Baugh v. United States Capitol Police

• Decision Date: 12 July 2022
• Docket Number: Civil Action 22-139 (TJK)
• Parties: VERONICA BAUGH, Plaintiff, v. UNITED STATES CAPITOL POLICE et al., Defendants.
• Court: U.S. District Court — District of Columbia

VERONICA BAUGH, Plaintiff,
v.
UNITED STATES CAPITOL POLICE et al., Defendants.

Civil Action No. 22-139 (TJK)

United States District Court, District of Columbia

July 12, 2022

MEMORANDUM OPINION AND ORDER

TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE

Veronica Baugh sued the United States Capitol Police and two of its officers in the Superior Court of the District of Columbia, alleging that those two unnamed officers harassed her several times and asserting several tort claims against all three defendants. After receiving notice of the lawsuit, the Capitol Police removed the case to this Court. Baugh moves to remand, and the Capitol Police moves to dismiss. The Court will deny Baugh's motion to remand because the Capitol Police properly removed this case. The Court will grant the Capitol Police's motion to dismiss as far as the Capitol Police seeks the dismissal of Baugh's claims against it because the Court lacks subject matter jurisdiction over those claims. The Court also lacks subject matter jurisdiction over some of Baugh's claims against the officers, so it will dismiss those claims. Finally, although the Court presently has subject matter jurisdiction over Baugh's other claims against the officers, it will order Baugh to show cause why those claims should not be dismissed for her failure to serve the officers.

I. Background

According to the allegations in her complaint, Baugh is a barber at House Cuts, a barber-shop in one of the congressional office buildings near the U.S. Capitol. See ECF No. 1-1 ¶¶ 1, 26.

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One day in April 2021, Baugh returned to the barbershop from her lunch break to find “Officer X,” a Capitol Police officer, in the barbershop waiting to get a haircut. Id. ¶¶ 3, 7. Upon seeing Baugh, “Officer X” began “interrogating” Baugh in an “incessant and aggressive” manner about a tattoo she has, after which he left the barbershop. Id. ¶¶ 8-13. The next day, while walking into work, Baugh again encountered “Officer X,” who grabbed Baugh's purse and “began frantically searching through it.” Id. ¶¶ 14-17. Another Capitol Police officer, “Officer Y,” was with “Officer X,” and while “Officer X” searched Baugh's purse “Officer Y” questioned Baugh about her tattoo and told her “‘We haven't seen your kind ‘round here before,'” which “Baugh interpreted” as a “racial statement.” Id. ¶¶ 3, 18-20. During this interaction, which lasted about fifteen minutes, the officers “made it clear” that Baugh “was not free to leave.” Id. ¶¶ 21-22. The next day, while again on her way to work, Baugh once more encountered “Officer X,” who “taunt[ed]” Baugh and who Baugh believed was “stalking” her. Id. ¶¶ 26-27. Feeling “extremely traumatized” by this series of interactions, Baugh sought therapy. Id. ¶¶ 28, 31.

In October 2021, Baugh sued the Capitol Police, Officer X, and Officer Y in the Superior Court of the District of Columbia. See ECF No. 1-1 at 1; ECF No. 7-3 at 2.^[1] In her complaint, she asserted one count of false imprisonment under District of Columbia law; one count of intentional infliction of emotional distress under District of Columbia law; one count of intrusion upon seclusion under District of Columbia law; one count for Fourth Amendment violations under federal law; one count of negligent hiring, training, and supervision under District of Columbia law; and one count of “respondeat superior.” ECF No. 1-1 ¶¶ 32-78. She sought $3.3 million in

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damages. Id. at 12. After suing, Baugh tried to serve only the Capitol Police, and she did so by serving the Attorney General for the District of Columbia. See ECF No. 7-3 at 3.

After receiving notice of Baugh's lawsuit, the Capitol Police removed the entire case to this Court under 28 U.S.C. § 1442(a)(1), the “federal officer removal statute.” See ECF No. 1 at 1; id. ¶ 2; see also 14C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 3726, nn.74, 82.50 & accompanying text (Rev. 4th ed. Apr. 2022 update) (“Wright & Miller”); K&D LLC v. Trump Old Post Office LLC, 951 F.3d 503, 506 (D.C. Cir. 2020). Baugh moves to remand the case to Superior Court. See ECF No. 5. The Capitol Police opposes remand and moves to dismiss, mainly for lack of subject matter jurisdiction. See ECF No. 7.

II. Legal Standards

“When a plaintiff files a motion to remand, the removing defendant bears the burden of proving that removal was proper.” Arenivar v. Manganaro Midatlantic, LLC, 317 F.Supp.3d 362, 367 (D.D.C. 2018) (internal quotation marks omitted). In resolving a motion to remand, the Court may consider “evidence outside the pleadings.” See id.

When considering a motion to dismiss for lack of subject matter jurisdiction, the Court generally must “accept all of the factual allegations in the complaint as true.” See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (cleaned up). And the Court “must grant [the] plaintiff the benefit of all inferences that can be derived from the facts alleged.” Ghaf-faru v. Wells Fargo Bank, N.A., 6 F.Supp.3d 24, 28 (D.D.C. 2013) (internal quotation marks omitted). The Court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., 402 F.3d at 1253.

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III. Analysis

A. The Court Will Deny Baugh's Motion to Remand Because Removal Was Timely

Baugh moves to have this case remanded to Superior Court because the Capitol Police's removal was untimely under 28 U.S.C. § 1446(b)(1).^[2] The Capitol Police argues otherwise. It has the better of the argument.

A civil action brought in the Superior Court of the District of Columbia against a federal agency such as the Capitol Police may be removed to this Court. See 28 U.S.C. § 1442(a)(1), (d)(6); see also id. § 1451(1); 2 U.S.C. § 1901 et seq. The timeframe to effect removal under § 1442(a)(1) is governed by 28 U.S.C. § 1446(b)(1). See Wright & Miller, Fed. Prac. & Proc. § 3726, n.71 & accompanying text; 16 Fed. Proc., L.Ed. § 40:807, n.2 & accompanying text (June 2022 update). Under § 1446(b)(1), a notice of removal “shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” Although “through service or otherwise” might suggest that the thirty-day clock may start to run before the removing party receives formal service, the Supreme Court has held that a defendant's “mere receipt of the complaint unattended by any formal service” does not start the clock. See Murphy Bros., Inc. v. Mi-chetti Pipe Stringing, Inc., 526 U.S. 344, 348, 356 (1999). Thus, under § 1446(b)(1), the thirtyday clock does not start to run until service is “properly effected” on the defendant. See Holmes v. PHI Serv. Co.,

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437 F.Supp.2d 110, 115-17 (D.D.C. 2006); accord Cofield v. Corizon, Inc., No. 13-cv-1442 (ESH), 2013 WL 6501697, at *1 (D.D.C. Dec. 12, 2013).

Here, the clock never started to run because Baugh did not properly serve the Capitol Police before removal. To do so, Baugh had to serve the United States Attorney for the District of Columbia, the Attorney General of the United States, and the Capitol Police itself. See D.C. Super. Ct. R. 4(i)(1)-(2). According to the proof of service Baugh filed in Superior Court before removal, Baugh tried to serve the Capitol Police by serving the Office of the Attorney General for the District of Columbia. See ECF No. 7-3 at 3; Affidavit of Service of Summons & Complaint, Baugh v. U.S. Capitol Police, No. 2021 CA 003776 B (D.C. Super. Ct. Nov. 18, 2021). This did not effect proper service. Thus, the thirty-day clock under § 1446(b)(1) never started running, and removal was timely.^[3]

Baugh asserts that “Defendants were served on November 4, 2021.” ECF No. 5 at 1-2. But the evidence of this is the proof of service she filed in Superior Court, which shows only that she tried to serve the Capitol Police by serving the Attorney General for the District of Columbia. See ECF No. 7-3 at 5. She also calls the Court's attention to “documented proof” that she “directly served” the Capitol Police in August 2021. ECF No. 10 at 2. But her “documented proof” is a process server's affidavit from her prior lawsuit. ECF No. 10-1. This is hardly proof that the Capitol Police was properly served with the pleading on which this “action or proceeding is based.” See 28 U.S.C. § 1446(b)(1).

In short, the evidence shows that the Capitol Police was not “properly served in this case” before removal, and there is “no evidence to the contrary.” See Cofield, 2013 WL 6501697, at *1.

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Thus, “the thirty-day time limit for removal” in § 1446(b)(1) “had not even begun to run, let alone lapsed,” when the Capitol Police removed the case, so “removal was timely.” See id.

B. The Court Will Dismiss Baugh's Claims Against the Capitol Police Because the Court Lacks Subject Matter Jurisdiction over Those Claims

Because this case was properly removed, the Court considers the Capitol Police's motion to dismiss. The Capitol Police makes several arguments for dismissal, including that the Court lacks “derivative jurisdiction” over Baugh's claims against the Capitol Police. See ECF No. 7-1 at 8-10. The Court agrees.

The “derivative...