that issue.” Pl.’s

Opp., ECF No. 14 at 19-21. Although the Court must “freely give

leave” to amend a complaint “when justice so requires,” Fed. R.

Civ. P. 15(a), plaintiff’s request here appears to be “a

transparent attempt by plaintiff to amend his pleading in order

to avoid a dispositive defense.” Colliton v. Cravath, Swaine &

Moore LLP, No. 08-0400,

, at *6 (S.D.N.Y. Sept.

24, 2008). As another court explained in rejecting a plaintiff’s

attempt to “retreat from his assertion” that the defendant was

acting “within the scope of his employment, “[w]here a plaintiff

20 blatantly changes his statement of the facts in order to respond

to the defendant’s motion to dismiss and directly contradicts

the facts set forth in his original complaint, a court is

authorized to accept the facts described in the original

complaint as true.” Rishikof v. Mortada,

(D.D.C. 2014) (citation and internal quotation marks omitted,

alterations accepted). Here, the Court rejects Mr. Coleman’s

attempt to circumvent the clear allegations in his complaint in

response to the defendants’ dispositive motion. Accordingly, the

Court denies plaintiff’s request to amend his complaint to add

allegations that would directly contradict the allegations in

his original complaint.

IV. CONCLUSION

For the reasons set forth in this Memorandum Opinion, the

defendants’ motion to dismiss plaintiff’s complaint is GRANTED.

A separate Order accompanies this Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge July 20, 2018

21