UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RAFAEL GIL,

Plaintiff,

v. Civil Action No. 19-2197 (TSC)

NEIGHBORS’ CONSEJO, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Rafael Gil initially brought this suit against the non-profit rehabilitation center

Neighbors’ Consejo, its former employees, and the District of Columbia Department of

Behavioral Health. Plaintiff has now moved for leave to amend his Complaint, modifying both

the named defendants and the asserted causes of action. Defendants oppose Plaintiff’s motion,

and defendant Nancy M. Moran-Gaitan has moved to dismiss his initial Complaint. For the

reasons set forth below, the court will GRANT in part and DENY in part Plaintiff’s motion for

leave to amend, and will GRANT in part defendant Moran-Gaitan’s motion to dismiss.

I. BACKGROUND

Plaintiff’s initial Complaint, filed pro se, alleges that in September 2014, he enrolled at

Neighbors’ Consejo “for treatment of acute chronic alcoholism.” Compl. ¶¶ 8, 13, 17, ECF

No. 1. He claims that Neighbors’ Consejo and its employees forced him to abandon his course

of treatment, perform work involving long hours and dangerous conditions, and endure sub-

standard housing and medical care. Id. ¶¶ 18–20, 25–26, 29–30, 32–34. Plaintiff brought a

claim of Negligent Infliction of Emotional Distress against Neighbors’ Consejo, its former

employees, and the District of Columbia Department of Behavioral Health. Id. ¶¶ 8–12, 36–41.

Page 1 of 9 Two of the former employee Defendants filed pro se Answers to the Complaint. Nancy M.

Moran-Gaitan’s Answer stated that she was “without sufficient information to admit or deny”

most of the allegations in the Complaint. See ECF No. 3. Silvanna Donet likewise denied most

of the allegations, although she later received leave to withdraw her Answer. See ECF No. 6;

January 28, 2020 Minute Entry.

After the initial pleadings, however, the parties obtained counsel. Once represented,

Plaintiff moved for leave to amend his Complaint. See ECF No. 19 (“Pl.’s Mot.”); Am. Compl.,

ECF No. 19-1. Through counsel, Defendants Moran-Gaitan and Donet separately opposed

amendment, with Moran-Gaitan’s opposition also moving to dismiss Plaintiff’s original

Complaint. See ECF Nos. 25 (“Donet Opp.”), 26 (“Moran-Gaitan Opp.).

II. LEGAL STANDARD

Federal Rule of Civil Procedure 15 directs courts to “freely give leave” to amend a

complaint “when justice so requires.” “If the underlying facts or circumstances relied upon by a

plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim

on the merits.” Foman v. Davis,

(1962). Granting leave to amend is therefore

appropriate “[i]n the absence of any apparent or declared reason” to deny it, “such as undue

delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies

by amendments previously allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, futility of amendment, etc.”

A defendant “bears the burden” of

demonstrating that leave should be denied. Council on Am.-Islamic Rels. Action Network, Inc. v.

Gaubatz,

(D.D.C. 2012). A court “should not deny leave to amend based

solely on time elapsed between the filing of the complaint and the request for leave to amend.”

Appalachian Voices v. Chu,

(D.D.C. 2009) (citing Atchinson v. District of

Columbia,

(D.C. Cir. 1996)). Rather, the court should consider whether the Page 2 of 9 delay is “undue” by “tak[ing] into account the actions of other parties and the possibility of any

resulting prejudice.” Atchinson,

(citing Sinclair v. Kleindienst,

(D.C. Cir. 1981)).

III. ANALYSIS

Defendants have not shown that Plaintiff’s request for leave to amend was made in bad

faith, or that it would result in undue delay or prejudice. However, the court concludes that it

would be futile to raise at least some of his proposed amended claims against some of the

Defendants, and therefore will deny leave to amend with respect to those claims.

A. Undue delay, prejudice, or bad faith

Defendant Donet argues that Plaintiff’s request constitutes undue delay and would cause

her prejudice because she “continues to have to defend against a complaint and proposed

amended complaint that are both baseless in regards to her.” Donet Opp. at 6; see id. at 7. But

whether Plaintiff’s claims are baseless will be tested in future dispositive motions or trial; Donet

cannot simply declare them so and claim resultant prejudice at this stage. A party opposing

leave to amend “must show that it was unfairly disadvantaged or deprived of the opportunity to

present facts or evidence which it would have offered had the amendments been timely.”

Uzoukwu v. Metro. Washington Council of Governments,

(D.D.C. 2013)

(quotation omitted). Donet has made no such showing, and the court does not find undue delay

or prejudice at this early pleadings stage.

Likewise, Donet provides no support for her assertion that the proposed amendments are

made in bad faith. She contends only that Plaintiff proposes the amendments to “‘muddy the

waters’ of [the] court’s resolution of the case.” Donet Opp. at 9 (quoting Hoffman v. United

States,

(D.D.C. 2003)). But this case is not “on the verge of final

resolution”—discovery has not begun and a trial date has not been scheduled—and so there is no Page 3 of 9 “spectre of bad faith” or appearance that Plaintiff is “attempting to resuscitate previously-

rejected claims.” Hoffman,

. Accordingly, the court finds no bad faith to

cause it to depart from Rule 15’s command that leave to amend shall be freely given on grounds

of bad faith.

B. Futility

“A district court has discretion to deny a motion to amend on grounds of futility where

the proposed pleading would not survive a motion to dismiss.” In re InterBank Funding Corp.

Sec. Litig.,

(D.C. Cir. 2010) (citation omitted). Thus, “review in this instance

is, for practical purposes, identical to review of a Rule 12(b)(6) dismissal based on the

allegations in the amended complaint,” which “treats the complaint’s factual allegations as true”

and grants Plaintiff “the benefit of all inferences that can be derived from the facts alleged.”

(citations omitted). Based on that standard, the court will deny Plaintiff leave to amend with

respect to certain claims, but grant leave with respect to the others.

1. Claims against Defendant Moran-Gaitan To begin, none of Plaintiff’s amended claims against Defendant Moran-Gaitan would

survive a motion to dismiss because they are all time-barred. See Am. Compl. ¶¶ 64–89.

“Where the fact of an injury can be readily determined, a claim accrues for purposes of the

statute of limitations at the time the injury actually occurs.” Mullin v. Washington Free Weekly,

Inc.,

(D.C. 2001) (quotation marks and citation omitted). A three-year

limitations period applies to wage violations under D.C. law,

(c)(1); willful

violations of the Fair Labor Standards Act,

(a); and fraud,

-

301(8). As Plaintiff concedes, Moran-Gaitan “stopped working at Neighbors’ Consejo on June

29, 2016, more than three years before Plaintiff filed this action,” and therefore did not harm

Plaintiff within the limitations periods for those claims. Pl.’s Reply at 3 n.2 (citing Moran-

Page 4 of 9 Gaitan Answer ¶ 9, ECF No. 3). Plaintiff agrees, therefore, that the court “should deny

Plaintiff’s Motion to Amend with respect to these three claims.”

.

Plaintiff’s Negligent Infliction of Emotional Distress claim against Moran-Gaitan suffers

from the same defect, as it is also subject to a three-year limitations period.

-

301(8); see Rendall-Speranza v. Nassim,

(D.C. Cir. 1997) (“[A]n independent

action for intentional infliction of emotional distress is subject to the District’s three-year

residual limitation period.”). Moran-Gaitan left the position in which she allegedly harmed

Plaintiff more than three years before he sued. Moran-Gaitan Answer ¶ 9. On its face, then, this

claim is also time-barred. Because Plaintiff asserted a version of the same claim in his original

Complaint, see Compl. ¶¶ 36–40, however, he argues that Moran-Gaitan waived any statute of

limitations defense by failing to assert it in her original Answer, Pl.’s Reply at 3–4. But the

ordinary rule that “a party’s failure to plead an affirmative defense . . . generally results in the

waiver of that defense and its exclusion from the case,” Kapche v. Holder,

(D.C. Cir. 2012), does not so clearly apply to a situation where a plaintiff also seeks to amend the

complaint. See Ramsay-Nobles v. Keyser,

, at *4–5 (S.D.N.Y. Dec. 18, 2018)

(surveying a range of approaches courts have taken to this situation).

The court will allow Moran-Gaitan to assert the statute of limitations defense to the

Negligent Infliction of Emotional Distress against her. As an initial matter, if the court allowed

Plaintiff to re-assert a clarified version of this claim in the Amended Complaint, then it would

also allow Moran-Gaitan to amend her Answer to assert that defense. Rule 15(a) directs that

leave to amend both forms of pleadings shall be freely given, and here what is good for the goose

is good for the gander. Moreover, “the purpose of pleading under the Federal Rules of Civil

Procedure is ‘to facilitate a proper decision on the merits,’ not to set the stage for ‘a game of skill

Page 5 of 9 in which one misstep by counsel may be decisive to the outcome.’” Dove v. Washington Metro.

Area Transit Auth.,

(D.D.C. 2004) (citing Foman v. Davis,

,

181–82 (1962)). Denying Moran-Gaitan the opportunity to assert a statute of limitations defense

now would defeat that purpose, particularly because she filed her original Answer pro se. See

Moran-Gaitan Answer; see also Erickson v. Pardus,

(2007) (pro se pleadings

“must be held to less stringent standards than formal pleadings drafted by lawyers”); Norris v.

Salazar,

(D.D.C. 2010) (noting the “wider latitude given to pro se litigants” to

amend pleadings, even when later represented by counsel). In any event, Plaintiff has not

pointed to any prejudice flowing from Moran-Gaitan’s failure to assert the defense in the first

instance.

Consequently, the court will deny Plaintiff leave to amend the Complaint with respect to

his claims against Defendant Moran-Gaitan, and will grant Moran-Gaitan’s Motion to Dismiss

Plaintiff’s Negligent Infliction of Emotional Distress Claim against her as time-barred.

2. Claims against Defendant Rodriguez Plaintiff also seeks to clarify his Negligent Infliction of Emotional Distress claim against

Defendant Rodriguez, and to further assert claims of wage violations under both D.C. law and

the Fair Labor Standards Act against her. See Am. Compl. ¶¶ 64–79. No party opposes these

amendments, although Rodriguez might have done so had she been properly served and appeared

in this lawsuit. See Order, ECF No. 7. Failure to timely serve may result in dismissal of an

action. Fed. R. Civ. P. 4(m). But because Plaintiff was proceeding pro se at earlier stages of this

action, the court will grant leave to amend with respect to his claims against Rodriguez and

permit him an additional thirty days to properly serve her.

Page 6 of 9 3. Claims against Defendant Donet That leaves Plaintiff’s two claims against Defendant Donet for Negligent Infliction of

Emotional Distress and Fraud. Donet argues that the Amended Complaint does not plausibly

plead either claim. The court disagrees.

Plaintiff’s amended allegations—while somewhat tenuous—sufficiently support a claim

of Negligent Infliction of Emotional Distress against Donet at the pleadings stage. Such a claim

arises when “(1) the plaintiff was in the zone of physical danger, which was (2) created by the

defendant’s negligence, (3) the plaintiff feared for his own safety, and (4) the emotional distress

so caused was serious and verifiable.” Rice v. District of Columbia,

(D.D.C. 2011). 1 Giving Plaintiff “the benefit of all inferences that can be derived from the facts

alleged,” In re InterBank Funding Corp. Sec. Litig.,

, the Amended Complaint

adequately pleads each of those elements.

First, Plaintiff alleges that living conditions at the Neighbors’ Consejo residences were

unsafe. Am. Compl. ¶¶ 29–30, 66. Contrary to Donet’s protest, Donet Opp. at 9–10, it does not

matter that she worked in the main office rather than in the residences—what matters is that

Plaintiff was in the zone of physical danger. Second, Plaintiff alleges that Donet assigned him to

one of those residences, despite knowing that it was unsafe. Id. ¶¶ 27, 31. To be sure, the

allegations are not crystal clear on the degree to which Donet was responsible for the residences’

conditions in her role as an Intake Coordinator, see Donet Opp. at 10, but her alleged knowledge

1 A claim may also arise when “(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 wellbeing, (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.” Hedgepeth v. Whitman Walker Clinic,

, 810–11 (D.C. 2011). The court does not reach whether Plaintiff plausibly pled his claim under this theory.

Page 7 of 9 of their unsafe state and misappropriation of funds “intended for Neighbors’ Consejo,” see Am.

Compl. ¶¶ 31, 66, suggests that she may have played some role in creating that zone of danger.

As for the third and fourth elements, the court concludes that Plaintiff’s detailed descriptions of

the residences as “deplorable,” “hazardous,” and not “maintained in a safe [or] sanitary manner,”

¶¶ 29–30, are enough to support the inference that he feared for his safety and suffered

“severe emotional distress” as a result of living there, id. ¶ 68. While these allegations suffice to

survive a motion to dismiss, Plaintiff may struggle to satisfy a heightened burden of proof for

this claim at later stages of this suit.

The Amended Complaint also succeeds in stating a claim of Fraud against Donet. “At

common law, the requisite elements of fraud are (1) a false representation; (2) made in reference

to a material fact; (3) with knowledge of its falsity; (4) with the intent to deceive; and (5) an

action that is taken in reliance upon the representation.” Antoine v. U.S. Bank Nat’l Ass’n,

(D.D.C. 2008). Under Federal Rule of Civil Procedure 9(b), a plaintiff must “state

with particularity the circumstances constituting fraud or mistake,” meaning the “who, what,

when, where, and how” of the fraud. McQueen v. Woodstream Corp.,

, 77 (D.D.C.

2008). Plaintiff has made the required allegations here—specifically, that Donet knew about but

intentionally omitted the residences’ sub-standard conditions when describing the Neighbors’

Consejo treatment program to “induc[e] him to enroll,” which he did in reliance on the

understanding that there were safe living spaces and basic amenities. Am. Compl. ¶¶ 31, 83.

That “Ms. Donet allegedly acted in tandem with Ms. Gaitan” in that conduct, Donet Opp. at 12,

does not render the allegations too vague; the inference may still be drawn that Donet

independently made statements or omissions sufficient to constitute fraud. Thus, Plaintiff has

also plausibly pleaded this claim.

Page 8 of 9 IV. CONCLUSION

For these reasons, the court will GRANT in part and DENY in part Plaintiff’s Motion for

Leave to File the Amended Complaint, ECF No. 19, and will GRANT in part Defendant Moran-

Gaitan’s Motion to Dismiss, ECF No. 28. Specifically, the court will dismiss Plaintiff’s

Negligent Infliction of Emotional Distress claim against Moran-Gaitan as time-barred, and deny

Plaintiff leave to amend with the other proposed claims against her for the same reason. But the

court will grant leave to amend with respect to all claims against Defendants Rodriguez and

Donet. Additionally, the court will grant Plaintiff an additional 30 days to properly serve

Rodriguez. A corresponding Order will accompany this Memorandum Opinion.

Date: July 7, 2023

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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