1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAGLOIRE K. PLACIDE AYISSI-ETOH , Plaintiff,

v. FANNIE MAE, et al. , Civil Action No. 10-1259 (JEB)

Defendants.

MEMORANDUM OPINION Plaintiff Magloire K. Plac ide Ayissi-Etoh filed this pro se suit in 2010 against his former employer Fannie Mae and four corporate officer s for employment discrimination, hostile work environment, retaliation, and defamation. With the case currently set fo r trial on September 29, 2014, the parties have been given leave to file in limine motions. Defendants now move to strike the punitive-damage claims against the individual Defendants and to limit claims against those Defendants to their corporate capacities. The e ssential question here is whether Plaintiff may proceed against the individual Defendan ts in their indi vidual capacities. The Court ultimately holds he may not. A lthough it finds that Defendants have waived their defense based on improper service of proc ess, the Court concludes that the individual Defendants were not given notice th at they were being sued in th eir individual capacities. As a result, allowing Plaintiff to proc eed against them in that fashi on would be highly prejudicial. Since it would be redundant, furthermore, to reta in them in their corporate capacities – as Fannie2 Mae is already a Defendant – the Court grants Defendants’ Motion and di smisses the individual Defendants from the case.
I. Background While the procedural history of this case is lengthy, the Court need only summarize the facts relevant to the current Motion. On Ju ly 27, 2010, Plaintiff filed his initial Complaint against Fannie Mae and four current and former corporate officers: CEO Michael Williams, former chief audit executive Jacqueline K. Wa gner, former vice president Thomas Cooper, and manager Sanda Pesut. See ECF No. 1. The caption lists each of these indi viduals as being sued in the capacities of their corporate positions. S ee Compl. at 1. In addition, in the “Parties” section of the Complaint, Plaintiff alleges that three of the four Defendants are “in [her/his] official capacity . . . . a necessary party for complete relief to be afforded to the Plaintiff.” Id. at 2-3. (He says nothing about the capacity of th e fourth.) The capti on and “Parties” section remained unchanged in the Amended Complaint filed on September 1, 2010. See ECF No. 10 at 1, 3. The Prayer for Relief, moreover, states th at the Defendant against which judgment is being sought is “essentially Fannie Mae,” and it doe s not demand any specific damages from the individual Defendants. Id. at 25. Plaintiff ma iled the original Complaint and summons to each of these individual Defendants by FedEx or UPS at their last know n place of employment. Mot. at 4-5. The documents were received by ma ilroom employees, and none of the individual Defendants separately confirme d receipt of service. Id. Soon after service, all Defendants jointly moved for summary judgment, and on September 23, 2011, the court to whom the case was initially assigned granted judgment in their favor. See Etoh v. Fannie Mae, 883 F. Supp. 2d 17 (D.D.C. 2011). Plaintiff appealed, and on April 5, 2013, the decision was reversed by the D.C. Circuit, returning the case to the district3 court. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 581 (D.C. Cir. 2013). The prior trial judge subsequently recused herself, and on April 28, 20 14, the case was reassigned to this Court. A trial date has been set for September 29, 2014. On February 14, 2014, meanwhile, Plaintiff voluntarily dismissed his punitive-damage claims against Fannie Mae upon learning that such claims were barred by 12 U.S.C § 4617. See ECF No. 40. A status conference addressing damages subsequently uncovered a dispute among the parties about whether Plaintiff could obtain p unitive damages from – or proceed at all against – the individual Defendants. The Court permitted briefing on the question, and Defendants have now brought this Motion asserting th at they are not proper parties in their individual capacities.
II. Analysis Defendants’ Motion can be broken down into th ree distinct arguments: First, they claim that Plaintiff has not properly served the individu al Defendants. Mot. at 3-5. Second, they argue that the individuals were only sued in their “offici al capacity.” Id. at 2. Third, they alternatively contend that the claims against Defendant Williams should be dismissed on the merits. Id. at 6-7. The Court will address the first two points. As it ultimately dismisses the claims against all individual Defendants, the th ird issue is rendered moot.
A. Service of Process For individual defendants residing in the Un ited States, Federal Rule of Civil Procedure 4(e) authorizes three methods of service: personal delivery to th e defendant, leaving the material at the defendant’s residence, or delivery to an authorized agent. Although the rule also permits service in accordance with state law, the Distri ct of Columbia Superior Court Rules of Civil Procedure do not provide for any relevant additional methods. See Sup. Ct. R. Civ. P. 4. In lieu4 of service through these options, a plaintiff may also request a waiver of service from a defendant via first class mail or other reli able means. Fed. R. Civ. P. 4(d). There is little doubt that Plaintiff’s servic e of process upon the individual Defendants through FedEx and UPS does not satisfy the form al requirements of Rule 4. The rule only allows the use of mail when requesting a waiver of service, see Fed. R. Civ. P. 4(d), and such waiver does not become operative without affi rmative consent from the defendant. See Cambridge Holdings Group, Inc. v. Fed. Ins. Co., 489 F.3d 1356, 1362 (D.C. Cir. 2007). There is nothing on the record that indicates that the individual Defendants gave such consent. While Plaintiff relies on Rule 5(b), which allows fo r service by mailing to a defendant’s last known address, that rule only applies to service of papers other than the initial complaint and summons. Plaintiff’s failure to comply with these se rvice rules, however, does not doom his case. The doctrine of waiver – of the issue itself, not of service – comes to his rescue. A party waives the defenses of lack of personal jurisdic tion, improper venue, insufficient process, and insufficient service if he fails to include them in any prior motion or responsive pleading. See Fed. R. Civ. P. 12(h)(1). Defendant s have filed a prior Motion to Dismiss, or, in the Alternative, for Summary Judgment on October 4, 2010. See ECF No. 16. They made no argument regarding service therein. Indeed, Defendants have waited years to raise such a defense; as a result, the Court must deem it waived. In addition, courts have traditionally di sfavored applying service requirements with “draconian rigidity” to pro se litigants. See Smith v. U.S. 475 F. Supp. 2d 1, 10 (D.D.C. 2006). The D.C. Circuit affirmed this policy in Moore v. Agency for Int’l De v., 994 F.2d 874 (D.C. Cir. 1993), where it allowed a pro se plaintiff to correct his defectiv e service in response to a motion to dismiss. In its decision, the Moore court stat ed that district courts have an obligation to5 provide pro se litigants with “minimal notice” regarding the consequences of failure to comply with procedural rules. Id. at 876. When pro se plaintiffs have not b een provided with such notice and the defendant has not be en prejudiced, courts will give the plaintiff leave to correct his procedural defects. Smith 475 F. Supp. 2d at 10. Like the litigant in Moore, Plaintiff does not appear to have been on notice about the def ects in his service and the potential for those defects to cause the dismissal of his claims. On the contrary, he would have every reason to believe that his service was not defective gi ven that the individual Defendants had been participating in the litigation – at least in th eir corporate capacities – without complaint for nearly four years.
B. Capacity of Individual Defendants Defendants’ next argument – that the named corporate officers were only sued in their “official capacity” and not as individuals – is mo re persuasive. When a complaint is ambiguous, the question of whether a defendant is being sued in his individual capacity is determined by a “course of proceedings” test. See Brandon v. Holt, 469 U.S. 464, 469 (1985). This test examines how the defendants have been treated during the litigation by the court and both parties to see if there has been a common assumption about the capacity in which they have been sued. See id. at 469. It is, however, not applicable wh en the complaint specifically states that the defendant is being sued in his official capacity only. See Atchinson v. District of Columbia, 73 F.3d 418, 425 (D.C. Cir. 1996). A lthough courts do apply “less stringent standards” when interpreting the complaints of pro se litigants, Haines v. Kern er, 404 U.S. 519, 520-521 (1972), these complaints must still satisfy the minimum legal standard of giving the adverse party “fair notice of what Plaintiff’s claim is and the gr ounds upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 507 (2002). As the Sixth Circuit has noted, “It is not too much to ask that if6 a person or entity is to be subject to suit, the person or entity shoul d be properly named and clearly notified of the potential for payment of damages individually.” Wells v. Brown, 891 F.2d 591, 593 (6th Cir. 1989), quoted in Atchinson, 73 F.3d at 426. An examination of Plaintiff’s Complaint and Amended Complaint leads to the inescapable conclusion that “fair notice” was lacking in this case. As previously noted, the caption and the list of parties explicitly state th at Defendants are being sued in their official capacities – e.g. , “in his capacity of Chief Executive Officer of Fannie Mae” – and not as individuals. See Am. Compl. at 1, 3-4. The Prayer for Relief, moreover, states that the Defendant from whom relief is sought is “es sentially Fannie Mae” an d does not specifically demand relief from any of the indi vidual Defendants. Id. at 25. Plaintiff’s attempt to proceed against Defe ndants in their individual capacities would, therefore, be equivalent to an attempt to amend his Complaint to add individual-capacity claims. Such an amendment would be barred by the fou r-year statute of limitations for 42 U.S.C § 1981 actions. See Uzoukwu v. Metro. Wash. Counc il of Gov’ts, 2013 WL 5425128, at *9 (D.D.C. 2013). The Court, therefore, c ould only grant Plaintiff leave to amend through the relation-back provision of Rule 15(c). An amendment made outsi de of the statute of limitations that adds new parties can “relate back” to the da te of the original pleading when (1) the new claim arises from the same transaction or occurrence, and (2) th e new party, within 120 da ys of filing, received notice of the action and became or should have become aware that it would have been sued if not for Plaintiff’s mistake. See Fed. R. Civ. P. 15(c )(1)(C). In practice, c ourts have refined the inquiry to take into account prejudice to the defendant by determining whether the amendment would be “prejudicial [or] a surprise to the mi snamed party.” Rendall-Speranza v. Nassim, 107 F.3d 913, 918 (D.C. Cir. 1997).7 While there is no direct evidence regardi ng the individual Defenda nts’ state of mind, whether notice exists for the purpose of Rule 15(c)(1)(C) can be inferred from the factual circumstances of the case. See Gipson v. We lls Fargo Corp., 382 F. Supp. 2d 116, 120 (D.D.C. 2005). The circumstances here strongly support an inference that the individual Defendants did not have notice. As discussed above, the Comp laint explicitly stated that the individual Defendants were only bei ng sued as officers of Fannie Mae. See Am. Compl. at 1, 3. The improper service on the individuals also reduces the likelihood of no tice. Finally, the fact that they did not retain separate counsel and consen ted to be represented by Fannie Mae’s corporate counsel (despite potentially c onflicting defenses) strongly i ndicates that they believed the litigation was, in truth, against Fannie Mae alone. As a result, a dding them as parties with the potential of punitive damages at this very late stage would be highly prejudicial.
C. Redundancy of Claims in Official Capacity As the individual Defendants are only being su ed in their official capacities, the claims against them are redundant and should be dismisse d entirely. “[A]n offici al-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). The Court may, therefore, cons olidate official-capacity claims with claims against the entity in order to prevent redundancy and avoid “confus[ion] to the jury.” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991); see also Grissom v. District of Columbia, 853 F. Supp. 2d 118, 125 (D.D.C. 2012) (“Based upon the understanding that it is duplicative to name both a government entity and its employees in their official capacity, courts routinely dismiss claims against the official s to conserve judicial resources when the en tity itself is also sued.”) (internal quotation marks and citation omitted).8 Although the holding of Graham was limited to government officials, the Court sees no basis to reach a different outcome here. Cf . McCarthy v. Azure, 22 F.3d 351, 359 (1st Cir. 1994) (discussing Graham in context of individual-capac ity suit against corporat e officer). Officialcapacity claims do not grant Plaintiff access to a ny relief that would be unavailable from suing only Fannie Mae, and they needlessly increase the complexity of the case. Dismissing the redundant individual Defendants and focusing the inquiry on Fannie M ae would benefit both sides by streamlining the litigation and preven ting any potential confusion of the jury.
D. Procedural Challenges Plaintiff raises two procedural challenges to the Motion to Dismiss: (1) Defendants failed to discuss the Motion with him prior to filing, as required by Local Civil Ru le 7(m), and (2) they failed to properly serve it. Neither argument holds water. First, Rule 7(m) does not apply to dispositiv e motions, and this Motion is dispositive, as it seeks to dismiss all claims against the individual Defendants. Second, the Motion was filed electronically through the CM/ECF system, and elect ronic filing of papers constitutes service for

pro se parties who have obtained CM /ECF passwords. See LCvR 5.4(d)(1). The Court granted Plaintiff a CM/ECF password on September 1, 2010. See Order, Sept. 1, 2010.
III. Conclusion The Court, therefore, will grant the Indi vidual Defendants’ Motion to Dismiss. A separate Order consistent with this Opinion will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: June 17, 2014