UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
IMAD ELKALIBE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 10-2186 (ESH)
)
IBIZA NIGHTCLUB DC, LLC, et al., )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
Plaintiffs Imad Elkalibe, Saad Elorch, Garth Robinson, Ever Romero, Sezer Solak,
Yannick Tshiteya, and Yassin Yahyaoui have sued Superclub Ibiza, LLC1 (“Ibiza”), unnamed
District of Columbia police officers, and the District of Columbia (the “District”) under various
theories relating to their alleged false imprisonment on the night of December 12, 2009.
Plaintiffs filed a complaint in D.C. Superior Court on November 10, 2010 (Dkt. No. 8.),
alleging violations of state and federal law. Plaintiffs alleged false imprisonment in violation of
42 U.S.C. § 1983 (Count VI) by all defendants, and use of excessive force in violation of 42
U.S.C. § 1983 by Ibiza and the unnamed police officers (Count VII). The District filed a notice
of removal on December 20, 2010, under 28 U.S.C. § 1441(b), on the grounds of federal
question jurisdiction, 28 U.S.C. § 1331. (Dkt. No. 1.) Ibiza and the District have now moved to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. Nos. 10 & 12.) The District moves to dismiss
all claims against it, and Ibiza moves to dismiss the claim for negligent supervision under state
1
Ibiza has noted in its pleadings that plaintiffs have improperly named it as “Ibiza Nightclub DC, LLC” in their
complaint and other filings. (Mem. of Grounds & A. in Supp. of Def.’s Mot. to Dismiss [“Ibiza’s Mot.”] at 1.)
law (Count IV),2 as well as Counts VI and VII, for failure to state a claim upon which relief can
be granted. For the reasons set forth below, the Court will grant Ibiza’s and the District’s
motions as to Counts VI and VII and remand the case to the Superior Court of the District of
Columbia.
STANDARD OF REVIEW
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face,’” such that a court may “draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the Court is “not bound to accept as
true a legal conclusion couched as a factual allegation,” Twombly, 550 U.S. at 555, it “should
assume [the] veracity” of “well-pleaded factual allegations” and “determine whether they
plausibly give rise to an entitlement to relief.” Iqbal, 129 S. Ct. at 1950.
ANALYSIS
I. SECTION 1983 CLAIMS
A. Count VI –The District of Columbia
The District argues that plaintiffs’ claim under section 1983 should be dismissed because
they have failed to identify any custom, policy, or practice that was the moving force behind the
alleged Fourth Amendment violation. (D.C.’s Mot. at 9.) Plaintiffs respond that they have
alleged that a false arrest has occurred, but “concede” that their pleading is “inartful as far as the
policy and custom at issue and the extent to which that policy and custom allow both on and off-
duty police officers to act in concert with private security to execute arrests.” (Pl.’s Opp’n to
2
Because the Court finds that it lacks subject matter jurisdiction over the state law claims, it will limit its discussion
to the claims arising under § 1983.
2
D.C.’s Mot. at 8.) Plaintiffs have therefore conceded that they failed to allege an essential
element of a constitutional violation by the District. Plaintiffs also do not allege that the District
knowingly ignored an ongoing practice or was deliberately indifferent. Plaintiffs have therefore
failed to state the elements of a section 1983 claim against the District of Columbia.
In their opposition, plaintiffs ask the Court for leave to amend their complaint to address
its admitted “deficiencies.” Id. Plaintiffs may amend their pleading “only with the opposing
party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Any request to amend a
complaint “can only be made as part of a Rule 15(a) motion.” De May v. Moore & Bruce, LLP,
584 F. Supp. 2d 170, 186 (D.D.C. 2008); Juergens v. Urban Title Servs., Inc., 246 F.R.D. 4, 13
(D.D.C. 2007) (“the Court is not required to afford a party an opportunity to amend a complaint
that is insufficient on its face in the absence of a motion to amend”). Plaintiffs have failed to file
any such motion. The Court will therefore dismiss Count VI against the District for failure to
state a claim upon which relief can be granted.
B. Counts VI & VII – Ibiza
Ibiza moves to dismiss plaintiffs’ section 1983 claims against it. It argues that Count VI
should be dismissed because plaintiffs have merely repeated their allegations of false
imprisonment and arrest and have therefore failed to allege a constitutional violation. (Ibiza’s
Mot. at 7-8.) Plaintiffs concede to the dismissal of both counts. [Dkt. No. 16.] The court will
therefore dismiss Counts VI and VII against Ibiza.
II. PLAINTIFF’S REMAINING CLAIMS
The Court has dismissed plaintiffs’ section 1983 claims against Ibiza and the District of
Columbia, and no other federal law claims against any named and served defendant remain.3
3
The only remaining federal claims in the case relate to the unnamed John Doe defendants, who have not been
served, have not been identified, and who neither requested nor consented to removal. The Court notes that remand
3
Therefore, the Court will dismiss the case and remand it to D.C. Superior Court, where plaintiffs
initially filed the case.
CONCLUSION
For the foregoing reasons, the Court will grant Ibiza’s motion to dismiss [Dkt. No. 10] as
to Counts VI and VII and the District’s motion to dismiss [Dkt. No. 12] as to Count VI. The
Court will remand the case to the Superior Court of the District of Columbia. A separate Order
consistent with this Memorandum Opinion is also being issued this date.
/s/ a
ELLEN SEGAL HUVELLE
United States District Judge
DATE: April 13, 2011
will not prejudice these defendants’ right to remove if and when service is accomplished. See Princeton Running
Co., Inc. v. Williams, No. 05-cv-1461, 2006 WL 2557832, at *2-*3 (D.D.C. Sept. 5, 2006) (adopting rule that “later-
served defendants, however, have 30 days from their service date to join in an otherwise valid removal petition”).
4