Rubio v. District of Columbia ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
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JESSICA RUBIO, )
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Plaintiff, )
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v. ) Civil Action No. 10-262 (RWR)
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DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
______________________________)
MEMORANDUM ORDER
Plaintiff Jessica Rubio filed a two-count complaint under
42 U.S.C. § 1983 against the District of Columbia and Corrections
Corporation of America (“CCA”), for purported violations of her
constitutional rights that occurred while Rubio was incarcerated
on separate occasions in 2008 and 2009. (Compl. ¶ 6.) On
March 16, 2010, CCA moved under Federal Rule of Civil Procedure
12(b)(6) to dismiss Count II of the complaint as it applied to
CCA. Rubio filed no opposition. Instead, on March 23, 2010,
Rubio filed a motion for leave to file an amended complaint that
adds one count of false imprisonment. The District of Columbia
filed no opposition to Rubio’s motion. However, CCA opposed
Rubio’s motion, arguing that Rubio’s motion was untimely, and
that the proposed new count would be futile because CCA could not
be held liable under that count.
Count III of Rubio’s amended complaint does not name CCA and
seeks to hold liable only the District of Columbia. Moreover,
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Rubio was entitled to amend her complaint as a matter of course
within 21 days after CCA filed its motion to dismiss. Fed. R.
Civ. P. 15(a)(1)(B). Thus, Rubio’s motion was neither untimely
nor even necessary, and will be granted.
Count II of the amended complaint is identical to Count II
of the original complaint, and CCA’s motion to dismiss will be
treated as one to dismiss Count II of the amended complaint.
Since Rubio filed no opposition, CCA’s motion will be deemed
conceded, and will be granted. See Local Civil Rule 7(b); Fox v.
Am. Airlines, Inc., 389 F.3d 1291, 1294-95 (D.C. Cir. 2004)
(affirming a district court’s dismissal of a complaint where the
plaintiff failed to comply with Local Civil Rule 7(b)); see also
Cooper v. Farmers New Century Ins. Co., 607 F. Supp. 2d 175, 180
(D.D.C. 2009) (granting motion to dismiss as conceded based on
the plaintiff’s failure to respond to arguments raised in the
motion); Bonaccorsy v. Dist. of Columbia, 685 F. Supp. 2d 18, 24
(D.D.C. 2010) (citing CSX Transp., Inc. v. Commercial Union Ins.,
Co., 82 F.3d 478, 482-83 (D.C. Cir. 1986) and Felter v. Salazar,
679 F. Supp. 2d 1, 4 n.2 (D.D.C. 2010)). Therefore, it is hereby
ORDERED that Rubio’s motion [6] for leave to file an amended
complaint be, and hereby is, GRANTED. It is further
ORDERED that the Clerk file the amended complaint [#6-1].
It is further
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ORDERED that CCA’s motion [2] to dismiss Count II as it
applies to CCA be, and hereby is, GRANTED. Count II of the
amended complaint is dismissed as it applies to CCA.
SIGNED this 29th day of November, 2010.
/s/
RICHARD W. ROBERTS
United States District Judge