Mesumbe v. Howard University

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
EKITI G. MESUMBE, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1582 (GK)
)
)
HOWARD UNIVERSITY, et al., )
)
Defendants. )
______________________________)

MEMORANDUM OPINION

Plaintiff, Ekiti G. Mesumbe (“Plaintiff”), brings this action

against Defendants, Howard University, Robert E. Taylor, Sheik N.

Hassan, and Irene Pandit (collectively, “Defendants”), under 42

U.S.C. § 1981 and the common law of the District of Columbia. The

suit arises from Plaintiff’s dismissal from Howard University

College of Medicine.

This matter is now before the Court on Defendants’ Motion to

Dismiss.1 Upon consideration of the Motion, Opposition, Reply, the

entire record herein, and for the reasons stated below, Defendants’

Motion to Dismiss is granted.

1
In Plaintiff’s Opposition to Defendants’ Motion to
Dismiss (“Plaintiff’s Opposition”), he also requests leave to amend
the Complaint if his federal claim is dismissed. Pl.’s Opp’n at 3
n.1 [Dkt. No. 7]. The docket does not show that any such motion
was actually filed.
I. BACKGROUND

A. Factual Background2

Mesumbe is a Maryland resident and, until recently, was a

student at Howard University College of Medicine (“Howard” or the

“School”). Compl. ¶ 9 [Dkt. No. 1]. His “national origin is the

Republic of Cameroon and his ethnic background and race is West

African.” Compl. ¶ 57

1. Plaintiff’s USMLE Step 1 Exam and Third Year of
Medical School

Howard students are required to earn a passing score on the

United States Medical Licensing Examination (“USMLE”) Step 1 in

order to enter their third year at the School. Compl. ¶ 15; Defs.’

Reply to Pl.’s Opp’n (“Defs.’ Reply”), Ex. A (University and

College of Medicine Policies Affecting Students (“University

Policies”)) at 36 [Dkt. No. 8-2]. Plaintiff failed the exam twice,

in June and September 2005, and then passed on his third attempt in

May 2006. He began his third year of medical school in July 2006.

Students are also required to pass “shelf” examinations, or

standardized examinations given by the National Board of Medical

Examiners (“NBME”), at the conclusion of each “clerkship,” or

2
For purposes of ruling on a motion to dismiss, the
factual allegations of the complaint must be presumed to be true
and liberally construed in favor of the plaintiff. Aktieselskabet
AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat’l Rifle Ass’n of Am., 606 F.2d 1251, 1253 (D.C.
Cir. 1979). Therefore, the facts set forth herein are taken from
the Complaint unless otherwise noted.

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course of study, during their third year in order to successfully

complete that year. See Compl. ¶¶ 24-26; Def’s Mot. at 4;

University Policies at 34. During his third year, Mesumbe failed

shelf examinations for Surgery and Ob/Gyn, although he passed his

other exams. The University Policies “state that a student who

fails two or more clerkships will either be dismissed from the

College of Medicine or repeat the academic year.” Compl. ¶ 26.

Because he failed two exams, Plaintiff met with Defendant Hassan,

the Associate Dean of Academic Affairs, in May 2007. At that

meeting, Plaintiff signed a “decision” stating that he must repeat

his third year. Id. at ¶ 22.

Plaintiff met again with Dean Hassan to inform him that he

would be appealing the decision. Id. The Complaint does not make

clear whether Plaintiff decided not to pursue the appeal, or

whether an appeal was taken and denied, but ultimately Dean Hassan

and Howard issued an official letter on July 13, 2007, requiring

him to repeat the third year, and to obtain an evaluation for a

learning disability. Mesumbe was diagnosed with Attention Deficit

Disorder and anxiety disorder, and began receiving treatment for

both in July 2007. He also began to repeat his third year around

the same time.

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 Plaintiff alleges that, in contrast to the decisions made

concerning his academic career, another Howard student was allowed

to take the Internal Medicine shelf examination three times, in

violation of the University Policies, which require a student who

fails a shelf exam twice to repeat the clerkship for that subject.

However, Plaintiff was not required to repeat his clerkships. He

also alleges that another student failed the Pediatrics and

Psychiatry shelf examinations, but was promoted to his fourth year,

in violation of the University Policies.

2. Plaintiff’s USMLE Step 2 Exams

Howard students are also required to take and pass the USMLE

Step 2 examinations in Clinical Knowledge and Clinical Skills in

order to graduate. University Policies at 39-40. Students must

pass each test in three or fewer attempts. Id. Plaintiff took the

USMLE Step 2 Clinical Knowledge exam twice, passing it on his

second attempt on August 25, 2008. Howard then issued a letter,

dated October 22, 2008, stating that the Committee on Promotions,

Graduation, and Awards had approved Mesumbe for promotion to his

final year of medical school.

Plaintiff, however, still needed to pass his USMLE Step 2

Clinical Skills exam. He took the exam and failed it twice, on

February 13 and September 17, 2008. He applied to the NBME to take

the exam a third time. NBME verified Plaintiff’s eligibility to

sit for the exam a third time with Howard and Dean Hassan, and

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decided that Mesumbe was eligible to re-take the exam between

December 5, 2008, and December 5, 2009.

Mesumbe maintains that he felt pressured to take the exam as

quickly as possible, in light of emails to all students from Dean

Hassan urging them to do so if they planned to graduate in May

2009. Plaintiff took the Clinical Skills exam for the third time

on January 26, 2009, and did not pass it.

Under Howard policy, students who fail the Clinical Skills exam

twice must satisfactorily complete a review program before taking

the exam a third time. Compl. ¶ 38; University Policies at 40.

Students must also obtain written approval from Dean Hassan to

enroll in the review program. If students fail the exam a third

time, they will be dismissed from Howard. Plaintiff, however, did

not enroll in the review program, and claims that he was, in fact,

unaware that he was required to take it.

Following his third unsuccessful attempt at the Clinical Skills

exam, Plaintiff met with Dean Hassan again, on January 28, 2009.

At that meeting, Dean Hassan asked about the test, and asked

Plaintiff whether he had taken a review program. Plaintiff met

again with Dean Hassan on April 8, 2009, to request assistance

before re-taking the Clinical Skills exam for a fourth time. At

this meeting, however, Dean Hassan informed Plaintiff that he would

be dismissed from the School, and that this was the first time the

dismissal policy would be applied, as no student had ever failed

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the Clinical Skills exam three times. Plaintiff alleges in the

Complaint that no student has ever taken the exam a third time

without the benefit of a review course. Following the meeting,

Mesumbe received a letter on April 17, 2009, stating that the

Promotions and Graduation Committee had voted that he be dismissed

under the University Policies because he failed the Clinical Skills

exam three times.

Plaintiff appealed the decision. Defendant Robert E. Taylor,

Dean of the Howard University College of Medicine, referred the

appeal to the Student Grievance Committee. The Committee met on

April 29, 2009, to review Plaintiff’s appeal, and recommended that

Plaintiff be allowed to take the Clinical Skills exam again.

At the Student Grievance Committee meeting, Plaintiff described

a telephone conversation between Samson Sozi, another Howard

medical student, and Defendant Irene Pandit, Director of Academic

Support and administrative assistant to Dean Hassan. The

conversation allegedly concerned a letter Sozi had received from

Dean Hassan reminding him that he was required to take a review

course because he had failed the USMLE Step 2 Clinical Skills exam

twice. During their conversation, Sozi asked Pandit why a friend

was not required to take the same review course. Pandit allegedly

“stated ‘you mean Mesumbe.’” Compl. ¶ 47. She also allegedly

explained that Plaintiff was not required to take the course

because his first attempt at the exam did not count, as it was

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taken during his third year. Mesumbe’s third attempt would be

considered his second attempt, for purposes of the review course

requirement. At some point after this conversation was mentioned

at the Student Grievance Committee meeting, Dean Hassan confirmed

with Sozi that someone from his office had discussed another

student’s academic records with him.

The Student Grievance Committee decided to allow Plaintiff to

take the exam a fourth time. Despite this decision, Dean Taylor

wrote Plaintiff a letter on May 13, 2009, stating that he could not

support the Committee’s recommendation “because it contravenes an

existing College of Medicine Policy.” Compl. ¶ 51. He then denied

Plaintiff’s appeal. The letter also stated that Plaintiff should

have known about Howard’s policies regarding the exam.

As a result of Plaintiff’s dismissal, he received an email

message from the United States Army on June 25, 2009, revoking his

orders from the Eisenhower Army Medical Center, where he was to

begin his residency training, and placing him on involuntary leave

of absence. He received another letter on June 25, 2009,

confirming that he had been placed on an involuntary leave of

absence from the Health Professions Scholarship Program, effective

May 10, 2009.

B. Procedural Background

Plaintiff filed his Complaint on August 20, 2009. The

Complaint contains three counts: discriminatory treatment in

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violation of 42 U.S.C. § 1981 (Count I); breach of contract (Count

II); and invasion of privacy (Count III). Defendants filed a

Motion to Dismiss on September 24, 2009, and the parties completed

briefing on October 28, 2009.

II. STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff

need only plead “enough facts to state a claim to relief that is

plausible on its face” and to “nudge[ ][his or her] claims across

the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “[O]nce a claim has been stated

adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint.” Id. at 563. A

complaint will not suffice, however, if it “tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (citing Twombly, 550 U.S. at

557).

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 Under the Twombly standard, a “court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs’ success . . . must assume all the allegations in the

complaint are true (even if doubtful in fact) . . . [and] must give

the plaintiff the benefit of all reasonable inferences derived from

the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame

Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)(internal quotation

marks and citations omitted).

When deciding a 12(b)(6) Motion to Dismiss, the Court may

consider “only the facts alleged in the complaint, any documents

either attached to or incorporated in the complaint and matters of

which we may take judicial notice.” E.E.O.C. v. St. Francis Xavier

Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); see Stewart v.

Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006).

III. ANALYSIS

A. Count I is Dismissed for Failure to State a Claim for
Intentional Discrimination Under § 1981.

In Count I, Plaintiff asserts that Defendants discriminated

against him in violation of § 1981, which provides equal protection

to “[a]ll persons within the jurisdiction of the United States . .

. to make and enforce contracts, to sue, be parties, give evidence,

and to the full and equal benefit of all laws and proceedings for

the security of persons and property.” 42 U.S.C. § 1981.

Plaintiff argues that, as a person of West African ethnic

background and race from the Republic of Cameroon, he is of a

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different race, ethnicity, and national background than other

similarly-situated students who “have not been dismissed by Howard

or otherwise treated differently,” and who “have been treated more

favorably” by Howard, under its educational contract with its

students. Compl. ¶¶ 57-58. He alleges that this disparate

treatment occurred because (1) unlike other students, he was

required to repeat his third year for failure to pass shelf exams,

and (2) unlike other students, he was not personally notified of

the requirement to enroll in a review course for the USMLE Step 2

Clinical Skills exam. See Compl. ¶¶ 25-26, 46.

“To state a claim for racial discrimination under Section 1981,

a plaintiff must allege that (1) the plaintiff is a member of a

racial minority; (2) the defendant intended to discriminate against

the plaintiff on the basis of race; and (3) the discrimination

concerned an activity enumerated in § 1981.” Mazloum v. Dist. of

Columbia Metro. Police Dep’t, 522 F. Supp. 2d 24, 37 (D.D.C.

2007)(quotations omitted). Defendants argue that Mesumbe has

failed to allege the second element of a § 1981 claim. Section

1981 “can be violated only by purposeful discrimination.” Gen.

Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391 (1982).

To plead intentional discrimination, “plaintiff cannot merely

invoke his race in the course of a claim’s narrative and

automatically be entitled to pursue relief. Rather, plaintiff must

allege some facts that demonstrate that race was the reason for

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defendant’s actions.” Bray v. RHT, Inc., 748 F. Supp. 3, 5 (D.D.C.

1990); see also Alexander v. Wash. Gas Light Co., 481 F. Supp. 2d

16, 31 (D.D.C. 2006) (quoting Bray). In Alexander, the court

dismissed a § 1981 claim for failure to plead intentional

discrimination, where plaintiff only stated that he was African-

American, with no allegation of racial motivation. 481 F. Supp. 2d

at 31.

Similarly in this case, nothing alleged in Mesumbe’s complaint

demonstrates a racially discriminatory motive. He makes a

conclusory allegation that similarly situated students of different

national origin, ethnicity, and race have been treated differently

and more favorably, but Plaintiff nowhere alleges that this

disparate treatment was racially motivated. Without some

allegation indicating the intent behind these disparate outcomes,

Plaintiff cannot state a claim for intentional discrimination.

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009).

Furthermore, none of the supporting facts Plaintiff includes

in the Complaint suggest a racially discriminatory motive. In

fact, Mesumbe does not even indicate the race, ethnicity, or

national origin of the students who allegedly received preferential

treatment. Compl. ¶¶ 25-26, 46. Giving Plaintiff the benefit of

all reasonable inferences, the facts alleged do not state a

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racially discriminatory motive. See Aktieselskabet, 525 F.3d at

17. Therefore, Plaintiff has failed to state a claim for

discrimination under § 1981.

B. The Court Lacks Original Jurisdiction Over Counts II and
III and Declines to Extend Supplemental Jurisdiction.

In light of the reasoning above, no federal claims remain in

this case since Counts II and III arise under the common law of the

District of Columbia. Plaintiff cannot establish diversity

jurisdiction under 28 U.S.C. § 1332. He does not plead the

citizenship of the individual Defendants, as is his burden. See

Dist. of Columbia ex rel. Amer. Combustion, Inc. v. Transamerica

Ins. Co., 797 F.2d 1041, 1043-44 (D.C. Cir. 1986). In fact,

Mesumbe is not diverse from all Defendants, as he and Defendants

Pandit, Dean Hassan, and Dean Taylor are all citizens of Maryland.

Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) at 4, Ex. A (Taylor Decl.)

¶ 3, Ex. B (Hassan Decl.) ¶ 3, Ex. C (Pandit Decl.) ¶ 3 [Dkt. No.

5-3]; Eze v. Yellow Cab Co., 782 F.2d 1064, 1065 (D.C. Cir. 1986)

(noting that 28 U.S.C. § 1332 requires complete diversity).

The only available basis for federal subject matter

jurisdiction over Counts II and III, then, is pendent jurisdiction,

pursuant to 28 U.S.C. § 1367. “Section 1367(c), however, gives

federal courts discretion to dismiss remaining state-law claims

after dismissing all claims that formed the basis for original

jurisdiction.” Walker v. Seldman, 471 F. Supp. 2d 106, 114 (D.D.C.

2007). “[I]n the usual case in which all federal-law claims are

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dismissed before trial, the balance of factors to be considered

under the pendent jurisdiction doctrine--judicial economy,

convenience, fairness, and comity--will point toward declining to

exercise jurisdiction over the remaining state-law claims.”

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see

also Shekoyan v. Sibley Int’l, 409 F.3d 414, 424 (D.C. Cir. 2005)

(quoting Carnegie-Mellon). The remaining contract and invasion of

privacy claims are local law issues, appropriate for local courts

to decide. See Walker, 471 F. Supp. 2d at 114. Additionally,

Plaintiff will suffer very little delay if he chooses to re-file in

Superior Court because this case was first filed less than one year

ago. Neither would he suffer logistical inconvenience, such as

being required to travel. Taking these factors into consideration,

the Court declines to extend pendant jurisdiction to Mesumbe’s

remaining claims.

1. Plaintiff’s Motion for Leave to Amend the Complaint
to Create Diversity Jurisdiction Is Denied Because
of Its Futility.

In his Opposition, Plaintiff requests leave to amend the

Complaint to remove the individually named Defendants if his

federal claim is dismissed. Pl.’s Opp’n at 3 n.1. Removing the

individual Defendants, who are all Maryland residents, would create

complete diversity between the Plaintiff and the remaining

Defendant.

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 Under Federal Rule of Civil Procedure 15(a), “a party may amend

its pleading once as a matter of course within . . . 21 days after

service of a motion under Rule 12(b) [or] (e).” Fed. R. Civ. P.

15(a)(1). Thereafter, a party must obtain leave from the court or

written consent from the adverse party. Fed. R. Civ. P. 15(a)(2).

In this case, the Amended Complaint would be filed more than

21 days after service of Defendants’ Motion to Dismiss, which was

filed September 24, 2009. In such a scenario, the district court

has discretion to grant or deny leave. Firestone v. Firestone, 76

F.3d 1205, 1208 (D.C. Cir. 1996). When a party requests leave from

the court, it “‘shall be freely given when justice so requires’

. . .[i]n the absence of any apparent or declared reason--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.” Foman

v. Davis, 371 U.S. 178, 182 (1962)(quoting Fed. R. Civ. P. 15(a)).

Amendments may be denied as futile “if the proposed claim would

not survive a motion to dismiss.” James Madison Ltd. by Hecht v.

Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). For reasons stated

below, neither of Plaintiff’s remaining Counts (II and III) survive

the Motion to Dismiss. Removing the individual Defendants as

Plaintiff requests to do in a proposed Motion to Amend the

Complaint, would not change this outcome for either Count.

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Therefore, Plaintiff’s Motion for Leave to Amend the Complaint is

denied.3

a. Count II Fails to State a Breach of Contract
Claim.

In Count II, Plaintiff asserts that he had a contractual

relationship with Defendants, based on his payment of tuition and

fees, and the school’s grant of “all of the privileges and rights

of being a student at Howard University.” Compl. ¶ 61. Plaintiff

further asserts that Defendants breached this contract by “not

allowing him to sit for the USMLE Step 2 Clinical Skills

examination after successful completion of a review program, as

required by the [University Policies].” Compl. ¶ 64.

To state a breach of contract claim, plaintiff must allege the

following elements: “(1) a valid contract between the parties; (2)

an obligation or duty arising out of the contract; (3) a breach of

that duty; and (4) damages caused by the breach.” Tsintolas Realty

Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009).

3
Defendants challenge Plaintiff’s request on the basis
that he failed to amend within the appropriate time. Defs.’ Reply
at 4. Although the proposed Motion for Leave to File would be
filed later than the 21-day window for amendments as of right, it
would be filed only a few months into the case and would seek only
to “make technical corrections” to the basis for federal
jurisdiction. Harrison v. Rubin, 174 F.3d 249, 253 (D.C. Cir.
1999). Such delay is not prejudicial to Defendants, and amendments
may be granted as a matter of the Court’s discretion. See id.
Nevertheless, Plaintiff’s Motion, if filed, would be denied as
futile, as explained above.

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 The contract between the parties is defined by the University

Policies, which outline the relationship between students and the

school.4 See Compl. ¶ 64 (citing a violation of the “Howard

University rules and procedures”). Defendants do not deny that a

contractual relationship existed between Howard and Plaintiff.5

Defendants do argue that Plaintiff has failed to allege sufficient

facts to plead a breach of that contract. Defs.’ Mot. at 15.

Plaintiff advances several arguments that Defendants violated

the contract, but none successfully state a breach. In the

Complaint, he argues that Defendants breached the contract by “not

allowing him to sit for the USMLE Step 2 Clinical Skills

examination after successful completion of a review program, as

required by the [University Policies].” Compl. ¶ 64. The

Policies, however, state only that “[s]tudents must pass the USMLE

Step 2 [Clinical Skills] in order to graduate,” and that

4
Although the Policies were attached to Defendants’ Reply,
the Court may consider their terms because Plaintiff refers to them
and quotes parts of them in the Complaint. Stewart, 471 F.3d at
173 (“In determining whether a complaint states a claim, the court
may consider the facts alleged in the complaint, documents attached
thereto or incorporated therein, and matters of which it may take
judicial notice”).
5
Defendants do deny that a contractual relationship exists
between Plaintiff and any of the individually named Defendants.
Defs.’ Mot. at 17. This argument does not affect the analysis of
the contract itself, however, and because Count II is analyzed in
light of the proposed Amended Complaint removing the individual
Defendants. Plaintiff’s contractual relationship with Defendant
Howard is the only one that requires consideration.

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 [a]ny student who does not pass the USMLE Step
2 [Clinical Skills] on the second attempt must
satisfactorily complete a program of review
before sitting for the examination for the
third time. The student must obtain written
approval from the Associate Dean for academic
Affairs prior to enrolling in the review
program. Students who are required to take
the examination for the third time must have a
passing grade reported by March 15 of the year
following the one in which they were scheduled
to graduate. Failure on the third attempt
will result in dismissal from the College of
Medicine.

University Policies at 40 (emphasis in original). Nothing in this

passage indicates that Defendants must permit a student to sit for

the exam so long as he successfully completes the review course.

At most, this passage provides a student the right to sit for the

exam a third time, after satisfying the review course requirement.

Mesumbe failed to satisfy this threshold requirement since he never

took, no less successfully completed, the review course. Comp.

¶ 48, Defs.’ Mot. at 15. In addition, he had already taken, and

failed, the exam three times. Id. at ¶ 39. Because Defendants are

under no obligation to permit students to sit for the exam an

unlimited number of times, they did not breach the contract by

refusing to permit him to sit for the exam a fourth time.

Plaintiff next argues in his Opposition that the University

Policies require Defendants to provide students with a review

course. Pl’s Opp’n at 3-4. However, nothing in the above-quoted

passage--or elsewhere in the Policies--obligates Defendants to

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provide the review course when a student fails to request

enrollment in it. Plaintiff never made such a request.

Alternatively, Plaintiff argues that Defendants breached the

contract by failing to notify him of the review course requirement.

Pl.’s Opp’n at 4-5. He asserts that, regardless of the written

terms of the contract, failure to notify was a breach of

Defendants’ “unwritten policy.” Id. at 5. However, the University

Policies state that

While students may be reminded of the policies
and procedures by the Dean or his/her
designees from time to time, each student
shall be bound by the policies even if the
student is not reminded of the policies by the
Dean or his/her designee.

University Policies at 1. The terms of the contract expressly

disclaim any obligation on Defendants’ part to notify students of

applicable “policies and procedures,” which includes enrollment in

the review course. Id. Thus, Defendants’ failure to notify

Mesumbe, even when some other students may have been notified, does

not create an “unwritten policy.” Their actions were consistent

with the terms of the contract, and do not constitute a breach.

Plaintiff further argues that the provision outlining the

procedure for enrolling in the review program is ambiguous, and

should thus be construed in his favor. Id. at 5. However,

“[a]mbiguities exist only if the term is ‘reasonably susceptible of

different constructions or interpretations,’” and “[i]t is not

enough that the parties disagree about the term's meaning.”

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Nationwide Mut. Ins. Co. v. Nat'l REO Mgmt., Inc., 205 F.R.D. 1, 12

(D.D.C. 2000) (applying District of Columbia law) (citations and

quotations omitted). Plaintiff reads this provision as obligating

Defendants to ensure that students enroll in the review program,

Pl.’s Opp’n at 5, but the University Policies, which state that

students “must satisfactorily complete a program of review” and

“must obtain written approval . . . prior to enrolling,” clearly

place that obligation on the students themselves. University

Policies at 40. The fact that students “must obtain approval from

the Dean for Academic Affairs prior to enrolling,” id., makes that

perfectly clear.6

Furthermore, “[i]t is a fundamental tenet of contract

interpretation that a contract provision should be interpreted,

where possible, as consistent with the contract as a whole.” BWX

Electronics, Inc. v. Control Data Corp., 929 F.2d 707, 711 (D.C.

Cir. 1991)(citing District of Columbia cases). When the USMLE Step

2 Clinical Skills provision is read in light of the provision

mandating that “each student shall be bound by the policies even if

the student is not reminded” of them, its meaning becomes even more

clear. University Policies at 1. Students alone bear the

responsibility to enroll in the review course.

6
Plaintiff concedes in his Complaint that every other
student who ever took the USMLE Step 2 Clinical Skills examination
a third time had first taken the required review program. Compl.
¶ 43.

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 In sum, giving Plaintiff the benefit of all reasonable

inferences, the Complaint fails to state a breach of contract claim

because Plaintiff cannot demonstrate that there was a breach of the

contract. See Saha v. George Wash. Univ., 577 F. Supp. 2d 439, 444

(D.D.C. 2008); Aktieselskabet, 525 F.3d at 17. Therefore, Count II

would not survive the Motion to Dismiss.

b. Count III Is Conceded for Failure to Respond
to Defendants’ Arguments; Alternatively,
Plaintiff Fails to State a Claim for Invasion
of Privacy.

In Count III, Plaintiff alleges that Defendants committed

invasion of privacy, or “the public disclosure of private facts,”

when Defendant Pandit disclosed his academic information to another

student. Compl. ¶¶ 68-69.

To state an invasion of privacy claim, Plaintiff must allege

“publicity [given] to a matter concerning [his] private life . . .

if the matter publicized is of a kind that (a) would be highly

offensive to a reasonable person, and (b) is not of legitimate

concern to the public.” Restatement (Second) of Torts § 652D.7

Defendants challenge Count III in the Motion to Dismiss,

arguing that Plaintiff failed to state a claim because he had not

sufficiently alleged the “publicity” element of the tort, which

requires dissemination of private facts to the “public at large,”

7
The District of Columbia Courts have adopted the Second
Restatement of Torts’ definition of invasion of privacy.
Vassiliades v. Garfinckel’s, Brooks Brothers, Miller & Rhoades,
Inc., 492 A.2d 580, 587 (D.C. 1985).

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and not merely “a single person or even . . . a small group of

persons.” Defs.’ Mot. at 18 (quoting Restatement (Second) of Torts

§ 652D, cmt. a (1977)). Plaintiff did not address Defendants’

arguments against Count III in his Opposition.

“When a plaintiff files a response to a motion to dismiss but

fails to address certain arguments made by the defendant, the court

may treat those arguments as conceded.” Fox v. Am. Airlines, Inc.,

Civ. No. 02-2069, 2003 WL 21854800 at *2, aff’d, Fox v. Am.

Airlines, Inc., 389 F.3d 1291 (D.C. Cir. 2004). Thus, Plaintiff’s

invasion of privacy claim is deemed conceded.

On the merits, Defendants are correct that Plaintiff failed to

plead that his claim was publicized in a manner that would permit

recovery. He alleges that Defendant Pandit disclosed his academic

records to one person, Sozi. Compl. ¶ 47. Publication to a single

person, as already noted, does not constitute invasion of privacy

under District of Columbia law. Restatement (Second) of Torts §

652D cmt. a; see Steinbuch v. Cutler, 463 F. Supp. 2d 1, 5 (D.D.C.

2006) (discussing state law and the Restatement (Second) of Torts).

Thus, Count III would not survive a Motion to Dismiss, even if not

conceded.

Because neither Count II or Count III would survive the Motion

to Dismiss, the Court denies Plaintiff’s Motion for Leave to Amend

the Complaint. See Ludwig, 82 F.3d at 1099. Amendment would be

futile because removing the individual Defendants would not save

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either Count. Because the parties are not completely diverse, and

the federal claim in Count I has been dismissed, the only basis for

jurisdiction over Counts II and III is pendent jurisdiction under

§ 1367. Taking into consideration factors including judicial

economy, convenience, fairness, and comity, the Court declines to

allow the state law claims in Counts II and III to proceed. See

Shekoyan, 409 F.3d at 424.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss

is granted. An Order will issue with this opinion.

April 19, 2010 /s/
Gladys Kessler
United States District Judge

Copies to: counsel of record via ECF

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