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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. Placide Ayissi-Etoh filed this pro se suit in 2010 against his former 

employer Fannie Mae and four corporate officers for employment discrimination, hostile work 

environment, retaliation, and defamation. With the case currently set for 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 essential question here is whether Plaintiff may 

proceed against the individual Defendants in their individual capacities. 

The Court ultimately holds he may not. Although it finds that Defendants have waived 

their defense based on improper service of process, the Court concludes that the individual 

Defendants were not given notice that they were being sued in their individual capacities. As a 

result, allowing Plaintiff to proceed against them in that fashion would be highly prejudicial. 

Since it would be redundant, furthermore, to retain them in their corporate capacities – as Fannie 
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Mae is already a Defendant – the Court grants Defendants’ Motion and dismisses 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 July 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. Wagner, former vice president Thomas Cooper, and 

manager Sanda Pesut. See ECF No. 1. The caption lists each of these individuals as being sued 

in the capacities of their corporate positions. See 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 the fourth.) The caption 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 that the Defendant against which judgment is being 

sought is “essentially Fannie Mae,” and it does not demand any specific damages from the 

individual Defendants. Id. at 25. Plaintiff mailed the original Complaint and summons to each 

of these individual Defendants by FedEx or UPS at their last known place of employment. Mot. 

at 4-5. The documents were received by mailroom employees, and none of the individual 

Defendants separately confirmed 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 district 
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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, 2014, 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 punitive 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 that they are not proper parties in their individual capacities. 

II. Analysis 

 Defendants’ Motion can be broken down into three distinct arguments: First, they claim 

that Plaintiff has not properly served the individual Defendants. Mot. at 3-5. Second, they argue 

that the individuals were only sued in their “official 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 third issue is rendered moot. 

A. Service of Process

 For individual defendants residing in the United States, Federal Rule of Civil Procedure 

4(e) authorizes three methods of service: personal delivery to the 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 District of Columbia Superior Court Rules of Civil 

Procedure do not provide for any relevant additional methods. See Sup. Ct. R. Civ. P. 4. In lieu 
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of service through these options, a plaintiff may also request a waiver of service from a 

defendant via first class mail or other reliable means. Fed. R. Civ. P. 4(d). 

 There is little doubt that Plaintiff’s service of process upon the individual Defendants 

through FedEx and UPS does not satisfy the formal 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 affirmative 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 for 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 service 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 jurisdiction, 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). Defendants 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 disfavored 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 Dev., 994 F.2d 874 (D.C. Cir. 

1993), where it allowed a pro se plaintiff to correct his defective service in response to a motion 

to dismiss. In its decision, the Moore court stated that district courts have an obligation to 
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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 been provided with such 

notice and the defendant has not been 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 defects 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 given that the individual Defendants had been 

participating in the litigation – at least in their 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 more 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 when 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). Although courts do apply “less stringent standards” when 

interpreting the complaints of pro se litigants, Haines v. Kerner, 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 grounds 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 if 
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a person or entity is to be subject to suit, the person or entity should 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 that 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 “essentially Fannie Mae” and does not specifically 

demand relief from any of the individual Defendants. Id. at 25. 

 Plaintiff’s attempt to proceed against Defendants 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 four-year statute of limitations for 42 U.S.C § 1981 

actions. See Uzoukwu v. Metro. Wash. Council of Gov’ts, 2013 WL 5425128, at *9 (D.D.C. 

2013). The Court, therefore, could only grant Plaintiff leave to amend through the relation-back 

provision of Rule 15(c). An amendment made outside of the statute of limitations that adds new 

parties can “relate back” to the date of the original pleading when (1) the new claim arises from 

the same transaction or occurrence, and (2) the new party, within 120 days 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, courts 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 misnamed party.” Rendall-Speranza v. Nassim, 107 

F.3d 913, 918 (D.C. Cir. 1997). 
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 While there is no direct evidence regarding the individual Defendants’ 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. Wells 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 Complaint explicitly stated that the individual 

Defendants were only being sued as officers of Fannie Mae. See Am. Compl. at 1, 3. The 

improper service on the individuals also reduces the likelihood of notice. Finally, the fact that 

they did not retain separate counsel and consented to be represented by Fannie Mae’s corporate 

counsel (despite potentially conflicting defenses) strongly indicates that they believed the 

litigation was, in truth, against Fannie Mae alone. As a result, adding 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 sued in their official capacities, the claims 

against them are redundant and should be dismissed entirely. “[A]n official-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, consolidate 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 officials to conserve judicial resources when the entity itself is also 

sued.”) (internal quotation marks and citation omitted). 
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 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-capacity suit against corporate officer). Officialcapacity claims do not grant Plaintiff access to any 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 Mae would benefit both 

sides by streamlining the litigation and preventing 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 Rule 7(m), and (2) they 

failed to properly serve it. Neither argument holds water. 

 First, Rule 7(m) does not apply to dispositive 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 electronic 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 Individual 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