UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LISA BROWN EL,

Plaintiff,

v. Civil Action No. 19-3804 (CKK)

DENNIS OPARAUGO,

Defendant.

MEMORANDUM OPINION

This matter is before the Court on Dennis Oparaugo’s motion for judgment on the

pleadings and Lisa Brown El’s motions to compel and for sanctions. For the reasons discussed

below, the Court grants the Oparaugo’s motions and denies all others.1

1 The Court’s consideration has focused on the following documents and their attachments: • Complaint, ECF No. 1 • Defendant’s Motion for Judgment on the Pleading, ECF No. 21 • Plaintiff’s Answers to Defendant’s Motion for Summary Judgment, ECF No. 23 • Reply to Plaintiff’s Opposition to Defendant’s Motion for Judgment on the Pleadings, ECF No. 24 • Motion to Compel the Judge Colleen [Kollar]-Kotelly to Sanction Defendant and Counsel for failure to provide Documentation requested in two previous Motions, ECF No. 26 • Defendant’s Opposition to Plaintiff’s Motion to Compel, ECF Nos. 27 and 28 • Plaintiff’s Motion for Sanctions, ECF No. 30 • Defendant’s Opposition to Plaintiff’s Motion for Sanctions, ECF No. 32

1 I. BACKGROUND

A. Procedural History

Lisa Brown El initiated this civil action on December 23, 2019, when she filed her

original complaint (ECF No. 1, “Compl.”). The complaint listed five plaintiffs, but only

Brown El signed the complaint and submitted an application to proceed in forma pauperis

(ECF No. 2). On January 28, 2020, the Court issued an Order (ECF No. 3) that, within 30

days, the remaining four plaintiffs either submit applications to proceed in forma pauperis or

pay the $402 filing fee in full. If the other four plaintiffs were minors, the Order directed

Brown El either to demonstrate that she was acting as the minors’ next friend or to submit an

amended complaint dismissing the other four as party plaintiffs.

The case remained open for more than one year with no activity until April 21, 2021,

when Brown El responded to the January 28, 2020, Order. In a “Revised Complaint” (ECF

No. 5), Brown El explained that she was “removing all family members previously named in

this action.” She submitted another “Revised Complaint” (ECF No. 4) on April 28, 2021,

listing herself as the sole plaintiff.

On May 11, 2021, the Court issued a Memorandum and Order (ECF No. 6) dismissing

Bruce K. Brown II, Jewel L. Brown, C.O. Gordon and A.M. Gordon as party plaintiffs,

declaring the original complaint (ECF No. 1) the operative pleading, and granting Brown El’s

application to proceed in forma pauperis. The Clerk of Court issued a summons on May 14,

2021 (ECF No. 7), and according to the return of service (ECF No. 9), defendant (hereinafter

“Oparaugo”) was served on May 24, 2021.

2 Oparaugo, then proceeding pro se, prepared a response to the complaint, dated June 2,

2021, and sent it to the Court by certified mail on June 4, 2021. See Def.’s Opp’n to Pl.’s Mot.

to Compel (ECF No. 28) ¶ 5; see id., Ex. A (ECF No. 28-1). The Court treated the response as

Oparaugo’s answer, and on June 30, 2021, granted leave to file it. See Answer (ECF No. 11) at

1. Counsel entered an appearance (ECF No. 13) for Oparaugo on August 13, 2021, and filed a

motion for judgment on the pleadings (ECF No. 21) on September 24, 2021. Brown El

(hereinafter “Plaintiff”) timely filed her opposition (ECF No. 23, “Pl.’s Opp’n”) on October 25,

2021, and Oparaugo filed a reply (ECF No. 25) on November 1, 2021.

B. Plaintiff’s Factual Allegations and Legal Claims

Plaintiff rented a house from Oparaugo at 3737 Horner Place, S.E., Washington, DC.

See Compl. at 1 (page numbers designated by CM/ECF); Pl.’s Answers to Def.’s Mot. for

Summ. J. (ECF No. 23, “Pl.’s Opp’n”), Ex. 1 (ECF No. 23-1, Real Estate Lease). According to

Plaintiff, in May 2018, “a deluge of bricks, mortar and other portions of the chimney came

crashing down on the rear deck” of the house. Compl. at 1. Plaintiff further alleged that

Oparaugo “fail[ed] to maintain the property in a safe . . . manner,” id., and, among other

defects, alleged that improper water drainage resulted in damage to the interior walls, ceilings

and floors, see Pl.’s Opp’n at 2 (page numbers designated by CM/ECF); see also id., Ex. 2

(ECF No. 23-1 at 6-7, Inspection Checklist).

Plaintiff brings an intentional infliction of emotional distress (“IIED”) claim, Compl. at

1, alleges Oparaugo’s “negligence was deliberate and preventable,” id. at 2, and accuses

Oparaugo of fraud, id. at 1; see generally Pl.’s Opp’n, Ex. 5 (ECF No. 23-1 at 15-16, Pl.’s

Decl.) (page numbers designated by CM/ECF). As a result, Plaintiff alleges, she sustained 3 non-physical injuries, see Compl. at 1 (alleging Plaintiff’s family “was traumatized and their

lives were threatened”); Pl.’s Decl. at 15 (stating that falling chimney rendered Plaintiff “close

to death”), 16 (alleging Plaintiff “went into a severe depression” and experienced “anger and

hopelessness” prompting her to “see[] a therapist to work through these intense emotions”), for

which she demands “thirty million dollars in compensatory and punitive damages,” Compl. at

2.

II. DISCUSSION

A. Oparaugo’s Motion for Judgment on the Pleadings

1. Legal Standard

“After the pleadings are closed—but early enough not to delay trial—a party may move

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). Such motion is “functionally equivalent

to a Rule 12(b)(6) motion.” Rollins v. Wackenhut Servs., Inc.,

(D.C. Cir.

2012); see Jung v. Ass’n of Am. Med. Colleges,

(D.D.C. 2004)

(“[T]he standard of review for motions for judgment on the pleadings under Rule 12(c) of the

Federal Rules of Civil Procedure is essentially the same as that for motions to dismiss

under Rule 12(b)(6).”). To survive a Rule 12(b)(6) motion, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)); see Rollins,

(concluding that that Iqbal and Twombly

apply to Rule 12(c) motions). In other words, a plaintiff must “plead[] factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

4 alleged.” Patton Boggs LLP v. Chevron Corp.,

(D.C. Cir. 2012) (alteration

in original) (quoting Iqbal,

)).

“The moving party must demonstrate [his] entitlement to judgment in [his] favor, even

though the ‘court evaluating the 12(c) motion will accept as true the allegations in the

opponent’s pleadings, and as false all controverted assertions of the movant.’” Dist. No. 1,

Pac. Coast Dist., Marine Eng’rs Beneficial Ass’n, AFL-CIO v. Liberty Mar. Corp.,

(D.C. Cir. 2019) (quoting Haynesworth v. Miller,

, 1249 n.11 (D.C.

Cir. 1987) (collecting cases), abrogated on other grounds by Hartman v. Moore,

(2006)) (additional citation and internal quotation marks omitted). The Court may not “rely on

facts outside of the pleadings, must construe the complaint in a light most favorable to the

plaintiff, and must accept as true all reasonable factual inferences drawn from well-pleaded

factual allegations.” Brown v. District of Columbia,

(D.D.C. 2017)

(quoting Maniaci v. Georgetown Univ.,

(D.D.C. 2007)) (internal

quotation marks omitted).

2. Intentional Infliction of Emotional Distress

“In order to establish a prima facie case of intentional infliction of emotional distress, a

plaintiff must show (1) extreme and outrageous conduct on the part of the defendant[], which

(2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.” Williams v.

District of Columbia,

, 493–94 (D.C. 2010) (quoting Futrell v. Dep’t of Labor Fed.

Credit Union,

(D.C. 2003)) (internal quotation marks omitted). An IIED

claim survives a motion to dismiss if a plaintiff alleges “conduct that was ‘so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be 5 regarded as atrocious, and utterly intolerable in a civilized community.’”

(quoting

Bernstein v. Fernandez,

(D.C. 1991)); see Ferenc v. World Child, Inc.,

(D.D.C. 1997) (citing Waldon v. Covington,

, (D.C.

1980)), aff’d,

(D.C. Cir. 1998). “The requirement of outrageousness is not an

easy one to meet.” Drejza v. Vaccaro,

(D.C. 1994) (citing Bown v.

Hamilton,

(D.C. 1992)). “Liability will not be imposed for mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities.” Homan v. Goyal,

(D.C. 1998) (internal quotations and citations omitted) (amended by

(D.C. 1998)).

Oparaugo argues that the few facts set forth in the complaint “do not establish any

‘extreme or outrageous’ conduct,” and instead merely “allege[] a failure to maintain the

property . . . leading to an isolated event” which neither “caused . . . personal injuries” nor

would have “cause[d] severe emotional distress in a reasonable person in the Plaintiff’s

position.” Def.’s Mem. at 5. The Court concurs.

An IIED claim could arise in the context of a landlord-tenant relationship. See, e.g.,

Pleznac v. Equity Residential Mgmt., L.L.C.,

(D.D.C. 2018)

(allegations that landlord retaliated against tenant by initiating lawsuits against her, refusing to

make repairs in her unit, and targeting her for mistreatment by staff, survived motion to

dismiss); Morton v. District of Columbia Housing Auth.,

, 10–11 (D.D.C.

2010) (denying motion to dismiss IIED claim where “a reasonable juror could find that the

Housing Authority’s conduct was outrageous and committed in reckless disregard of the

plaintiffs’ welfare”). Even if Oparaugo were responsible for the poor condition of Plaintiff’s 6 former residence, “bad conditions alone are not sufficient to support a claim of intentional

infliction of emotional distress.” Jonathan Woodner Co. v. Breeden,

(D.C.

1995), opinion amended on denial of reh’g,

(D.C. 1996); see Bernstein,

.

Furthermore, Plaintiff’s allegations of emotional distress fall short. In conclusory

fashion, Plaintiff states that she and her family members were “traumatized” and believed

“their lives were threatened.” Compl. at 1. Such assertions are far too vague to survive

Oparaugo’s motion. See Johnson v. Paragon Sys., Inc.,

(D.D.C. 2016)

(concluding IIED claim failed as a matter of law where plaintiff “confines his description of his

injuries to general statements such as ‘undue stress’ and ‘humiliation’”); Futrell,

(finding allegations of ‘“mental anguish’ and ‘stress’ would not rise to the level of the

‘severe emotional distress’ required by the case law”).

3. Negligence and Negligent Infliction of Emotional Distress

“It is well-established that a claim alleging the tort of negligence must show: (1) that

the defendant owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the plaintiff

that was proximately caused by the breach.” Hedgepeth v. Whitman Walker Clinic,

(D.C. 2011) (citation omitted); see Williams v. Baker,

(D.C.

1990) (en banc) (“It is fundamental in tort law that one can be held liable for negligence only if

there was a duty, breach of that duty, and injury proximately caused by the breach.”). A

plaintiff may pursue a negligence claim even if the injury she suffers is not a physical injury.

See Hedgepeth,

(remarking that “Williams and its progeny dispensed with the

notion that emotional distress must be accompanied by physical injury if the plaintiff is to 7 recover damages”). The injury must be serious and verifiable, see Williams,

(citation and quotation marks omitted), and any “emotional distress must be acute, enduring or

life-altering,” Hedgepeth,

.

A negligent infliction of emotional distress (“NIED”) claim may proceed under either

the zone of danger theory or the special relationship theory. See Whittaker v. Court Servs. &

Offender Supervision Agency for District of Columbia,

, 186 (D.D.C.

2019). Under a “zone of danger” theory:

[I]f the plaintiff was in the zone of physical danger and was caused by defendant’s negligence to fear for . . . her own safety, the plaintiff may recover for negligent infliction of serious emotional distress and any resultant physical injury, regardless of whether plaintiff experienced a physical impact as a direct result of defendant’s negligence. Williams,

. A plaintiff finds herself within the zone of danger if she allegedly

is “‘physically endangered by the defendant’s negligent activity.’” Destefano v. Children’s

Nat’l Med. Ctr.,

(D.C. 2015) (quoting Johnson v. District of Columbia,

(D.C. 1999)). “A classic example is that of the reckless driver who speeds by a

pedestrian, missing her by only inches.” Arias v. DynCorp,

(D.C. Cir.

2014).

Alternatively, under a special relationship theory:

[A] plaintiff may show that (1) the defendant has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, of a nature that necessarily implicates the plaintiff’s emotional well-being, (2) there is an especially likely risk that the defendant’s negligence would cause serious emotional distress to the plaintiff, and (3) negligent actions or omissions of the defendant in breach of that obligation have, in fact, caused serious emotional distress to the plaintiff. 8 Kowalevicz v. United States,

(D.D.C. 2018) (quoting Hedgepeth, 22

A.3d at 810–11) (internal quotation marks omitted)). The parties’ landlord-tenant relationship

does not appear to have implicated Plaintiff’s emotional well-being, and the Court follows the

parties’ lead by proceeding under the “zone of danger” theory only.

Oparaugo argues that the complaint fails to allege enough facts to make out a prima

facie NIED claim. See Def.’s Mem. at 4. Plaintiff does “not claim[] to have been anywhere

near the immediate area of the alleged partial chimney collapse at the time of the incident,” and

thus fails to demonstrate that she could have been within “any ‘zone of physical danger.’”

Review of Plaintiff’s submissions supports Oparaugo’s position.

Plaintiff does not allege that she or a family member was present on May 18, 2018,

when “a deluge of bricks, mortar and other portions of the chimney came crashing down on the

rear deck” of the house she rented from Oparaugo. Compl. at 1. Rather, Plaintiff states that

she and her family had been standing on the deck the previous day, see Pl.’s Decl. at 15,

roughly three feet from the spot where the chimney landed, see Pl.’s Opp’n at 3. If Plaintiff

and her family members were not present when and where the chimney collapsed, it is unclear

how they could have been “within 1 hour of certain death,” id. at 16, or in or near the path of

falling debris. Absent factual allegations that Plaintiff was within the zone of physical danger

brought about by falling debris, her NIED claim fails.

4. Fraud

“The essential elements of common law fraud are: (1) a false representation (2) in

reference to material fact, (3) made with knowledge of its falsity, (4) with the intent to deceive,

and (5) action is taken in reliance upon the representation.” Saucier v. Countrywide Home 9 Loans,

(D.C. 2013) (citations and internal quotation marks omitted). A

plaintiff “must state with particularity the circumstances constituting fraud or mistake.” Fed.

R. Civ. P. 9(b). This is a heightened pleading standard which requires that a complaint must

“state the time, place and content of the false misrepresentations, the fact misrepresented and

what was retained or given up as a consequence of the fraud.” U.S. ex rel. Williams v. Martin-

Baker Aircraft Co.,

(D.C. Cir. 2004) (quoting Kowal v. MCI Commc’ns

Corp.,

(D.C. Cir. 1994)).

Where, as here, Plaintiff neither addresses the elements of a common law fraud claim

nor states with particularity the acts from which her fraud claim arises, the complaint fails to

state a viable fraud claim. See Lewis v. Full Sail, LLC,

(D.D.C.

2017) (where plaintiff “has not provided any specifics concerning misrepresentations made by

[defendants]” he “has not pleaded with particularity the fraudulent representations of

[defendants], and thus he has failed to state a claim of fraud.”); Carter v. Bank of America,

N.A.,

(D.D.C. 2012) (noting plaintiff’s failure to plead elements of fraud

claim, to “provide[] even approximate dates of when fraudulent statements were made to her

[and] the specific nature of the assurances”).

B. Plaintiff’s Motions to Compel and for Sanctions

Plaintiff filed a motion to compel (ECF No. 26, “Mot. to Compel”) on November 22,

2021. She noted the 28-day discrepancy between Oparaugo’s June 2, 2021, submission

(construed as his answer to the complaint) and its entry on the docket on June 30, 2021.

Plaintiff suggested that the delay “gives the appearance of unethical activity.” Mot. to Compel

at 1 (page numbers designated by CM/ECF). Plaintiff also claimed to have sent motions to 10 Oparaugo’s counsel on November 4, 2021, and November 17, 2021, demanding an explanation

of the “date and method used to deliver answer to Complaint to the Court.”

.

According to plaintiff, counsel ignored her motions. See

. Continuing with her

inquiry regarding Oparaugo’s answer, plaintiff filed a motion for sanctions (ECF No. 30, “Mot.

for Sanctions”) on April 30, 2022. According to Plaintiff, Oparaugo had not “clarif[ied] how

and when [his] Answer . . . was delivered to the court.”

(page numbers designated by

CM/ECF). Plaintiff considered Oparaugo’s response to this “vital question” relevant to “to the

integrity of the court.”

.

Plaintiff asks the Court to impose sanctions on Oparaugo and his counsel for their

purported failure to respond to her requests for information pertaining to the filing of the

answer. See Mot. to Compel at 2; Mot. for Sanctions at 2-3. The motions are meritless.

Oparaugo has established the date and method by which he mailed his answer to the Court, and

any delay in docketing the answer is attributable to the Court.

III. CONCLUSION

The Court concludes that Plaintiff’s complaint fails to state IIED, NIED and fraud

claims, and therefore GRANTS Oparaugo’s motion for judgment on the pleadings. An Order

is issued separately.

DATE: June 10, 2022 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

11