# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____



## No. 20

- 7104 September Term, 20 21

F ILED O N : September 21, 2021

P OTOMAC E LECTRIC P OWER C OMPANY

, A PPELL ANT

v

.

W ASHINGTON M ETROPOLITAN A REA T RANSIT A UTHORITY

, A PPELL EE

_____

Appeal from the United States District Court

for the District of Columbia

(No. 1: 19

- cv

- 02709 )

_____

Before: S RINIVASA N

, Chief Judge

, M ILLETT

, Circuit Judge , and G INSBURG

, Senior

Circuit Judge

.

J U DGMEN T

This appeal was considered on the record from the United States District Court for the

District of Columbia and on the briefs of the parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. R.

34(j). The panel has accorded the issues full consideration and has d etermined that they do not

warrant a published opinion. See D.C. Cir. R. 36(d). It is hereby

ORDERED AND ADJUDGED that the judgment of the district court be affirmed.

Potomac Electric Power Company (Pepco) alleged Washington Metropolitan Area

Transit Authority’s (WMATA) negligence resulted in a switchgear at WMATA’s worksite

exploding, damaging Pepco’s property. In its amended complaint, Pepco relied upon the

doctrine of res ipsa loquitur to state its negligence claim . The district court granted WMATA’s

motion to dismiss because Pepco’s complaint did not plausibly allege the third element of a

negligence claim under the doctrine of res ipsa loquitur , to wit:

“(1) The event must be of the kind which ordinarily does not occur in the absence of

someone ’ s negligence; (2) it must be caused by an agency or instrumentality within the

exclusive control of the defendant; [and] (3) it must not have been due to any voluntary act ion

or contribution on the part of plaintiff.”2 Bell v. May Dep ’ t Stores Co. , 866 F.2d 452, 455 (D.C. Cir. 1989) (quoting Rassoulpour v.

Washington Metro. Area Transit Auth. , 826 F.2d 98, 100 (D.C. Cir. 1987)).

Pepco provided the electricity running through the switchgear that exploded

, but it

pleaded no facts allowing the inference that its electrical system did not cause the explosion.

Pepco’s sole sentence on the subject in its amended complaint was conclusory: “While Pepco

provided electr icity as it does to all of its customers, it took no voluntary action that contributed

to the explosion of Defendant’s switchgear.” Such “ [t] hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal , 556

U.S. 662, 678 (2009). The allegation that the flow of Pepco’s electricity was equivalent to the

flow provided to “all of its customers” does not plausibly allow the inference that the flow of

electricity contained no surges or oth er defects that could have contributed to the explosion.

Although Pepco need not prove at this stage that its negligence did not contribute to the

explosion, it must plead facts allowing a plausible inference that it did not contribute to the

explosion; th is it did not do. Therefore, the district court properly dismissed Pepco’s complaint.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The clerk is

directed to withhold issuance of the mandate herein until seven days after disp osition of any

timely petition for rehearing. See D.C. Cir. R. 41.

Per C uriam

FOR THE COURT:

Mark J. Langer, Clerk

B Y : /s/

Daniel J. Reidy

Deputy Clerk