UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TRACY DAVIS, : : Plaintiff, : Civil Action No.: 15-0135 (RC) : v. : Re Document Nos.: 30, 31 : TRANSPORTATION SECURITY : ADMINISTRATION, et al. , : : Defendants. :
MEMORANDUM OPINION
G RANTING W ASHINGTON M ETROPOLITAN A REA T RANSIT A UTHORITY ’ S M OTION TO D ISMISS ; G RANTING U NITED S TATES T RANSPORTATION S ECURITY A DMINISTRATION ’ S M OTION TO D ISMISS
I. INTRODUCTION Plaintiff Tracy Davis sued the W ashington D.C. transit authority and the United States Transportation Security Adminis tration seeking recovery for inj uries her daughter sustained from an explosive-detecting canine . Defendants timely moved to dism iss on various grounds. Well after the deadline for doing so—and without seeking leave from the Court—Plaintiff filed an opposition to the motions. The opposition amounted to little m ore than two conclusory sentences asking the Court to deny the motions. Because Plaintiff filed her oppos ition late and never sought le ave from the Court for doing so, the Court disregards i t. And because Plaintiff did n ot even attempt to remedy her latefiling by responding to the arguments made in Defendants’ motio ns to dismiss, the Court deems the arguments as conceded, grants the motions, and dismisses th e case.2 II. FACTUAL BACKGROUND On Inauguration Day, 2013, Ms. Dav is and her daughter A.D. walk ed to the Metro Center subway station after attend ing the presidential parade. Am. Compl. ¶¶ 11–12, ECF No. 26. As a security measure—and at the request of the U.S. Trans portation Security Administration (“TSA”) and the W ashington Metropolitan Area Transit Administration (“WMATA”)—a Monroe County, New Y ork K-9 officer was stationed at the entrance of the Metro station with an explosive detection dog, which Plaintiff alleges was owned and trained by the TSA. Am. Compl. ¶ 13, 16. Acco rding to Ms. Davis, as she and A.D. were entering the Metro Center stati on, “the TSA owned and trained dog suddenly and ferociously attacked . . . A.D., biting her hand and causing her injuries.” Am. Compl. ¶ 17. Ms. Davis now sues WMATA and the TSA for negl igence. Am. Compl. ¶¶ 18–25.

III. PROCEDURAL BACKGROUND The Court previously granted the United States’s motion to dism iss the complaint, but granted Plaintiff leave to amend he r complaint to name WMATA as a defendant and otherwise refine her factual allegations. See Mem. Op., ECF No. 23, Davis v. United States , 196 F. Supp. 3d 106 (D.D.C. 2016). The Court also allowed for limited juris dictional discovery on the question of whether a mandatory d irective governed the training of the TSA canine, and if one did exist, whether TSA employees followed its command. See Davis , 196 F. Supp. 3d at 121– 22. Jurisdictional discov ery closed in January 2017. See Min. Order of Aug. 10, 2016. On February 13, 2017, WMATA moved to dismiss. See Def. WMATA’s Mot. Dismiss (“WMATA’s Mot. Dismiss”), ECF No. 30. Three days later, the TS A moved to dismiss. See Def. TSA’s Mot. Dismiss (“TSA’ s Mot. Dismiss”), ECF No. 31. Wi thout ever moving for an3 extension of time, Plaintiff filed an opposition to both motion s on March 23, 2017. See Pl.’s Opp’n Defs.’ Respective Mots. Dismiss (“Pl.’s Opp’n”), ECF No. 32. Subtracting the case caption, s ignature block, and certificate of service, Plaintiff’s opposition is just over a half of a page in length. See Pl.’s Opp’n. Of that half-page, only two sentences could be classified a s anything but formalities or ba ckground. See Pl.’s Opp’n ¶¶ 2–3. Those paragraphs read as follows: 2. The TSA supplied a canine to th e sheriff’s office that even tually bit the minor plaintiff without cause or provocation. 3. Plaintiffs should be permitted to proceed with their case ag ainst Defendants to prove that whether [sic] the TSA knew or should have known that the canine was a danger to the public. Pl.’s Opp’n ¶¶ 2–3. The TSA filed a reply to this opposition, arguing that the Court should treat its motion as conceded both because Plaintiff filed the opposit ion over 20 days late, and because she did not meaningfully respond to its motion. See Def. TSA’s Reply Supp. Mot. Dismiss, ECF No. 33. Presumably because Plaintiff’s opposition did not addr ess WMATA or the arguments it raised in its motion to dismiss, WMATA did not file a reply.

IV. ANALYSIS Among other reasons, WMATA move d to dismiss on the grounds that it has sovereign immunity in cases involving “an e xercise of a governmental func tion,” which includes “the exercise of its police functions .” WMATA’s Mot. Dismiss at 5–7 . The TSA moved to dismiss on the grounds that it is entitled to sove reign immunity under the “discretionary function exception” to the Federal Tort Cl aims Act (“FTCA”), because TSA ’s canine training decisions are “grounded in social, econom ic, and political policy.” TSA’ s Mot. Dismiss at 10–13. As outlined above, Plaintiff did not respond to either argument.4 A. Plaintiff Effectively Con cedes Defendants’ Motions Under Local Civil Rule 7(b), in the absence of a scheduling ord er, a party’s memorandum in opposition to a motion is due 14 d ays after the motion is se rved. “If such a memorandum is not filed within the prescribed time, the Court may treat the m otion as conceded.” LCvR 7(b). If a party needs more time to complete a memorandum in opposition, she must file a motion for an extension of time. See Fed. R. Civ. P. 6(b)(1). In fact, it is an abuse of discretionfor a court to consider a late filing in the absence of such a motion. Smith v. District of Columbia , 430 F.3d 450, 456–57 (D.C. Cir. 2005) (citing Lujan v. Nat’l Wildlife Fed’n , 497 U.S. 871, 896 (1990)); see also D.A. v. District of Columbia , 07-cv-1084, 2007 WL 4365452, at *2 (D.D.C. Dec. 6, 2007). Plaintiff filed her opposition to the motions to dismis s well outside of the 14-day limit established by the local rules. See LCvR 7(b). Compare WMATA’s Mot. Dismiss, and TSA’s Mot. Dismiss, with Pl.’s Opp’n. She has still not moved for an extension of time. Thus, the Court will disregard Plaintiff’s opposition to the motions to d ismiss. This makes Defendants’ motions functionally unopposed. See Syska Hennessey Grp. Const., Inc. v. Black , 06-cv-486, 2007 WL 2908746, at *1 (D.D.C. Oct. 1, 2007). Notably, even if Plaintiff had s ought leave to late file, she w ould have had to make a showing of “excusable neglec t.” Fed. R. Civ. P. 6(b); see also D.A. , 2007 WL 4365452, at *2. Establishing excusable neglect r equires a movant to “state withparticularity the grounds” for the motion, and “allege the facts cons tituting excusable neglect; t he mere assertion of excusable neglect unsupported by facts [is] insufficient.” Inst. For Policy Studies v. CIA , 246 F.R.D. 380, 383 (D.D.C. 2007). Without such a s howing, even if a motion fo r an extension of time had been made, the Court could grant the m otions and dismiss the complai nt without prejudice. See LCvR 7(b)(1)(B); Cohen v. Bd. of Trustees of the Univ. of the D.C. , 819 F.3d 476, 481 (D.C. Cir. 2016)5 (“Because the district court prope rly denied [the plaintiff’s] motion to extend time, the court did not consider [the] opposition brief . At that point the tardy o pposition was equivalent to no opposition at all. Under our precedent, the district court did not commit reversible error in granting the defendants’ unopposed motion to dismiss the compla int . . ., at least insofar as dismissal was without prejudice.”); see also Habliston v. FIN RA Dispute Resolution, Inc. , 15-cv2225, 2017 WL 1906584, at *3 (D.D.C. May 8, 2017). Although the D.C. Circuit has hel d that courts may not dismiss cases with prejudice for failure to oppose when a party has late-filed an opposition, see Cohen , 819 F.3d at 481, “[i]t is well understood in this Circuit th at when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” Xenophon Strategies, Inc. v. Jernigan Copeland & Anderson, PLLC , 15-cv-174, 2017 WL 3278839, at *7 ( D.D.C. Aug. 1, 2017) (emph asis added) (quoting Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries , 284 F. Supp. 2d 15, 25 (D.D.C. 2003)); see also Texas v. United States , 798 F.3d 1108, 1110 (D.C. Cir. 2015), cert. denied sub nom. Texas v. Davis , 136 S. Ct. 981 (2016) (“[Local Rule 7(b)] is understood to mean that if a party files an opposition to a motion and therein add resses only some of the movant’s arguments, the court may treat the unaddressed arguments as con ceded.”). To determine whether the arguments are conceded when an opposition has been disregar ded as late-filed, the court must look to the late-filed oppositi on to determine whether the opposition “attempt[ed] to remedy” the effective concession through an “attempt to respond to the motion to dismiss.” See
Cohen , 819 F.3d at 483–84 (comparing the facts in Cohen to those in Fox v. American Airlines , where a court justifiably dismissed a case with prejudice becau se the plaintiff did not respond to the motion at all, and concluding th at “Cohen’s relatively prom pt attempt to respond to the6 motion to dismiss, as well as t he absence of any bad faith or p rejudice to the defendants, makes all the difference”). Plaintiff simply made no effo rt to respond to either of Defendants’ immunity arguments. WMATA argued that it was immune f rom suit under the WMATA Compa ct. WMATA’s Mot. Dismiss at 5–7. The TSA maintai ned that it was immune under th e discretionary function exception to the Federal Tort Claims Act. TSA’s Mot. Dismiss at 10–13. Plaintiff did not mention immunity, let alone these statutes or their exceptions. See Pl.’s Opp’n. The Court is not inclined to parse through Defendants’ legal arguments and come up with the arguments it feels would have best supported Ms. Davis’s case. Hewitt v. Chugach Gov’t Servs., Inc. , 16-cv-2192, 2016 WL 7076987, at *3 (D.D.C. D ec. 5, 2016) (“Plaintiff’s abbr eviated twopage Opposition does not even mention the manual or make any other argument that it could somehow support a different or sep arate claim such that dismiss al would be unwarranted. In such a circumstance, it is not the Court's duty to articulate atheory for him.”). Accordingly, the Court treats Defendants’ soverei gn immunity arguments as conced ed, grants the motions to dismiss, and dismisses the case. B. Even if Plaintiff Had Not Conceded Defendants’ Motions, The y Would be Granted Even if the Court were not to t reat Defendants’ sovereign immun ity arguments—and, effectively, their motions to di smiss—as conceded, the Court wo uld still dismiss the case on sovereign immunity grounds. With respect to the TSA, as note d by the Court in its prior mem orandum opinion, the training of canines generally qua lifies under the discretionary -function exception of the FTCA, because “[j]ust as with human employees, creating a training pr ogram for canines ‘requires consideration of fiscal constraints, public s afety, the complex ity of the task involved, the degree7 of harm a wayward [canine] might cause, and the extent to which[canines] have deviated from accepted norms in the past.” Davis , 196 F. Supp. 3d at 119 (alterations in original) (quoting
Burkhart v. WMATA , 112 F.3d 1207, 1217 (D.C. Cir. 1997)). However, because it w as possible that the injury resulted “from agovernment employee’s failure to follow a specific, mandatory policy requiring a particular cou rse of action”—which would notqualify under the exception— the Court allowed limited jurisdi ctional discovery so that Plai ntiff had a chance to identify such a policy. Id. Despite ample opportunity for jur isdictional discovery, Plaint iff has failed to identify any regulation, statute, or policy that was violated. See generally Pl.’s Opp’n. Thus, the Court would dismiss Plaintiff’s claims against the TSA even if its mo tion to dismiss were not conceded. See Davis , 196 F. Supp. 3d at 113 (describing Plaintiff’s burden to establish subjectmatter jurisdiction). As for WMATA, its “police activit ies are an exercise of a ‘gove rnmental’ function, and hence lie outside the scope of [ WMATA’s] waiver of sovereign im munity.” Dant v. District of
Columbia , 829 F.2d 69, 74 (D.C. Cir. 1987). The operation of a police force is a quintessential governmental function. Martin v. WMATA , 667 F.2d 435, 436 (4th Cir. 1981). Plaintiff’s claim against WMATA stems from WMATA ’s utilization of a Monroe County police officer and a TSA canine to provide security t o the Metro system during Inaug uration Day, which qualify as police activities. See Am. Compl. ¶ 15. And even if the ut ilization of such security assets did not qualify as a “quintessentia l government function,” the clai ms would still be dismissed, because WMATA’s request for—or consent to—the presence of such security assets was a discretionary function for the sam e reasons that it was for the TSA. See Burkhart , 112 F.3d at 1217. Thus, the court would also dismiss Plaintiff’s claim aga inst WMATA.8 V. CONCLUSION For the foregoing reasons, WMATA’s motion to dismiss is granted and the TSA’s motion to dismiss is granted. An order consistent with this Memorandu m Opinion is separately and contemporaneously issued.
Dated: August 28, 2017 RUDOLPH CONTRERAS United States District Judge