UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ALI ELGHANNAM,

Plaintiff, 

v. 

NATIONAL ASSOCIATION OF BOARDS 

OF PHARMACY,

Defendant. 

Case No. 15-cv-01554 (CRC)

MEMORANDUM OPINION

Ali Elghannam, an Egyptian immigrant and native Arabic speaker, filed a pro se

complaint against the National Association of Boards of Pharmacy (“NABP”) for denying his 

application for a certificate to practice pharmacy in the United States. NABP withheld the 

certificate after the Educational Testing Service (“ETS”), which is not affiliated with NABP, 

cancelled Elghannam’s score on the Test of English as a Foreign Language (“TOEFL”). A 

passing TOEFL score is a licensing requirement for foreign-pharmacy-school graduates like 

Elghannam. The Court dismissed Elghannam’s initial complaint because it alleged wrongdoing 

only by ETS, but permitted him to amend the complaint to supplement his allegations against 

NABP. After two amendments, Elghannam still has not stated a plausible claim against NABP. 

The Court will therefore dismiss Elghannam’s second amended complaint with prejudice. 

I. Background

A. Factual Background

The key facts underlying this case are not in serious dispute. As explained in the Court’s 

prior opinion dismissing the initial complaint, see Elghannam v. Nat’l Ass’n of Bds. of 

Pharmacy, No. 15-CV-01554 (CRC), 2015 WL 8751097, at *1 (D.D.C. Dec. 14, 2015), 
Elghannam sat for the TOEFL on April 10, 2015, and ETS—the non-profit organization that 

administers the exam—informed him 10 days later that he had passed. However, ETS 

subsequently notified Elghannam that it had cancelled his score due to purported inconsistencies 

between the voice on the speaking portion of Elghannam’s April 10 test and that from previous 

tests he had taken. ETS also prohibited him from taking the TOEFL again for one year.1

 After 

learning of ETS’s cancellation of the TOEFL score, NABP informed Elghannam that it could not 

issue him a pharmacist certificate. 

B. Procedural History

Elghannam brought a pro se complaint in the Superior Court of the District of Columbia 

seeking an order requiring NABP to issue him a certificate. NABP timely removed the case to 

this Court, Not. Removal, ECF No. 1, and then moved to dismiss the complaint for failure to 

state a claim. Mot. Dismiss, ECF No. 5. Elghannam’s original complaint alleged no 

wrongdoing by NABP. See generally Compl.; see also Elghannam, 2015 WL 8751097, at *1. In 

his opposition to NABP’s motion to dismiss, which raised this point, Elghannam sought to 

implicate NABP in ETS’s purported wrongful conduct by alleging that it “agreed immediately” 

with ETS’s decision to cancel his test score.2 Pl.’s Opp’n Def.’s Mot. Dismiss, ECF No. 13, at

1; see also Elghannam, 2015 WL 8751097, at *1.

1 As ETS explains in its TOEFL registration bulletin, test scores may be cancelled and 

test takers barred from taking future tests due to identification discrepancies or suspected fraud. 

See Second Am. Compl. Ex. C, ECF No. 24.

2 While courts have held that even a pro se plaintiff “is not entitled to raise new claims 

for the first time in an opposition to a motion to dismiss,” Morris v. Carter Glob. Lee, Inc., 997 

F. Supp. 2d 27, 42 (D.D.C. 2013), the D.C. Circuit recently held that a district court must 

consider together all allegations that pro se plaintiffs make in their pleadings—including 

oppositions—when resolving a motion to dismiss, see Brown v. Whole Foods Mkt. Grp., 789 

F.3d 146, 151 (D.C. Cir. 2015). The Court therefore considered allegations that appeared in 

Elghannam’s opposition to NABP’s motion to dismiss in addition to those in his complaint.

2

 
On December 14, 2015, the Court granted NABP’s motion because it found Elghannam’s

pleadings to be “completely ‘devoid of . . . factual enhancement’ regarding potential misconduct 

by NABP.” Elghannam, 2015 WL 8751097, at *1 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009)). The Court then allowed Elghannam the opportunity to file an amended complaint in 

conformance with the pleading standard set forth in Iqbal and in Bell Atlantic Corp. v. Twombly, 

550 U.S. 544 (2007). Id. at *2. Following this order, Elghannam timely filed a first amended 

complaint on December 22, 2015. First Am. Compl., ECF No. 18. NABP again moved to 

dismiss, observing that the new complaint was similarly devoid of facts or plausible allegations

of wrongdoing. See Def.’s Mot. Dismiss First Am. Compl., ECF No. 20. Elghannam responded 

to the motion, reasserting the allegations included in the first amended complaint and also 

claiming that the letter he received from ETS cancelling his score was “forged.” Pl.’s Opp’n

Def.’s Mot. Dismiss First Am. Compl., ECF No. 21, at 8–9.

Following a status conference in early February, the Court sua sponte granted Elghannam

the opportunity to supplement his opposition to NABP’s motion to dismiss his first amended 

complaint. Instead of supplementing his opposition, however, Elghannam filed a second 

amended complaint. In this latest version of his complaint, Elghannam again incorporates the 

additional allegation raised in the first amended complaint (that NABP conspired with ETS to 

cancel his TOEFL test score), but removed the forgery claim and added the allegation that NABP 

took this action against him specifically because he is Muslim. See Second Am. Compl. 1, ECF 

No. 24. Presently before the Court is NABP’s motion to dismiss the second amended complaint, 

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Elghannam’s opposition, NABP’s reply, and Elghannam’s motion for leave to file a surreply in 

support of his opposition to that motion.

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II. Standard of Review

To overcome a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), 

“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 

that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). 

Facial plausibility entails “factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Id. While the court “must take all of the 

factual allegations in the complaint as true,” legal conclusions “couched as a factual allegation” 

do not warrant the same deference. Id. (citing Twombly, 550 U.S. at 555).

“A document filed pro se is to be liberally construed and a pro se complaint, however 

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 

106 (1976)) (internal citation and quotation marks omitted). A court generally cannot consider 

matters outside the pleadings in deciding a Rule 12(b)(6) motion, but it may consider 

“documents attached as exhibits or incorporated by reference in the complaint.” Ward v. D.C. 

Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (citing Hinton v. Corr. 

Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009)) (internal citation omitted). Further, a pro 

3 The Court denies Elghannam’s motion for leave to file a surreply, in which he attempts 

to rebut the argument in NABP’s reply that he has not alleged facts showing that NABP knew of 

his Muslim faith. NABP originally raised this argument when it moved to dismiss Elghannam’s 

second amended complaint—an argument to which Elghannam could have responded in his 

opposition to that motion. Because a surreply is appropriate “only to address new matters raised 

in a reply, to which a party would otherwise be unable to respond,” U.S. ex rel. Pogue v. 

Diabetes Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d 270, 276 (D.D.C. 2002) (emphasis 

added), the Court will not consider Elghannam’s proposed surreply. See also Minute Order, 

May 4, 2016 (denying leave to file).

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se plaintiff’s pleadings must be “considered in toto” to determine whether they “set out 

allegations sufficient to survive dismissal.” Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 

146, 151 (D.C. Cir. 2015). 

“The standard for dismissing a complaint with prejudice is high,” Belizan v. Herson, 434

F.3d 579, 583 (D.C. Cir. 2006), and courts must “freely give leave when justice so requires,” 

Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). However, dismissal with prejudice 

may be appropriate “when a trial court determines that the allegation of other facts consistent 

with the challenged pleading could not possibly cure the deficiency.” Rollins v. Wackenhut 

Servs., Inc., 703 F.3d 122, 131 (D.C. Cir. 2012) (quoting Firestone, 76 F.3d at 1209). That is 

particularly true when the plaintiff has had repeated opportunities to amend his complaint. See, 

e.g., Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (quoting In re 

Read-Rite Corp., 335 F.3d 843, 845 (9th Cir. 2003)) (“[W]here the plaintiff has previously been 

granted leave to amend and has subsequently failed to add the requisite particularity to its claims, 

‘[t]he district court’s discretion to deny leave to amend is particularly broad.’”).

III. Analysis

Elghannam’s second amended complaint presents several claims: that NABP conspired 

with ETS to breach a contract between ETS and Elghannam; that NABP engaged in a civil 

conspiracy with ETS; and that NABP took adverse actions against Elghannam because he is 

Muslim.

4 Because his complaint fails to meet “the threshold requirement of [Federal] Rule [of 

Civil Procedure] 8(a)(2) that” it contain allegations that “possess enough heft to show that [he] 

4 Elghannam also contends, in a separate count, that his contract with ETS constituted an 

“unconscionable contract.” Second Am. Compl. ¶¶ 23–25. However, because unconscionability 

is a defense to enforcement and not a cause of action, see, e.g., Williams v. Walker-Thomas 

Furniture Co., 350 F.2d 445, 450 (D.C. Cir. 1965), this Court will dismiss that count of 

Elghannam’s second amended complaint.

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is entitled to relief” against NABP, Twombly, 550 U.S. at 557 (internal quotation marks 

omitted), it fails to state a claim upon which relief can be granted and therefore warrants 

dismissal under Federal Rule of Civil Procedure 12(b)(6). Additionally, as Elghannam has 

failed after multiple attempts to plead sufficient facts to survive a motion to dismiss, the Court 

will dismiss the second amended complaint in its entirety with prejudice for the reasons stated 

below.

A. Conspiracy in ETS’s Alleged Breach of Contract

Elghannam alleges that NABP conspired in ETS’s purported breach of its contract with 

him to administer and score the TOEFL. The Court construes this claim as essentially one of 

tortious interference with contract by NABP. In the District of Columbia, a plaintiff must prove 

all of the following to prevail on a claim of tortious interference with contract: “(1) the existence 

of a contract, (2) defendant’s knowledge of the contract, (3) defendant’s intentional procurement 

of the contract’s breach, and (4) damages resulting from the breach.” Cooke v. Griffiths-Garcia 

Corp., 612 A.2d 1251, 1256 (D.C. 1992) (internal citation omitted). According to Elghannam, 

NABP is responsible for two specific breaches of contract by ETS: ETS’s reporting of 

Elghannam’s cancelled scores and ETS’s cancellation of those scores in the first place.

As to the first purported breach, the ETS registration bulletin provides that if a test taker’s 

scores are cancelled, “those scores will not be reported.” Second Am. Compl. ¶ 20. Elghannam 

contends that ETS breached this provision by reporting his passing scores prior to cancelling 

them. Id. Elghannam also claims that the month-long period between the initial reporting to 

NABP and the subsequent cancellation of the test scores is evidence that NABP “requested” the 

cancellation, implicating it in the breach of contract. Id.

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These allegations fail to support a claim of tortious interference with contract. First, even

if Elghannam is correct that ETS breached a contract with him by reporting his scores,

5 he

asserts no facts that implicate NABP in causing the alleged breach of the contract’s reporting 

provision. Elghannam attempts to connect NABP to the breach by claiming that NABP

“requested” ETS to “cancel” the scores. Second Am. Compl. ¶ 20. Yet this fact, even taken as 

true, does not allow the Court to draw “the reasonable inference that the defendant is liable for 

the misconduct alleged,” Iqbal, 556 U.S. at 678, because Elghannam premises this particular

aspect of his claim on ETS’s reporting (not its cancellation) of his score. Elghannam offers no 

factual allegations that NABP had a hand in the reporting process, and—at a minimum—has 

failed to “show[] that [he] is entitled to relief” against NABP on this basis. Fed. R. Civ. P. 

8(a)(2).

Regarding Elghannam’s apparent claim that the cancellation of his scores also 

constituted a breach of contract by ETS, see Second Am. Compl. ¶ 21(b), Elghannam speculates

that NABP asked ETS to take this action. Yet even assuming the other elements of a tortious 

interference claim are met, Elghannam alleges no facts to suggest that NABP intentionally 

procured the contract’s breach or that it ever asked ETS to cancel Elghannam’s scores. He

claims that because the registration bulletin states that ETS would “notif[y] the test taker in 

writing about its concerns” before cancelling scores, ETS breached its contract with him by not 

providing him with any prior notice or process. Second Am. Compl. ¶ 21. But again, the only

fact Elghannam offers to hold NABP liable is the approximately month-long delay between the 

5 NABP correctly notes that the Superior Court of the District of Columbia recently 

dismissed Elghannam’s separate breach-of-contract claims against ETS. Mot. Dismiss Second 

Am. Compl. 1. Elghannam argues, without explanation, that NABP’s citation in its motion to 

the Superior Court’s opinion is further proof of the conspiracy between the NABP and ETS. See

Pl.’s Opp’n Mot. Dismiss Second Am. Compl. ¶ 1.

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initial reporting of the scores and the later cancellation, which he argues is “circumstantial 

evidence that NABP requested [the cancellation] from ETS.” Id. Without more, Elghannam’s 

assertion that NABP intentionally caused ETS to breach its contract with him is “a conclusory 

allegation” with no supporting facts. Twombly, 550 U.S. at 557. 

B. Civil Conspiracy

Elghannam’s next claim is civil conspiracy. To make out a conspiracy claim, Elghannam 

must establish “(1) an agreement between two or more persons (2) to participate in an unlawful 

act, and (3) injury caused by an unlawful overt act performed by one of parties to the agreement, 

and in furtherance of the common scheme.” Hill v. Medlantic Health Care Grp., 933 A.2d 314, 

334 (D.C. 2007). Civil conspiracy is not an independent tort in the District of Columbia. Id.

Rather, it is only a “means for establishing vicarious liability for an underlying tort.” Id.

(quoting Paul v. Howard Univ., 754 A.2d 297, 310 (D.C. 2000)). 

As an initial matter, Elghannam does not even attempt to specify what unlawful act he 

alleges NABP and ETS conspired to commit. To the extent he alleges that they agreed to breach 

ETS’s contract with him, this count is duplicative of his tortious interference with contract 

claim. Moreover, Elghannam fails to allege facts to support a plausible inference of an 

agreement between NABP and ETS. Elghannam claims that NABP and ETS were involved in a 

“civil conspiracy” to discriminate against him based on his Muslim faith. Second Am. Compl. ¶ 

16. And he alleges that NABP “request[ed]” and “convinced” ETS to cancel his scores to 

prevent him from receiving his pharmacist certificate, id. ¶ 4, as part of a conspiracy with ETS 

to “discriminate against Muslims,” id. ¶ 3. He further claims that NABP withheld his certificate 

for “more than one month,” until ETS sent the TOEFL score cancellation letter, Second Am. 

Compl. ¶ 14, thus showing a “relationship” between NABP and ETS, id. ¶ 16.

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But, as in his prior complaints and other pleadings, Elghannam again fails to provide 

“enough fact to raise a reasonable expectation that discovery will reveal evidence of an illegal 

agreement.” Twombly, 550 U.S. at 556. Elghannam’s assertions that NABP made a “request” 

or “convinced” ETS to issue the cancellation are no more than “naked assertion[s] devoid of 

further factual enhancement.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). His 

“bare assertion[s], much like the pleading of [antitrust] conspiracy in Twombly, . . . [are] 

conclusory and not entitled to be assumed true.” Id. at 681. Elghannam’s additional contention 

that NABP purposefully withheld the certificate until ETS cancelled the scores also does not 

plausibly allow for the inference that it was more than “independent action,” Twombly, 550 

U.S. at 557, and therefore does not “raise these allegations above the speculative level,” id. at

555.

C. Discrimination

Finally, Elghannam generally contends that NABP and ETS “planned to discriminate 

against Muslims and to prevent them [from] tak[ing] any pharmacist certificate” in the United 

States. Second Am. Compl. ¶ 27. Yet the only “facts” Elghannam marshals in support of his

discrimination claim are news articles and studies of anti-Muslim discrimination in the United 

States, none of which are in any way connected to NABP. Id. ¶¶ 28–31. Elghannam’s assertion

of unlawful discrimination thus amounts to nothing more than a “legal conclusion[]” without 

supporting factual allegations, Twombly, 550 U.S. at 564, and as such is “not entitled to the 

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assumption of truth,” Iqbal, 556 U.S. at 680. The Court must therefore dismiss this claim as 

well. 

IV. Conclusion

In sum, Elghannam has repeatedly failed to cure the deficiencies in his pleadings, despite 

being afforded numerous opportunities to amend and supplement his prior filings. Any

additional attempts to plead facts in support of his claims would be futile. Accordingly, the

Court will grant NABP’s motion to dismiss the second amended complaint with prejudice.

An order accompanies this memorandum opinion.

CHRISTOPHER R. COOPER

United States District Judge

Date: July 15, 2016

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