Novak v. Capital Management and Development Corp.

• Citation: 452 F.3d 902
• Decision Date: 07 July 2006
• Docket Number: No. 04-7150.,No. 04-7149.,04-7149.,04-7150.
• Parties: Dominic NOVAK, Appellant v. CAPITAL MANAGEMENT AND DEVELOPMENT CORPORATION, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

452 F.3d 902

Dominic NOVAK, Appellant v. CAPITAL MANAGEMENT AND DEVELOPMENT CORPORATION, et al., Appellees.

No. 04-7149.

No. 04-7150.

United States Court of Appeals, District of Columbia Circuit.

Argued September 26, 2005.

Decided July 7, 2006.

Appeals from the United States District Court for the District of Columbia (No. 01cv00039) (No. 01cv00456).

Patrick M. Regan argued the cause for appellants. With him on the briefs were Jonathan E. Halperin and Thanos Basdekis.

William C. Parler, Jr. argued the cause and filed the briefs for appellee.

Before: HENDERSON and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Opinion concurring in part and dissenting in part filed by Circuit Judge KAREN LECRAFT HENDERSON.

GRIFFITH, Circuit Judge.

Twelve to fifteen thugs criminally attacked and permanently injured appellants Dominic Novak and George Valdivia as they were leaving a bar and dance club in the District of Columbia. The attack occurred late at night in an alley that was immediately outside the only exit from the club and was the most common path for departing patrons. The club's operators allegedly knew that there had been numerous attacks on their customers in and around the club at that time of night and yet failed to take steps to protect Novak and Valdivia. This case presents the question whether the club's operators had a duty to use reasonable care to protect Novak and Valdivia from the danger of an attack. The District Court concluded there was no such duty because the club did not exercise "exclusive control" over the alley and granted summary judgment for the club's operators. The District Court also held that evidence of two similar assaults per month witnessed by the club's security guards was insufficient to make this attack foreseeable. Applying District of Columbia case law, we conclude that the District of Columbia Court of Appeals would not look to whether the club exercised "exclusive control" over the alley, but would instead inquire whether the club put the alley to a "substantial special use." Because a reasonable jury could find facts establishing that the club put the alley to a substantial special use, and because evidence of two fights per month occurring in the alley could demonstrate foreseeability, we reverse and remand.

I.

The Zei Club is a bar and dance club owned and operated by appellees Capital Management and Development Corporation; Menage Limited Partnership; Zei, Inc.; Capital Restaurant Concepts, Ltd.; Power Station Limited Partnership; and SJG Properties.¹ The club is not located on any particular street. Rather, it is abutted by alleys on each side and situated near the intersection of I and 14th Streets in Northwest Washington, D.C. It is surrounded by office buildings and only accessible via alleys. There are two main alleys leading to the club, one running east-west from 14th to 15th Street, named "Zei Alley," and another running from Zei Alley north to I Street (the "I Street alley"). At around 2:35 a.m. on March 23, 1998, Novak and Valdivia were attacked by a group of twelve to fifteen men in the I Street alley. At that hour, the front doors to the club were locked, and thus the rear exit onto the I Street alley was the only way to leave the club. Upon exiting, Novak and Valdivia turned south to head toward the entrance in order to exit through Zei Alley. They immediately encountered the men, who had been standing next to a wall in the I Street alley across from the rear exit. The group followed Novak and Valdivia for a few steps and attacked them within view of the exit. The assailants struck Valdivia several times with fists. They tripped Novak, then hit him in the back of the head with a wooden board.

Upon learning of the assault, two off-duty Metropolitan Police Department ("MPD") officers working security at the club, appellees Michael Braxton and Ricky Waller, ran out of the club, stopped the attack, and apprehended some of the assailants.² Novak and Valdivia had been beaten badly. Valdivia required emergency treatment and months of physical therapy and Novak emerged from a three-week long coma with permanent loss of various brain and motor functions.

The Zei Club employed fifteen security guards to protect against frequent fights in the club and knew that fights in the alley near the club's rear exit were common. Several former Zei Club security guards testified consistently that they witnessed between one and two fights a month in the alleys around the exit from the club and witnessed fights within the club with the same frequency.

Novak and Valdivia argued to the District Court that the Zei Club had a duty to protect departing patrons from fights it knew were likely to occur outside the club's sole exit. The Zei Club, on the other hand, argued that its duty to protect patrons was limited to the interior of the club and ended at the club's doorstep. The District Court agreed with the Zei Club and granted summary judgment in its favor. Looking to Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477 (D.C.Cir.1970), the District Court held that a business has a duty to protect its patrons from criminal assaults on adjacent property only if "the criminal activity takes place `in the portion of the premises exclusively within [its] control' and the business has `exclusive power to take prevent[]ive action.'" Dist. Ct. Op. at 5 (quoting Kline, 439 F.2d at 481) (first alteration in original; emphasis added). The District Court concluded that the "Zei Club did not have exclusive control over the I Street alley" because it noted that the District of Columbia MPD had "discretion to close off all the alleys surrounding the Zei Club" to car traffic, its "officers patrolled the alleys," and "off-duty MPD officers employed by the Zei Club were not allowed to patrol the alleys because they were already covered by on-duty MPD officers." Dist. Ct. Op. at 9-10 (emphasis added). In the District Court's view, this lack of exclusive control over the I Street alley relieved the Zei Club of any duty of care to patrons using the alley to leave the club.

The District Court also held that no reasonable juror could find that the attack on Novak and Valdivia was foreseeable to the Zei Club. The Zei Club argued that there was no history of criminal assaults in the I Street alley and that in the fifteen months before the attack, police reports showed only three fights at the Zei Club — two inside and one outside. Dist. Ct. Op. at 6. Novak and Valdivia proffered contrary evidence demonstrating that criminal assaults were, in fact, common inside the club and in the nearby surrounding alleys. The District Court acknowledged that fights occurred as often as twice a month but concluded that these fights were not sufficiently "frequent." Id. at 7.

Novak and Valdivia also argued that the club failed to follow its own security policy, which, they alleged, required the club's guards to secure and patrol the adjacent alleyways. The club's alleged failure to follow this policy on the night of the attack amounted to, in the appellants' view, a breach of the club's duty to protect departing patrons. The District Court rejected this theory of negligence and concluded in the alternative that there was insufficient evidence of such a policy. Id. at 12, 14.

Novak and Valdivia filed a timely notice of appeal, invoking our jurisdiction under 28 U.S.C. § 1291. We review "the district court's grant of summary judgment de novo." Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024, 1031 (D.C.Cir.2003). "Summary judgment is appropriate only if `there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'" Id. at 1031-32 (quoting Fed.R.Civ.P. 56(c)). We "must view the evidence in the light most favorable to the nonmoving party," Breen v. Dep't of Transp., 282 F.3d 839, 841 (D.C.Cir.2002), "and draw all reasonable inferences in [that party's] favor." Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). Because we are reviewing a grant of summary judgment in favor of the club, we have stated the facts in the light most favorable to Novak and Valdivia. See, e.g., Info. Handling Servs., 338 F.3d at 1032.

II.

Novak and Valdivia brought their common law tort claim in the United States District Court for the District of Columbia alleging diversity jurisdiction. Neither the parties nor the District Court questioned subject matter jurisdiction. They should have. When this appeal reached this Court, we requested that the parties brief jurisdictional problems apparent from the face of the complaint. Novak and Valdivia failed to allege their citizenship and the citizenship of two individual defendants, Michael Braxton and Ricky Waller, and claimed only that both plaintiffs and these two defendants were "residents" of Maryland. At the least, alleging that all plaintiffs and some defendants are "residents" of Maryland raises the concern that there might not be complete diversity between all plaintiffs and all defendants.³ But before that issue can be reached, plaintiffs' residency allegation raises a threshold problem: "an allegation of residence alone is insufficient to establish the citizenship necessary for diversity jurisdiction." Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792 n. 20 (D.C.Cir.1983) (emphasis added). Citizenship is an essential element of federal diversity jurisdiction; failing to establish citizenship is not a mere technicality. "[T]he party seeking the exercise of diversity jurisdiction bears the burden of pleading the citizenship of each and every party to the action." Id. at 792.

The complaint also contained no allegations regarding the states of incorporation and principal places of business of the corporate defendants, instead alleging only that one defendant, Capital Management and Development...