J OHN C. CHEEKS,

Plaintiff,

v. FORT MYER CONSTRUCTI ON COMPANY, et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 09-2163 ( CKK)

MEMORAN DUM OP INION (June 25, 2010) Plaintiff J ohn C. Cheeks (“Che eks”) filed this action pro se seekingrelief for injuries alleg edly suffe red f

rom a bid-r igg ing c onspiracy in which his company , Cheeks of N orth Americ a, Inc. (“ CNA”), lost construc tion contrac ts to competitors who conspired a g ainst him in the bidding pr ocess. Na

med as de fenda

nts in thi s action ar e four

of those compe titors (Fort Myer Construction Corporation, Anchor Construction Corporation, Civil Construction, L L C, and Capitol P avingof D.C., Inc.); their of fice rs (F ranc isco R. Neto, J ose Rodriguez, L ewis Shrensky , Cristina Greg oria); their

guara ntor and its office r (Western Sure ty Company

and Paul T. B ruflat) ; the District of Columbia Water and Sew er Authority ’s Procure ment Depa rtment, Boa

rd of Direc tors, and Retail Service s Commi ttee and va rious individuals associated ther ewith (Avis Russell, J err

y J ohnson, Guss Ba ss, J ohn Christodoulakis, C arlo Enc iso, W illiam M. W alker , Neil Albert, Da

niel M. Tang herlini, F. A lexi s H. Roberson, Alan J. Roth, Keith M. S tone, David J. Ba rdin, Br enda Richa

rdson, J oseph Cotruvo, and How ard G ibbs); the D.C. Depa rtment of Transpor tation’s Offic e of Contra ctingand Procur ement and its off icer s (David P. Gra g an, JerryM. Carter, G abe K lein); the D.C. Depa rtment of Tra

nsportation’s Infra structure Project Manag ement Administration and its prog ram mana g er ( Said Cherifi); the D.C. De partment of Public W orks’s Of

fice of Contrac ting a

nd Procure ment and its contrac ting of fice rs (Ta ra Sigimoni and J ames Rober ts); the D.C. Council Com mittee on Public W orks and Tr ansportation and its members a

nd staff ( J im Graham, Kwame R. B rown, Murie l Bowse , Phil M endelson, Tommy Wells, S teven He rnande z, J onathan Ka ss, and J ohn DeTa eye); the Executive Of fice of the Mayor of D.C.; and D .C. May or Adria n M. Fe nty

. All but one of the de fenda nts has enter ed an a

ppear ance in this m atter, a nd one of the defe ndants (F ort My er Construction Corporation) is in default. Presently pendingbefor e the Court are a ser ies of dispositive and nondispositive moti ons, including motions to quash servic e of proc ess and motions to dismi ss the Complaint. As ex plained below, the Court finds that the claims asser

ted in Counts One throug h Seventee n of the Complaint are based on injuries to CNA and that Chee ks lacks standingto assert those c laims on his own. Bec ause the lack of standing deprive s the Court of subject matter jurisdiction, the Court mustdismiss Counts One throug h Seventee n of the Complaint ag ainst all defe ndants. The Court also finds that the r emaining claims asser

ted in the Complaint for alleg ed constitutional deprivations fa il to st ate a claim upon which re lief ca

n be g rante d. Although some defe ndants did not move to dismi ss these re maining claims, the Court finds that the alleg ations in the Complaint clearly fail to state a c laim and may be dismissed ag ainst the other de fenda nts sua sponte . There fore , the Court shall set aside the defa ult ag ainst Fort Myer Construction Company and dismiss the Compl aint in its entirety

.

2I. BACKG ROUND

A. Facts Alleged in the Complaint Plaintiff J ohn C. Cheeks is Chief Ex ecutive O ffice r of Chee ks of North Ame rica , Inc. (“CNA” ). Compl. ¶ 38. Cheeks is one of the founder s and the owne r of CNA, a nd he is eng ag ed primarily in industrial services, infr astructur e improveme nts, professional c onsulting of alternative fuels and e nergy sy stems, and strateg ic business deve lopment. Id. ¶ 4. Cheeks a lso

serve s as CNA’s Senior Projec t Estimator and has the r esponsibility for a ssembling c ost estimates for c ompetitive project bids submitted by CNA. See id. ¶¶ 43- 45. During2008 and 2009, Cheeks par

ticipated in five solicitations for bids issued by contra ctingag encie s: three issued by the District of Columbia Water and Sew er Authority (“WASA”), one issued by the District of Columbia Depar tment of Tra

nsportation (“D DOT” ), and one issued by the District of Columbi a De partment of Public Works (“D PW ”). Id. ¶¶ 39- 42.

1. WASA I FB No. 080020 On August 20, 2008, Cheeks submitted a bid for CNA in re sponse to WASA’s Invitation for B id (“I FB ”) N o. 080020, entitled “Replac ement of Small Diamete r Priority Water Mains for 2008 Construction.” SeeCompl. ¶ 48 & Ex. D.7.1 (Bid Submission Form). Cheeks pr oposed that CNA would furnish all plant, labor , materia ls, and equipment to perf orm the work se t forth in the I FB for $11,154,500, a nd he submitted a bid bond in the amount of $557,725 via c ompany chec ks. See id. ¶ 48 & Ex s. D.7.2 (B id Bond), D .7.5 (Checks) . On the af ternoon of August 20, 2008, WASA procureme nt office r Carlo Enc iso opened the bids that we re r ece ived. Id. ¶ 50. Amongthe other bidde rs wer e De fenda nts Civi l Construction, L L C (“Civil Cons truction”), Anchor Construction Corporation (“Anchor” ), F ort My er Construction Corpora tion (“F ort

3My er” ), and Capitol Pavingof D.C., Inc. (“ Capitol P aving ”). See id. ¶ 51 & Ex . D.9.1 (B id

Tabulation Sheet). Che eks alleg es that De fenda nt Western Surety

Company

(“Wester n Surety”) issued g uara

nteed bid bonds on beha lf of these other bidder s. See id. ¶ 50. CNA’s bid wa s the lowest of the e ight bids re ceive d and wa s announce d as the lowe st bidder. Id. ¶ 51 & Ex . D.9.1. On September

9, 2008, Cheeks re ceive d a letter from WASA ContractingOffic er Jerry J ohnson informing him that the bid submi tted on August 20, 2008 had bee n deeme d nonresponsive a

nd there fore was not elig ible for a war d. Id. ¶ 53 & Ex . H.1.1 (Sept. 9, 2008 letter)

. The re jection letter infor

med Cheeks that “ [e] lements consider ed in this decision wer e that your bid did not include a completed B id Bond with sure ties or ce rtified che ck[s] for f ive per cent ( 5%) of the bid amount.” See id. , Ex . H.1.1. On September 30, 2008, Cheeks filed a

Bid Protest with WASA requesting“equitable allotted time to reissue the bid bond to DC WASA.” Id. ¶ 54 & Ex . K.1.1-2 (B id Protest). On Octobe r 23, 2008, WASA Director of Procur ement John P

. Christodoulakis is sued a le tter statingthe ContractingOffic er’ s decision re jectingCheeks’s bid protest. See id. , Ex . K.1.4-5 (O ct. 23, 2008 letter) . The letter stated that Cheeks’ s bid protest was untimely

filed and that the bid was prope rly reje cted f

or fa ilure to include bond sec urity

. Id. On Novembe r 6, 2008, the WASA Boa rd of Dir ector s g ave a

pproval to aw ard Contra ct No. 080020 to the next l owest bidder, Anchor Construction Corporation. Id. ¶ 55 & Ex . G.1.11 (Nov. 6, 2008 Resolution).

2. WASA I FB No. 090080 On Marc h 25, 2009, Cheeks submitted a bid for CNA in r esponse to WASA’s I FB No. 090080, entitled “Sanitary Sewer L ater al Replac ements.” See Compl., Ex . D.9.2 (B id Tabulation Sheet). The amount of the bid wa s listed on the bid call sheet a s $11,298,320, which wa s the

4highe st of the seve n bids rece ived. See id. On Marc h 29, 2009, Cheeks filed a Bid Protest indicatingthat CNA’s ac tual base bid (a fter de duction of conting ent items) was $5,040,000, makingit the lowest of the seve n bids rece ived. See Compl., Ex . K.2.1-2 (B id Protest). WAS A alleg edly failed to re spond to Cheeks’s bid protest. Id. ¶ 57. The c ontrac t was ultimately

awa rded to the or igina l low-bidder, Corinthian Contrac tors. See Compl., Ex . D.1.10 (WASA Ex ecute d Construction Contract Summary ). The othe r bidders inc luded Def endants F ort My er, Anchor , Civil Construction, and Capitol Paving. See id. , Ex . D.9.2.

3. WASA I FB No. 090020 On April 1, 2009, Cheeks submitted a bid for CNA in response to WASA’s I FB No. 090020, entitled “F ire Hydrant Replac ement Contrac t 4.” See Compl., Ex . D.7.3 (B id Form). The amount of the bid was $2,817,600, and Che eks submitted a bid bond for $140,880 with corpor ate c hecks. Id. , Ex . D.7.4-5 (B id Bond, c hecks) . The other bidders included D efe ndants For t My er, Civil Construction, Capitol Paving, a nd Anchor

. Id. , Ex . D.9.3 (B id Tabulation Sheet). The c ontrac t was ultimately awa rded to the lowe st bidder, Nastos Construction, Inc. See id. ; id. , Ex . D.1.10 (WASA Ex ecute d Construction Contract Summary ). 4. DPW I FB No. DCKT-2009- B- 0003 Cheeks submitted a bid for CNA in r esponse to DPW’s I FB No. DCKT-2009- B- 0003, entitled “On- Site Preventive Maintena nce Ser vices.” See Compl., Ex . D.11.1 (B id Tabulation Sheet). The total amount of the bid was $3,639,901, a nd it was the lowest bid re ceive d when the bids were opened on D ece mber 29, 2008. See id. On Dec ember 30, 2008, DPW C ontrac ting Offic er James Roberts sent a le tter by fax to Cheeks expl ainingthat the low bidder is not automatically

awa rded a contra ct and that c ontrac tors must demonstrate re sponsibili ty for the

5projec t; the letter aske d Cheeks to provide c erta in background information about finance s and

operations. See id. , Ex . D.19.1-4 (D ec. 30, 2008 le tter). Chee ks faxed a letter to Roberts reque sting a dditional tim e to provide this information, and Robe rts allowed Chee ks to have two additional day s. See id. ¶ 287. Howe ver, Chee ks appar ently was una ble to provide suff

icient information in time for DPW. 1

5. DDOT I FB No. DCKA-2009- B- 0025 Cheeks submitted a bid for CNA in r esponse to DDO T’s I FB No. DCKA-2009- B- 0025, entitled “Paveme nt Restoration City -Wide.” See Compl., Ex s. D.8.1 (B id Form) & D.10.3 (B id Tabulation Sheet). T he sea led bid openingwas he ld on March 18, 2009. Compl. ¶ 297. The six th amendment to the I FB was e mailed to Cheeks on Mar ch 16, 2009. Id. In order to strateg ically

compete f

or the c ontrac t, Cheeks had to re adjust the bid. Id. ¶ 299. The a mount of the bid was $54,252,805. See Compl. ¶ 42. This was the lowe st bid reflec ted on the B id 2 Tabulation Sheet. See id. , Ex . D.10.3. The othe r bidders inc luded Def endants F ort My er a

nd Capitol P aving

. Id. DDOT’ s ContractingOffic er, Jerry M. Carter, ha d conce rns with the ty pe of bid gua rante e submitted by

Cheeks and de nied Cheeks time to re submit hi s bond form. Id. ¶¶ 302-03. Cheeks’ s bid was re jected by letter fr om J err

y M. Carter dated May

27, 2009. Id. ¶ 306. Cheeks filed a

Bid Protest on beha lf of CNA. See id. , Ex . K.4.4-5 (B id Protest). 3 Cheeks alleg es that two of other bidders, F ort My er a

nd Capitol P aving , have sha red

The a lleg ations in the Complaint do notdescr ibe the outcome of this process. 1 There is a discre pancy

betwee n the amount of the bid listed on the B id Tabulation Sheet 2 ($54,552,805) a

nd the amount desc ribed in the Complaint. Cheeks has not provide d a copy of this letter or e x plained the r easons pr offe red by 3 DDOT f or the re jection of the bid. 6owner ship or family rela tions. See Compl. ¶ 304. B. Claims Asserted in the Complaint Cheeks asse rts 18 counts in his Com plaint, which the Court shall summarize below. Cheeks pra

y s for re lief in the for

m of damag es in the amount of $1,778,010,862.95. See Compl. ¶ 383. 1. Counts One, Two, Thre e, F our, F ive, Seven, Ele ven, Twe lve, and

Thirteen: Antitrust Violations for B id-Rigg ing Conspira cy The fir st four counts in the Complaint are a sserted a g ainst Defe ndants For t My er, Anchor, Civil Construction, Capitol P aving , and thre e individuals who are office rs of one or more of these c ompanies: Fr ancisc o Rodrigue z Neto (“Ne to”), Jose Rodrigue z (“Rodrig uez”), a nd L ewis Shrensky (“Shre nsky ”). See Compl. at 25, 30, 35, 37. Rodriguez is alleg ed to be a Direc tor of Anchor , principal owne r of F ort My er, a nd principal mana g er of

Civil Construction. Id. ¶ 71. Shrensky is alleg ed to be the Sec reta ry , Trea surer , Direc tor and Reg istered Ag ent of F ort My er and a pr incipal manag er of Civil Construction. Id. ¶ 73. Ne to is alleg ed to be the V ice Pre sident and a D irec tor of F ort Myer, a Direc tor of Anc hor, and the President, Tre asure r, and a Direc tor of Capitol P aving

. Id. ¶ 74. 4 In Count One, Cheeks a lleg es that these D efe ndants wer e eng ag ed in a bid-r igg ing conspirac y

in violation of section 1 of the Sherma n Antitrust Act, 15 U.S.C. § 1. Id. ¶¶ 63- 68. Cheeks cla ims that Fort My er, Anchor, Civil Construction, and Capitol P avingshare d common

owner ship and submitted collusive bids in order to make the w inning bidder appea r compe titive

In an af fidavit filed with the Court, Neto state s that he is President of Capitol Paving but 4 is not an employ ee or

office r of F ort My er. See [43] Suppl. Defs. Neto & Capitol P aving ’s Mot. to Quash Service , Ex . B ( Aff. of Fr ancisc o R. Neto) ¶¶

4-5. 7and re asonable

. Id. ¶¶ 68, 78. Chee ks contends that Western Sure ty fac ilitated this bi d-rig g ing conspirac y

by secur ing bonds f

or these c ompanies whe n it knew or should have known that they

wer e eng ag ed in collusive anti-c ompetitive prac tices made possible by its bond gua

rante es. Id. ¶ 70. Cheeks also c laims that W ASA, DDOT, a nd the D.C. Council Comm ittee on Public Works and Tra nsportation aided a

nd abetted this conspira cy by acc eptingand ultimately awa rdingbids to one of the c onspiring c ompanies. Id. ¶ 69. Cheeks c ontends that this bid-rigg ing c onspiracy preve nted him from winningbids and competitively injured him. Id. ¶¶ 77- 79. In Count Two, Cheeks makes substantially identical alleg ations and asse rts a violation of D.C. Code § 28-4502, which is substantively identical to sec tion 1 of the Sherman Ac t. See Compl. ¶¶ 81-92. In Count Three, Chee ks alleg es that De fenda nts’ prac tices constituted a pr icefix ing c ombination in viol ation of sec tion 1 of the Sherman Ac t. See id. ¶¶ 93- 99. In Count Four , Cheeks alleg es that De fenda nts’ bid-rig g ing sc heme c onstitut es common law f raud. Id. ¶¶ 100- 25. Cheeks asse rts that the ag encie s who wer e involved in the solicitation of bids “per petrated this fraud” by

acc eptingbids from the construc tion companies knowingthat they share d common owner ship. Id. ¶ 107. I n Count S even, Che eks alleg es that bid-rig g ing conspirac y

constitutes a violation of section 1 of the Sherman Ac t by the four c onstruction company defe ndants (F ort My er, Anchor, Civil Construction, and Capitol P aving ), the thre e WASA entity

defe ndants (the WASA Procure ment Depa rtment, the WASA Boar d of Dire ctors, and the WASA Retail Services Committee), the D DOT Of fice of Contrac ting a

nd Procure ment, and the D.C. Council Commit tee on Public Works and Tra nsportation. See Compl. at 56-57, ¶ 167.

8Count Eleven is asserte d ag ainst Defe ndants Rodrig uez, Shrensky , and Ne to and alleg es

that these de fenda

nts violated the Clay

ton Antitrust Act, 15 U.S.C. §§ 12 et seq. , by orche strating collusive bidding pr actice s. See Compl. at 79, ¶¶ 238-41. Count Twelve a sserts a similar cla im ag ainst the four c onstruction company defe ndants (F ort My er, Anchor, Civil Construction, and Capitol P aving ). See id. at 84, ¶¶ 250- 52. Count Thirteen alleg es that Western Surety violated the Sherma

n Act by issuing bonds for the f our construc tion company defe ndants and fa cilitating their collusive bidding pr actice s. See Compl. at 87, ¶¶ 263-66. Count Five of the Complaint is merely captioned “ Others in Que stion - Names, Relations and Af filiations of Defe ndants in Question; Pardon Remedy” and lists no specific defe ndants. See Compl. at 42. I n Count Five, Cheeks ide ntifies other pa rties who we re involved in the f ive bid solicitations i n question and poses que stions about their relationship to the named de fenda nts. See id. ¶¶ 126- 47.

2. Count S ix : Violation of WAS A Procure ment Regulations Count S ix alleg es violations of WASA procure ment regulations by the WASA Procure ment Depa

rtment and va

rious individuals affiliated with WASA: Avis Russell, Interim Gene ral Mana g er; Jerry

J ohnson, Gene ral Mana g er; Guss B ass, Prog ram Mana g er of Service s: Eng ineer ing a

nd Tec hnical Servic es; J ohn Christodoulakis, P rocur ement Dire ctor; and Car lo Enciso, Senior Construction Contract Administrator. See Compl. at 52. Cheeks contends that the re jection of his bids for WASA I FB Nos. 080020, 090080, and 090020 violated WASA regulations beca

use WASA failed to notify Cheeks of mistakes in his bids (such a s the omission of a sur ety

) and a llow him to correc t the mistakes. See id. ¶¶ 151- 57.

93. Counts Eight, Nine, a nd Seventee n: Tortious I nterfe renc e In Count Eight of the Complaint, Cheeks alleg es that the four construction compa

ny defe ndants (F ort My er, Anchor, Civil Construction, and Capitol P aving ), the WASA Procure ment Depa

rtment, and the D DOT Of fice of Contrac ting a

nd Procure ment are liable for tortious interfer ence with business relationships. See Compl. at 60, ¶ 177. Cheeks alleg es that these de fenda

nts interfer ed with the contr actua l relationship established with WASA when Cheeks submitted low bids. See id. ¶¶ 178- 81. Count S evente en asse rts a similar claim ag ainst the same de fenda

nts. See id. at 109, ¶¶ 343- 51. Count Nine asserts a

simil ar c laim ag ainst the construc tion company defe ndants and their office rs (F ort My er, Anchor, Civil Construction, Capitol Paving, Rodriguez, Shrensky , and Neto). See id. at 65. Cheeks a lleg es that these de fenda nts are liable for “ tortious interfer ence with prospective busine ss advantag e” by interfe ringwith the business relationship that Cheeks was de velopingwith WAS A and DD OT. Id. ¶¶ 195- 203. Cheeks cla ims that these defe ndants improperly

used their supe rior fina

ncial and institutional resourc es to obtain favor able bid solicitation treatment. Id. ¶ 197.

4. Count Ten: Violation of Non-Collusion Affidavit Count Ten of the Complaint alleg es that the c onstruction company defe ndants and their office rs (F ort My er, Anchor, Civil Construction, Capitol Paving, Rodriguez, Shrensky , and Ne to) falsely submitt ed a “Non-Collusion Affidavit” to WASA and DDOT in c onnection with their bids. See Compl. at 76. Cheeks claims that these de fenda nts violated the non-collusion rules a nd conditions for par

ticipating in WASA and DDO T bid solicitations. See id. ¶¶ 225- 26.

105. Count Fourtee n: Discrimination in Bid Solicitations

Count Fourtee n alleg es that the WASA Procure ment Depa rtment and its individual office rs (De fenda

nts Avis Russ ell, J err

y J ohnson, Guss Ba ss, J ohn Christodoulakis, and Carlo Enciso), a s well as DPW’s Office of Contrac ting a nd Procure ment and two of its contra cting office rs (De fenda

nts Tara Sigamoni and James Roberts), unlaw fully discriminated ag ainst the bids submit ted by

Cheeks. See Compl. at 90, ¶¶ 273-87. 6. Count Fifteen: Contrac t Steering Count Fifteen is a sserted a g ainst the Mayor of the D istrict of Columbia, Adrian M. Fe nty , the Executive Off

ice of the Mayor, the DD OT Off ice of Contractingand Procur ement and

sever al of its officia ls (David P. Gra g an, Chief Proc ureme nt Office r; J err y M. Carter, Contra cting Offic er; a nd Gabe Klein, DDOT Direc tor), and the DDOT Infra structure Project Mana g ement Administration and its progr am manag er, Said Cher ifi. See Compl. at 95. Cheeks alleg es that these de fenda

nts steere d contra cts toward F ort My er, Anchor, Civil Construction, and Capitol Paving by g iving pr efe rential tre atment to these c ompanies and c reating c ontrac t specifications that only these c ompanies could fulf ill. See id. ¶¶ 293- 94. Cheeks alleg es that Jerry Carter , DDOT Contra ctingOffic er, a mended the c ontrac t for bid No. DCKA- B- 2009-2025 so as to provide F ort My er a

nd Capitol P avingwith a competitive adva ntag e. See id. ¶¶ 296- 300. Cheeks fur

ther a lleg es that Carte r denie d Cheeks time to cure defe cts in his bid. See id. ¶¶ 302- 03. 7. Count S ix teen: Ove rsig ht Failure Count S ix teen is asse rted a g ainst the construc tion company defe ndants (F ort My er, Anchor , Civil Construction, and Capitol Paving) a nd their off

icer s (Shrensky , Rodrigue z, Neto,

11and Cristina R. Greg oria), the WASA Board of Direc tors (Will iam M. Walker, Danie l M. Tangherlini, F. A lexi s H. Roberson, Alan J. Roth, Keith M. S tone, and Da vid J . Ba rdin), the D.C. Council Comm ittee on Public Works and Transporta tion and its members and staf f (Jim Gra

ham, Kwame R. Brown, Muriel B owser, Phil Mendelson, Tommy Wells, S teven He rnande z, J onathan Kass, and John DeTae y e), the Ex ecutive O ffice of the Mayor, and D .C. May or Adria n M. Fe nty

. See Compl. at 101-02. Cheeks claims that these de fenda nts “overlooke d, blessed and c ondoned collusion activity ” and a llowed fra udulent contra ct bid participa tion. Id. ¶¶ 318- 19. 8. Count Eightee n: Violation of Civil L iberties Count Eightee n is asserted a g ainst the four c onstruction company defe ndants (F ort My er, Anchor , Civil Construction, and Capitol Paving) a nd their off

icer s (Shrensky , Rodrigue z, and Neto), the Ex ecutive O ffice of the Mayor, and D .C. May or Adria n M. Fe nty

. See Compl. at 114. Cheeks alleg es that the de fenda nts conducted a

n illega l investigation into C heeks a nd his associate s. Id. ¶ 360. Cheeks c laims that he was f ollowed by

Def endants a nd that Def

endants share d information about his private a nd public movements, his vehicle, his re sidence , and whe re he dined. See id. ¶¶ 361- 63. Cheeks fur ther c laims that Defe ndants surveilled him throug h, amongother thing s, photogr aphy , wirele ss electr onic eavesdroppingand interc eptingequipment, human private investigators, and vehic ular tra iling. Id. ¶ 364. C. Procedural History Cheeks filed this ac tion pro se on November 17, 2009. On Dec ember 14, 2009, a def

ault 5

Cheeks litigated this action pro se until May 18, 2010, when c ounsel enter ed an 5 appea ranc e on his beha lf. Be cause all of the pe nding motions wer e fully briefe d befor e counse l enter ed an a

ppear ance , the Court trea ts Cheeks as a pro se litigant for purposes of this Memorandum Opinion. 12was e ntere d ag ainst Fort Myer, a nd Cheeks filed a

Motion for Def

ault J udg ment. For

t My er opposes the motion and has moved to va cate the entry of def ault, claimingthat For

t My er w as

never proper ly serve d beca

use the summons and complaint we re le ft with the company ’s

rec eptionist, who is not authoriz ed to ac cept se rvice of proc ess. SeeDocke t No. [27] . On Dec ember

17, 2009, Def

endants Capitol Paving a

nd Neto filed a

Motion to Quash Service, claimingthat Cheeks had imprope rly serve d proce ss on Capitol P aving ’s re ceptionist. See Docke t No. [17] . On J anuar y 7, 2010, Def

endants Rodriguez and Shrensky filed a Motion to Quash Servic e of Proc ess, claimingthat Cheeks improper ly serve d them by

leavingpaper s with an off icial at F ort Myer. See Docke t No. [64] . Also on J anuar y 7, 2010, the individual WAS A Def endants (Avis Russell, J err y J ohnson, Guss Ba ss, J ohn Christodoulakis, C arlo Enc iso, Wil liam M. W alker , Neil Alber t, Daniel M. Tangherlini, F. A lexi s H. Roberson, Alan J. Roth, Keith M. Stone, David J. Bardin, B renda Richardson, Joseph Cotruvo, and Howar d Gibbs) filed a Motion to Quash Service of Proce ss, claiming that Cheeks’s ser vice on the WASA B oard Secre tary was not ef

fec tive service as to them. See Docke t No. [65] . Cheeks opposes these motions, and they

have be en fully

briefe d. On Dec ember

21, 2009, Def

endants Western Sure ty

and Paul T. B ruflat f

iled a Motion to Dismiss under Fe dera l Rule of Civil Procedur e 12(b) (6). See Docke t No. [31] . On J anuar y 28, 2010, the District of Columbia Def endants (D istrict of Columbia, May or Adria n M. Fe nty , Ex ecutive O ffice of the Mayor, David P. Grag an, DDO T Off ice of Contractingand Procur ement, J err y M. Carter, G abe Klein, DDOT Infra structure Project Mana g ement Administration, Said Cherifi, DPW Office of Contrac ting a nd Procure ment, J ames Rober ts, and Tar a Siga

moni) filed a Motion to Dism iss the Compl aint or, in the Alternative, for Summary J udg ment, claimingthat

13Cheeks has f ailed to state a

claim ag ainst them and that Cheeks w as not awa rded the contra cts beca use he f ailed to comply

with bid procedur es. See Docke t No. [81] /[ 82]. On J anuar y 29, 2010, the individual WAS A Def endants (na

med in the pre cedingpara g raph) filed a Motion to Dismiss for failure to state a c laim upon which re lief ca n be grante d. See Docke t No. [83] . Also on J anuar y 29, 2010, the D.C. Council Defe ndants (Committ ee on Public Works and Transpor tation (members Jim Graham, Kwa me R. Brown, Muriel B owser, Phil Mendelson, and Tommy Wells, and staff member s Steven Her nandez, J onathan Ka ss, and J ohn DeTa eye) f iled a Motion to Dism iss based on leg islative immuni ty and fa ilure to state a c laim upon which re lief can be grante d. See Docke t No. [84] . The same day , Def endant Civil Const ruction filed a Motion to Dism iss Complaint pursuant to Rules 12(b)(5) for insuff icient servic e of pr ocess, 12(b)( 6) for

failure to state a c laim upon which re lief ca n be g rante d, and 12(b) (7) a nd 19 for failure to join a nece ssary party

. See Doce kt No. [85] . Def endant Anc hor also filed a Motion to Dismiss under Rule 12(b)(6)

. See Docke t No. [88] . Cheeks opposes these motions, and they have be en fully

briefe d. 6 Cheeks has a lso filed various motions seekingto amend or suppleme nt his briefs filed with the Court, some of which a re oppose d. See Docke t Nos. [96] , [100] , [111] , [112] , [119] ,

Be cause Cheeks brought this action pro se , the Court issued order s pursuant to Fox v

. 6 Strickland , 837 F.2d 507 ( D.C. Cir. 1988), advisingCheeks that if he failed to re spond to Def endants’ motions to dismis s, the Court might trea t the motions as concede d. See Docke t Nos. [25] , [36] , [38] , [39] , [67] , [90] , [117] . Cheeks filed timely response s to these orde rs. When Cheeks fa iled to file a timely response to the District of Columbia Defe ndants’ motion to dismiss , the District of Columbia Def endants moved the Court for an or der de emingtheir dispositi ve motion conce ded. See Docke t No. [116] . Howeve r, the Court had not yet issued a Fox order with respec t to that moti on, and Chee ks timely responde d to the Court’s Fox order

. There fore , the Court shall DENY the D istrict of Columbia Defe ndants’ [116] Motion to Deem Concede d Their Motion to Dismiss t he Complaint or, in the Alternative, for Summary J udg ment. 14[122] . The Court has c onsidered a ll of the materia ls submit ted by Cheeks in dec iding the pendingmotions and shall therefor e g rant the motions. Def endant Anc hor has a lso filed a [126] Motion for L eave to File Reply and Opposition to Pl aintiff’s Response and Motion to Dismis s, with a proposed r eply

brief a ttached. The Court finds that Cheeks w ill not be prejudiced by the 7 late filingof the re ply

brief a nd there fore the Court shall g rant the Motion for L eave and conside r Anchor ’s re ply

. II. LEGAL STANDARD Most of the defe ndants have moved to dismiss the Complaint for failure to state a c laim upon which re lief ca

n be g rante d pursuant to Rule 12(b)( 6). B eca use many of these de fenda

nts have r aised que stions about Cheeks’s standingto bringthis action, the Court must also consider whether dismiss al is appropr iate for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). A. Motion to Dismiss for Lack of Subject M

atter Jurisdiction Under Rule 12( b) ( 1) A cour t must di smiss a case pur suant to Rule 12(b)(1) when it lacks subjec t matter jurisdiction. I n deter

mining whe ther ther e is jurisdiction, the Court may “conside r the c omplaint supplemented by

undisputed fac ts evidence d in the rec ord, or the c omplaint supplemented by undisputed fac ts plus the court’s re solution of disput ed fa cts.” Coalit ion for Underground Expansion v. M

ineta , 333 F.3d 193, 198 ( D.C. Cir. 2003) (citations omitted); see also Jerom e Steve ns Pharm., Inc. v . Food &Drug Admin. , 402 F.3d 1249, 1253 ( D.C. Cir. 2005) (“[T]he district court may

consider materials outside the plea dings in de cidingwhether to gr ant a motion to dismi ss for lac k of jurisdiction.”). “ At the motion to dis miss st ag e, counse led complaints, as Although Anchor’ s motion i s alternatively styled an “ opposition” to Cheeks’s “Motion 7 to Dismiss ,” the Court notes that Chee ks’s “Motion to Dismiss ” is ac tually an opposition brief, and ther efor e Chee ks is not entitl ed to a f urther r eply

. 15well as pro se complaints, are to be construe d with sufficient libera lity to affor d all possible infere nces f

avora ble to the pleade r on alleg ations of fa ct.” Settles v. U.S. ParoleComm’n , 429 F.3d 1098, 1106 ( D.C. Cir. 2005). In spite of the fa vorable infere nces that a plaintiff re ceive s on a motion to dism iss, it remains the plaintiff’s burde n to prove subjec t matter jurisdiction by a preponde ranc e of the evidenc e. Am. Farm Bure au v. Env tl. Prot. Agency , 121 F. Supp. 2d 84, 90 (D.D.C. 2000). “ Although a court must acc ept as true all fac tual alleg ations contained in the complaint when r eviewinga motion to dism iss pursuant to Rule 12(b)(1) , [a] plaintiff[’s] fac tual alleg ations in the complaint . . . will bear c loser scr utiny in resolvinga 12(b) (1) motion than in resolvinga 12(b) (6) motion for f ailure to state a

claim.” W

right v. Foreign Serv. Grievanc e Bd. , 503 F. Supp. 2d 163, 170 (D.D .C. 2007) (interna l citations and quotation marks omitted). B. Motion to Dismiss for Failure to State a Clai m Under Rule 12( b) ( 6) The F eder al Rules of Civil P roce dure r equire that a complaint conta in “‘a short and plain statement of the c laim showing that the pleade r is entitled to relief,’ in order to ‘ g ive the defe ndant fa ir notice of what the . . . cla im is and the g rounds upon which it re sts.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. G ibson , 355 U.S. 41, 47 (1957)); accord Eric kson v. Pardus , 551 U.S. 89, 93 (2007) (pe r cur iam). Althoug h “deta iled fac tual alleg ations” ar e not nec essar y to withstand a Rule 12(b)( 6) motion to dism iss, to provide the “g rounds” of

“entitle[ment] to relief,” a plaintiff must furnish “mor e than labe ls and conc lusions” or “a formulaic r ecitation of the elements of a cause of ac tion.” Twombly , 550 U.S. at 555; see also Papasan v. Allain , 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient fac tual matter, a cce pted as true , to “state a claim to relief

that is plausible on its face.” Twombly , 550 U.S. at 570. “A c laim has fac ial plausibilit y when the pla intiff pleads fa ctual conte nt that

16allows the cour t to draw the r easona

ble infer ence that the def

endant is liable for

the misconduct alleg ed.” Ashcroft v. Iqbal , __ U.S. __, 129 S. C t. 1937, 1949 (2009) (c iting Twombly , 550 U.S. at 556). In evaluating a

Rule 12(b)(6) motion to di smiss for failure to state a c laim, the court must construe the complaint in a light most favor able to the plaintiff a nd must acce pt as true a ll

rea sonable fa ctual infe renc es dra wn from we ll-pleade d fac tual alleg ations. In re United M ine W orkers of Am. Em

ployeeBene

fit Plans L itig. , 854 F. Supp. 914, 915 (D.D .C. 1994); see also Schuler v . United States , 617 F.2d 605, 608 ( D.C. Cir. 1979) (“The complaint must be ‘libera lly construed in f

avor of the plaintiff,’ who must be g rante d the bene fit of all infer ence s that can be derive d from the f

acts a lleg ed.”) . Howeve r, as the Supre me Court rec ently made c lear , a plaintiff must provide more than just “a sheer possibili ty

that a def endant ha s acte d unlawfully .” Iqbal , 129 S. Ct . at 1950. Where the well-plea ded fa cts set forth in the c omplaint do not permit a court, draw ing on its judicial experienc e and c ommon sense, to infer mor e than the “ mere possibili ty of misconduct,” the c omplaint has not shown that the pleade r is entitled to relief. Id. at 1950. In evaluating a

motion to di smiss under Rule 12(b)(6) , the Court is lim ited to consideringthe fac ts alleg ed in the complaint, any documents attac hed to or incor porate d in the complaint, matters of which the cour t may take judicial notice , and matter s of public re cord. See E EOC v. St. Francis Xavier Paroc hial Sch. , 117 F.3d 621, 624 ( D.C. Cir. 1997); see also Vanov er v. Hantman , 77 F. Supp. 2d 91, 98 (D.D .C. 1999), aff’d , 38 F. App’ x 4 (D.C. Cir. 2002) (“ [W ]here a docume nt is refe rre d to in the complaint and is centra l to plaintiff’s claim, such a document attache d to the motion papers may be conside red w ithout convertingthe motion to one for summary judgme nt.”) (c iting Gree nberg v. The Life Ins. Co. of Va. , 177 F.3d 507, 514 ( 6th Cir.

171999)). Where, a s here , the ac tion is brought by a pro se plaintiff, the Court must take par ticular

car e to construe the plaintiff’s f ilings libera lly , for suc h complaints are held “to less string ent standards tha

n formal plea dings dr afte d by lawyers.” Haines v. Kerne r , 404 U.S. 519, 520-21 (1972). III. DISCUSS ION The motions pendingbefor e the Court ra ise primarily two issues: whether Che eks proper ly eff ecte d service on sever al of the de fenda nts and whethe r Cheeks ha s failed to state a claim upon which r elief c an be grante d. Wit hin their motions, several de fenda nts have a rgued that this Court l acks subjec t matter jurisdiction over this ac tion because all of the injuries a lleg ed in the Complaint were suff ere d by Cheeks’s c orporation, CNA, and Cheeks lac ks standing to sue for CNA’ s injuries. See [31] Br . Supp. Defs. Western Sure ty Co. & Paul T. B ruflat’ s Rule 8 12(b)( 6) Mot. to Dismiss at 7-9; [81] District Def s.’ Mem. P. & A . Supp. Their Mot. to Dismis s at 13-14; [83] P. & A. Supp. WASA Defs.’ Mot. to Dismiss at 4-6; [ 88] Anchor Constr. Corp.’s Mot. to Dismi ss at 3-4; [105] Reply to Pl.’s R esponse to Civil Cons truction L L C’s Mot. to Dismiss at 3-4. Be cause standingis essential to the Court’s subject matter jurisdiction, the Court shall determine whether

Cheeks has standing

befor e turningto the merits of the c laims asserted in the Complaint. Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 98 (1998).

Although Che eks fr equently ref ere nces CNA in his Complaint, it i s clea r that CNA has 8 not been na

med a plaintiff in this ac tion and that Cheeks is not bring ing this ac tion as a der ivative suit on behalf of CNA. Che eks has identifie d himself as the only plaintiff in his Compl aint, has used his individual address in all filing s with this C ourt (which is distinct from CNA’s a ddress), and instituted this action pro se , a privileg e that is denied to c orporate entities. He a lso has not complied with the re quirements of Rule 23.1 with re spect to der ivative ac tions. 18A. Standing

To establish the “irr educible c onstitut ional minimum of standing ,” a pla intiff must show: (1) that he or she suff

ere d an injury

in fac t that is (a) c oncre te and pa rticularized and (b) ac tual or imminent; (2) a ca

usal relationship between the injury and the c halleng ed conduc t; and (3) that the injury will likely

be re medied by

a fa vorable court de cision. Lujan v. Defende rs of W ildlif e , 504 U.S. 555, 560-61 (1992). B eyond this constitut ional minimum , the fe dera l courts have imposed prudential limitations on who may invoke the cour

ts’ judicial power s. Fore most among these prude ntial limi tations is the rule that a “ plaintiff g ener ally must assert his own leg al rig hts and intere sts, and cannot r est his claim to relief on the leg al rig hts or interests of third pa rties.” W arth v. Seldin , 422 U.S. 490, 499 (1975). The g ener al prohibition on third party standingis based on the principles that cour ts should not adjudicate the rights of third parties unne cessa rily and that third par

ties will usually

be the be st proponents of their own rig hts. See Singleton v

. W ulff , 428 U.S. 106, 113-14 (1976) (plurality opinion). Although a

litigant may

establish third party standingin some limi ted circ umstances, to do so “the re must existsome hindranc e to the third party ’s ability

to protect his or he r own intere sts.” Powers v. Ohio , 499 U.S. 400, 411 (1991); see also Am. I

mmigration Law

yers Ass’n v . Reno , 199 F.3d 1352, 1361- 62 (D.C. Cir. 2000) (discussion exceptions to the bar on third pa rty standing ). A re lated princ iple is the so-ca lled share holder standingrule: “a longsta nding e quitable restric tion that prohibits s hare holders fr om initi atingactions to enfor ce the rig hts of the corpor ation unless the cor poration’s mana g ement has r efuse d to pursue the same ac tion for

rea sons other than g ood-fa ith business judgment.” Franchise Tax Bd. v . Alcan Aluminum Ltd. , 493 U.S. 331, 336 (1990); see also Am. Airways Charters, Inc. v . Regan , 746 F.2d 865, 873 n.14

19(D.C. Cir. 1984) (“No share holder–not eve n a sole shar eholder –has standingin the usual ca se to bringsuit in hi s individual capac ity on a cla im that belongs to the c orporation.”) Howe ver, a share holder may

invoke an e x ception to this rule wher e the sha reholde r has a

“dire ct, per sonal interest in a c ause of

action . . . eve n if the cor poration’s rights are a lso impl icated.” Id. In deter mining whe ther a

share holder’s c laims are pur ely derivative of the c orporation’s claims for standingpurposes a

nd thus barre d by

the share holder standingrule, c ourts apply the law of

the state of incor

poration. Harpole Architec ts, P.C. v. Barlow , 668 F. Supp. 2d 68, 76 (D.D .C. 2009). Wit h the exception of Count Eighte en, which a sserts claims for violations of Cheeks’s civil liberties, it appear s that all of the cla ims asserted in the Complaint belongto Cheeks’s corpor ation, CNA. Except for Count Eighte en, all of the alleg ations in the Complaint are base d on injuries resultingfrom Chee ks’s submission of bids on behalf of his corpor ation, CNA. Although Che eks does not cle arly distinguish betwee n his own interests and those of CNA’s in the Complaint, itis clear

from the ove rall nature of the a lleg ations and the e x hibits attached to the Complaint that Cheeks submitt ed the bids on beha lf of CNA a nd not on his own behalf a s an individual. For e x ample, on ea ch of the bid submiss ion forms attac hed as e x hibits t o the Complaint, t he bidder

is identified as “CNA, I

nc.,” a nd Cheeks che cked the box on eac h form indicatingthat the bidder ope rate s as a c orpora tion. See, e .g. , Compl., Ex . D.7.1. Cheeks wa s

mere ly actingas an a g ent of CNA, a nd there fore the victim of the alleg ed bid-rig g ing c onspiracy and all the r elated le g al claims is CNA, not Cheeks. See V inci v. W aste Managem ent, Inc

. , 80 F.3d 1372, 1375 ( 9th Cir. 1996) (“A sha reholde r of a

corpor ation injured by

antitrust violations has no standingto sue in his or her own na me.” ( citation omitted)). Cheeks only has standingto

20asser

t the corpor ation’s claims if he ha s some direc t personal inter est at stake that is dist inct from the cor poration’s intere sts. Be cause CNA is a District of Columbia corpor ation, see Compl., Ex . C.1.1 (Articles of Incorpor ation), the Court applies District of Columbi a law in de terminingwhether Cheeks’s claims are deriva

tive. To have standingunder D .C. law, a shar eholder “must identify

a leg al interest that has be en dire ctly or indepe ndently

harme d, i.e., a ‘ specia l injury ’ that does not der ive from the injury

to the corpor ation.” Harpole Architec ts , 668 F. Supp. 2d at 77 (quoting Labovitz v. W ash. Times Corp. , 172 F.3d 897, 901 ( D.C. Cir. 1999)); see also Estate of Raleigh v. Mitchell , 947 A.2d 464, 469 (D.C. 2008) ( “Since the [plaintiff] had no leg al intere st in the real proper ty belong ing to the c orporation, it could not s ue individually to redre ss any

alleg ed wr ong s ag ainst the corpor ation’s prope rty interests.”) ; Mona v. M

ona Elec. Group, Inc. , 934 A.2d 450, 464 (Md. Ct. Spec. App. 2007) ( “To maintain a direc t action, [a] s hare holder must alleg e that he has suffe red ‘ an injury

that is separate and distinct from a ny injury suffe red e ither direc tly

by the corpor ation or der ivatively by the stockholder be cause of the injury to the corpor ation.’” ( citation omitted)); Kramer v. W

. Pac. Indus., I

nc. , 546 A.2d 348, 351 (De l. 1988) (“F or a pla intiff to have standingto bringan individual action, he must be injure d directly or independe ntlyof the corpor ation.”) “The rea sons for the g ener al rule pr ecludingshare holders fr om suing individually

9 to redre ss a cor

porate rig ht are to avoid multipl e suits, to prevent a bar to the c orporation’s rig ht

D.C. courts “ma

y look to the law of other

jurisdictions in i nterpre ting c ompara ble laws 9 or rules, a bsent definitive author ity , in this j urisdiction.” Behradrezae e v. D ashtara , 910 A.2d 349, 356 (D.C. 2006). The D.C. courts have not definitely articulated a test for

evaluating share holder standing , and the D.C. c ourts have of ten looked to Dela

war e for guidance on matters of cor porate law and to Ma

ryland for c ommon law. See H arpole Architec ts , 668 F. Supp. 2d at 76, 77 n.4. 21of ac tion, and to ensure that any damag es re cover ed will be ava ilable to the cor poration’s

cre ditors and any

other shar eholder s.” Estate of Raleigh v. Mitche ll , 947 A.2d 464, 469 (D.C. 2008). Ge nera lly , economic da mag es to the shar eholder

that result from losses to the c orporation do not qualify

as direc t or independe nt harm g iving rise to share holder standing

. Harpole Architects , 668 F. Supp. 2d at 77. Wit h the exception of the a lleg ations in Count Ei g hteen of the Complaint, Cheeks has failed to a lleg e any

harms that ar e indepe ndent of the injuries to CNA. Chee ks claims that Def endants’ a lleg ed misconduct pre vented him from winningbids, denied him a fa ir opportunity to compete f

or contra cts, and disrupted his business, ca using him to lose re venue a nd profits. Howeve r, these a

re da mag es that ac crue d, if at all, to CNA, since it wa s CNA who would have been a party to the contra cts at issue. Ther e is no alleg ation that CNA’s ability to bringits own lawsuit has bee n hindere d in any way . There fore , the Court finds that Cheeks lac ks standing to bringclaims arisingout of CNA’s submission of bids to W ASA, DPW, and DDOT. The Court also finds that the cla ims asserted in Counts One through Seventee n are all related to CNA’s submissi on of bids and the a lleg ed bid-rig g ing c onspiracy and re lated anticompe titive conduct. 1 0 The Court also notes that in re sponse to the var ious moti ons to dismi ss that raised this issue, Cheeks fa iled to addre ss the issue of standing

. “It is well understood in this C ircuit that 1 1

To the extent that Count S ix teen may be construe d as asse rtinga cla im ag ainst D.C. 1 0 g overnme nt officials for

failingto act in ac corda

nce w ith laws, it is clear that Chee ks lacks standingto pursue this claim bec ause it is a “g ener alized gr ievanc e” that is “not only widely share d, but is also of an abstra ct and indef inite nature–f

or example, harm to the ‘ common conce rn for

obedienc e to law.’ ” Fed. Elec tion Comm’n v. Ak ins , 524 U.S. 11, 23 (1998) (c itation omitted). Cheeks’s r esponses to De fenda nts’ motions are devoid of leg al ar gument and fa il to 1 1 respond to the c entra l issues raised by Def endants. Chee ks’s filings w ith the Court most ly repe at 22when a

plaintiff files an opposition to a dispositive moti on and addr esses only cer tain arguments raised by the def endant, a court may

treat those arguments that the plaintiff fa iled to addre ss as

conce ded.” See H

opkins v. W

omen’ s Div., Ge n. Bd. of Global Ministri es , 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d , 98 Fe d. Appx. 8 (D.C. C ir. 2004); Day v . D.C. Dep’t of Consumer & Regulatory Affairs , 191 F. Supp. 2d 154, 159 (D.D .C. 2002) (“I f a pa rty fails to counter

an argument that the opposingparty makes in a motion, the cour t may treat that argument as

conce ded.”) There fore , the Court alternatively finds that Cheeks has c oncede d that he lac ks standingto assert c laims on behalf of CNA, at lea st with respec t to those defenda nts who raised this iss ue. B eca

use Counts One throug h Seventee n of the Complaint assert c laims that belongto CNA rathe r than Chee ks, the Court must dis miss C ounts One throug h Seventee n for lac k of subject matter jur isdiction. Count Eightee n does not involve claims that clea rly belongto CNA. In Count Eightee n, Cheeks appe ars to cla im that Defe ndants have violated his constitutional rights by surveilling him and trac king his moveme nts. Bec ause Count Eig hteen involves a direc t personal injury

to Cheeks that may

be re dresse d by

a fa vorable Court decision (such a s one aw ardingmoney damag es), the Court f

inds that Cheeks has standingto bringCount Eightee n. There fore , the 1 2 the alleg ations of the Complaint and provide a dditional documentation in support of Cheeks’s claims. The District of Columbia ar gues that Count Eighte en should be dismissed for lac k of

1 2 subject matter jur isdiction because the claims asse rted ther ein ar e “e ssentially fictitious” and “not rea listi cally

distinguishable f

rom alleg ations of ‘little g ree n men’ . . . .” See Docke t No. [81] at 39; see also Curran v. Holder , 626 F. Supp. 2d 30, 33 (D.D .C. 2009) (“N o fede ral que stion jurisdiction ex ists to m ake a claim suitable for

decision whe n the claim is patently insubstantial.” (interna l quotation marks and citations omitted)). The Court finds, however , that the alleg ations in Count Eighteen a

re suf ficiently substantial to present a f

eder al question for de cision on the merits. 23Court shall consider whe ther Chee ks’s claims in Count Eightee n can sur vive Def endants’ motions t o dismiss

. B. Motion to Dismiss for Failure to State a Clai m Count Eightee n purports to asser t a claim for

“violation of civil liberties” a g ainst the four construction compa

ny defe ndants (F ort My er, Anchor, Civil Construction, and Capitol P aving ) and their of

fice rs (Shrensky , Rodrigue z, and Neto), a s well as the Executive Of fice of the Mayor and D.C. Mayor Adria

n M. Fe nty

. The primar y fac tual alleg ations in Count Ei g hteen a re that 1 3 Def endants “ share d information on Plaintiff’s private and public movements of soc ial org anizations, place of dinning[ sic ], t y pe of ve hicle, owne rship of vehic le and r esidenc e location” a

nd that Def

endants

v io la te d Pl a in ti f f ’ s Un it e d St ates Constit utional rig hts, Amendment 1, of Plaintiff and civil liberties throug h surveillance tactics of photogr aphy , wirele ss elec tronic eave sdropping an d i nterc epting equipment by unknown users, human private investigators, with public space infring ement, vehicular trailing at random, throug h sever al states and counties, without ap p ro v al of state g overnme nts or fede ral ag encie s. Compl. ¶¶ 363-64. Althoug h it is notentirely clea r what leg al claim Chee ks is seekingto assert in Count Eighteen, the se alleg ations may be libera lly

construed a s asserting

a cla im for violation of the F ourth Amendment’s ba n on unrea sonable sea

rche s and seizures or, a lternatively , some constitutional right to privac y . There fore , the Court shall analy ze Count Eighteen a s a cla im for

I t is somewhat unclea

r as to whe ther Chee ks intends to assert similar claims ag ainst 1 3 other De fenda

nts named in para g raph 360 of the Complaint. Bec ause the Court finds that Cheeks’s a lleg ations in Count Ei g hteen f ail to state a c laim ag ainst any of the de fenda

nts, the Court need not re solve the question of whic h defe ndants are named in Count Eighte en. 24deprivation of constitutional rights under 42 U.S.C. § 1983. This is consistent with how 1 4 Def endants have interpr eted the a lleg ations of Count Eightee n in their motions to di smiss. To the extent that Cheeks is suing private ac tors for a lleg ed constitutional violations, his claims fail as a

matter of la

w. “A c og nizable constituti onal depr ivation require s that the deprivation be the re sult of gove rnment ac tion.” Bishop v. Fed. I ntermediate Credit Bank of W ichita , 908 F.2d 658, 663 ( 10th Cir. 1990); see also Lugar v. Edmondson Oil Co. , 457 U.S. 922, 936 (1982) ( [T] he par ty char g ed with the depr ivation must be a person who may fairly be said to be a state actor .”) The re a re no a lleg ations that the private pa rties alleg ed to have conducte d surveillance did so under the a uthority of the g overnme nt; in fact, the a lleg ations are to the contra

ry . See Compl. ¶ 364 (“De fenda nts violated Plainti ff’ s United States Constit utional rig hts . . . without approval of state g overnme nts or fede ral a g encie s.”) The ref ore, the Court finds that Cheeks has f

ailed to state a

claim upon which r elief c an be grante d ag ainst all nong overnme nt defe ndants. Wit h respe ct to claims that may be asse rted a g ainst g overnme nt defe ndants such as the Ex ecutive O ffice of the Mayor and D .C. May or Adria n M. Fe nty , the alleg ations in Count Eig hteen a

re too imprec ise and c onclusory to state a c ause of

action. “T o survive a motion to dismiss , a complaint must contain suffic ient fac tual matter, a cce pted as true , to ‘state a c laim for relief that is plausible on its face.’ ” Iqbal , 129 S. Ct . at 1949 (quoting Twombly , 550 U.S. at 570). He re, the alleg ations consist of g ener alized complaints about surveillance and informa tion

Section 1983 rea ds, in pertinent par t: “Every person who, unde r color of any statute, 1 4 ordinanc e, re gulation, custom, of any State or Ter

ritory or the District of Columbia, subjects, or cause s to be subjected, a

ny citizen of the United States . . . to deprivation of any rig hts, privileg es, or immunities secure d by the Constitut ion and laws, shall be liable to the party injured in an ac tion at law . . . .” 42 U.S.C. § 1983. 25sharingthat do not plausibly show a c onstitut ional violation. At best, the alleg ations sugg est that Def endants monitored Chee ks’s wher eabouts, whic h is not necessa rily unconstitutional. Thus, the alleg ations do not provide “more than a she er possibility that a def endant ha s acte d unlawfully .” See id. There fore , the alleg ations in Count Ei g hteen f ail to state a c laim upon which re lief ca

n be g rante d and should be dismissed. In response to Defe ndants’ motions to dismiss Count Eightee n, Cheeks fa iled to addre ss the argument that he had f ailed to state a

claim. Acc ording ly , the Court alternatively treats this arg ument as conc eded, at least with respe ct to those defe ndants who ra ised this issue. Be cause Count Eightee n fails to state a c laim ag ainst any defe ndants, the Court shall dismiss Count Eightee n under Rule 12( b)(6) . Although some non-g overnme nt defe ndants (F ort My er, Capitol Paving , Rodrigue z, S hrensky , and Ne to) have not expl icitly moved the Court to dismiss this claim, it i s well settled in this Ci rcuit that a c ourt may dismiss a complaint sua sponte pursuant to Rule 12(b)( 6) whe re it is “pate ntly obvious” that the plaintiff c annot pre vail on the fa cts alleg ed in the complaint. Bake r v. Direc tor, U.S. Parole Comm’n , 916 F.2d 725, 726-27 (D.C. Cir. 1990) ( per c uriam) ( “B eca use it is patently

obvious that Bake r could not have preva iled on the fa cts alleg ed in his complaint, we find that sua sponte dismiss al was appropr iate.”) ; see also Zernik v. U.S. D ep’t of Justice , 630 F. Supp. 2d 24, 25 (dismissing complaint sua sponte for f ailure to state a

claim); Perry v . Discove r Bank, 514 F. Supp. 2d 94, 95 (D.D.C. 2007) ( dismiss ing pro se complaint sua sponte wher e the c omplaint made clea r that plaintiff had f

ailed to provide “ any

fac tual or leg al basis for a lleg ed wr ong doing by defe ndants”). Be cause it is clear that Chee ks cannot pre vail on a constitutional claim ag ainst non-state a ctors, sua sponte dismiss al is appropr iate. The ref ore, the Court shall dismi ss Count Eighteen a g ainst

26all defe ndants.

C. Default Against Fort Myer For t My er ha s moved to vacate the entr y of def ault, claimingthat it was not proper ly

serve d with proce ss. “The c ourt may set aside a

n entry of def ault for g ood cause .” F ed. R. Civ. P. 55(c). In consideringwhether a def endant ha s shown g ood cause , courts should consider three criter ia, re solving a ll doubts i n favor of the pa rty seekingrelief

from the de fault: (1) whether the defa ult was willful; (2) whethe r a se t-aside would pr ejudice the plaintiff, and ( 3) whe ther the defe ndant has pre sented a meritorious defe nse. Capital Y acht Club. v. Vessel AVI VA , 228 F.R.D. 389, 393 (D.D.C. 2005). In this case, a set-aside would not prejudice Cheeks bec ause, a s explained above, the Court lac ks subject matter jurisdiction over most of claims ag ainst Fort My er a nd Cheeks’s r emainingalleg ations ag ainst Fort Myer f ail to state a c laim upon which relief can be g rante d. For

t My er’ s pleading s also indicate that its defa ult was not willful. There fore , the Court shall set aside the de fault and, f or the re asons stated a

bove, dismiss the claims ag ainst Fort Myer. IV. CONCLUSION For the fore g oing r easons, the Court f inds that Cheeks lacks standingto bringthe claims

asser ted in Counts One throug h Seventee n of the Complaint and there fore those claims must be dismiss ed for

lack of subject matter jur isdiction. The Court also finds that the alleg ations in Count Eightee n of the Complaint fail to state a c laim upon which re lief ca n be grante d ag ainst any defe ndants and may

be dismissed, either upon de fenda nts’ motions or sua sponte . There fore , the Court shall GRANT De fenda nt Fort Myer Construction Corporation’s [ 27] Mot ion to Vacate Entry of De fault; GRANT De fenda nts W estern Sure ty

Company

and Paul T. B ruflat’ s [31] Rule

2712(b)( 6) Motion to Dismi ss, GRANT the District of Columbia Def endants’ [81] Mot ion to Dismiss t he Complaint; GRANT the WASA Defenda nts’ [83] Motion to Dism iss; GRANT Def endant Civil Const ruction L L C’s [85] Motion to Dism iss Com plaint; and GRANT De fenda nt Anchor Construction Corporation’s [88] Motion to Dism iss. The Court shall set aside the de fault of De fenda

nt Fort Myer, dismiss Counts One throug h Seventee n of the Complaint under Rule 12(b)( 1), and dismiss Count Eighteen a g ainst all defe ndants pursuant to Rule 12(b)( 6). All other pendingmotions shall be denied without prejudice , and this case shall be dismissed in its entirety . An appr opriate O rder acc ompanies this Memorandum Opinion.

/s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

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