Federal District Court Opinions

Plaintiff, v. KAREN JOHNSON-NORMAN, Defendant. Civil Action
No. 06-01186 (ESH). United States District Court, D.
Columbia. December 20, 2006


ELLEN HUVELLE, District Judge

This case is the latest chapter in a lengthy saga of
alleged harassment and related litigation involving
plaintiff Virgil Rogers and defendant Karen Johnson-Norman.
Plaintiff’s pro se amended complaint advances eight claims.
Count I alleges that defendant unlawfully accessed
plaintiff’s consumer credit report in violation of the Fair
Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et
seq. (2006). The crux of Counts II-VIII is plaintiff’s
allegation that, on various occasions, defendant falsely
accused him of stalking and harassment. Defendant moves for
dismissal pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. For the reasons stated herein, defendant’s
motion will be granted in part but denied as to Count
I.[fn1] Page 2


For a period between 1998 and 2000, the parties had a
romantic relationship. (Am. Cmpl. ¶ 7.) On multiple
occasions after the relationship ended, defendant informed
law enforcement authorities that she had experienced
unwanted contact from plaintiff. (See e.g., id.
¶¶ 12, 18, 20, 21.) Defendant’s reports
resulted in a series of criminal and civil proceedings
against plaintiff, in response to which plaintiff on one
previous occasion brought a civil suit against
defendant.[fn2] (See e.g., id. ¶¶ 9, 12-13,
17, 26-33, 38-41.) For present purposes, it suffices to
recite only highlights of the parties’ tortured litigation

I. Criminal Proceedings

In March 2001, plaintiff was convicted in D.C. Superior
Court of attempted stalking. (Def.’s Ex. B [“CPO Appellate
Op.”] at 1 n. 1, available at 2005 WL 2428340; Def.’s Ex. E
[“CPO Transcript”] at 13.) For his offense, plaintiff was
placed on probation and “ordered[,] as a condition of
probation, to have no contact with [defendant] of any
kind.” (Id.) Plaintiff’s conviction was affirmed by the
D.C. Court of Appeals. (CPO Appellate Op. at 1 n. 1.) Page

In 2003, plaintiff was again charged with stalking
defendant. (Id.) This time, however, a jury acquitted him.

II. CPO Proceeding

Immediately after plaintiff’s 2003 criminal trial, Judge
Lynn Leibovitz, who had presided over that trial, held a
hearing on defendant’s request for a civil protection order
(“CPO”). (See id.) Defendant contended that on a number of
occasions in 2002 and 2003 plaintiff had telephoned her and
sent her anonymous letters in violation of the existing
“stay-away” order. (See, e.g., Def.’s Ex. A [“CPO Op.”] at
3 (referencing defendant’s allegations that she had been
the victim of the unwanted contacts and “was extremely
distressed by them”).) Plaintiff denied the alleged
conduct. (See, e.g., CPO Transcript at 14 (explaining that,
at the criminal trial, defendant denied having sent the

Judge Leibovitz began the hearing by listing the evidence
under consideration, which included various letters,
envelopes, and emails that the government had introduced in
plaintiff’s criminal trial; evidence that plaintiff’s
fingerprints matched fingerprints on one of the letters
that defendant had received in January 2003; an exhibit on
which plaintiff had designated those portions of the
January 2003 letter that he recognized as his own language;
and a stipulation acknowledging the existing stay-away
order. (See id. at 2-10.) In addition, Judge Leibovitz
considered defendant’s and plaintiff’s testimony from the
criminal trial. (See id. at 10, 14.)

Applying the “preponderance of evidence” standard, Judge
Leibovitz determined that plaintiff had indeed committed
the alleged acts of harassment. (Id. at 11-18.) In fact,
she found “by a far greater standard[] than preponderance”
that plaintiff had sent the anonymous letters. (Id. at 15;
see id. at 18 (stating that the letters “entirely
disclose[d] themselves as letters sent by Page 4
[plaintiff]”).) She further found that the letters were
“obsessive,” and that plaintiff had “acted intentionally,
willfully and with malice” in a successful “effort to cause
emotional distress to defendant.” (Id.) Accordingly, Judge
Leibovitz concluded:

I . . . find that there is a preponderance of evidence
and that there is good cause to believe that between June
2002 and May 2003 . . . [defendant] committed the offense
of stalking, particularly harassment, by writing letters
and making the phone calls and having the other contacts
that he did.

And . . . I further find that there is good cause to
believe [plaintiff] poses a danger to [defendant].


On such findings, Judge Leibovitz entered a CPO against
plaintiff. (Id. at 19.) The CPO provided that, for a period
of one year from October 29, 2003, plaintiff was prohibited
from going within one hundred yards of defendant, her
husband, her children, her parents, her siblings, her home,
her workplace, or her church. (Id.) In addition, plaintiff
was prohibited from contacting defendant or her family
members in any manner, and from possessing, purchasing,
receiving, or selling any firearm or ammunition. (Id.)
Finally, he was ordered to undergo a mental health
evaluation and an alcohol and drug screening through the
Court Services and Offender Supervision Agency (“CSOSA”).
(Id. at 23.)

IV. Plaintiff’s Motion to Alter or Amend and for
Reconsideration of the CPO

Plaintiff contested the validity of the CPO in a letter to
Judge Leibovitz dated November 26, 2003. (See CPO Op. at 1.)
In the letter, plaintiff claimed that “(1) [the] `not
guilty’ verdict in [the] prior criminal matter precluded
the court from making its findings in [the CPO] case, (2)
the CPO violate[d] his Second Amendment right to bear arms,
and (3) the court unreasonably ordered [the psychiatric and
substance abuse] evaluations.” (Id. at 4.) Page 5

Judge Leibovitz treated plaintiff’s letter as a motion to
alter or amend judgment and for reconsideration. (Id. at
1.) As a threshold matter, the motion was untimely. (Id. at
4.) Nonetheless, Judge Leibovitz went on to reject
plaintiff’s arguments. First, plaintiff’s acquittal in the
criminal case did not foreclose the CPO because the jury’s
application of the reasonable doubt standard to acquit
plaintiff “did not preclude the court from finding `good
cause to believe’ that [plaintiff] had stalked
[defendant].” (Id.) Second, because the CPO merely provided
notice of a federal statute restricting the sale and
possession of firearms, there was no Second Amendment
violation. (Id. at 4-5.) Finally, the CPO’s requirement
that plaintiff undergo psychiatric and substance abuse
evaluations, plus any appropriate treatment, was expressly
authorized by D.C. law. (Id. at 5.)

V. Plaintiff’s Appeal from the CPO

After Judge Leibovitz declined to alter, amend, or
reconsider the CPO, plaintiff appealed to the D.C. Court of
Appeals. (CPO Appellate Op. at 1.) In addition to his
previous claims, plaintiff asserted that the D.C. Superior
Court had lacked subject matter jurisdiction over the CPO,
that the CPO proceedings had been unfair because he was
never given the opportunity to cross-examine defendant,
that there was not “good cause to believe” he had committed
an intrafamily offense, that the CPO was invalid because it
had an extraterritorial effect, and that the CPO violated
his First Amendment rights. (Id. at 1-3.)

The D.C. Court of Appeals rejected all of plaintiff’s
arguments. The D.C. Superior Court had properly exercised
subject matter jurisdiction over the CPO because defendant
had “unequivocally alleged that `the underlying
intrafamily offense . . . occurred in the District of
Columbia.'” (Id. at 1 (quoting D.C. Code §
16-1001(5) (2001)).) Plaintiff’s criminal acquittal Page
6 did not bar entry of the CPO because “acquittal in a
criminal case, in which guilt must be proved beyond a
reasonable doubt, does not preclude relitigation of the
same factual issues when they are subsequently presented in
a civil proceeding governed by a less exacting standard of
proof.” (Id. at 2.) There was no plain error as to
plaintiff’s procedural objections to the CPO proceedings
given that, because defendant had not testified, plaintiff
had not been deprived of his right to
cross-examination.[fn4] (Id.) Plaintiff’s claim “that there
was not `good cause to believe’ that he [had] committed an
intrafamily offense” failed because he had not demonstrated
that Judge Leibovitz’s findings were clearly erroneous.
(Id.) Plaintiff’s CPO was valid notwithstanding its
extraterritorial effect because the D.C. Superior Court had
“jurisdiction over the subject matter and [over
plaintiff].” (Id.) Because “the Second Amendment guarantees
a collective rather than an individual right,” the CPO did
not deny plaintiff his right to bear arms. (Id. (quoting
Sandidge v. United States, 520 A.2d 1057, 1058 (D.C.
1987)).) Similarly, ordering plaintiff to stay away from
the defendant’s church did not deprive plaintiff of his
First Amendment right to the free exercise of religion.
(Id.) Finally, “in light of the broad remedial purposes of
the [District of Columbia’s] intrafamily offense statute .
. . the other provisions of the CPO challenged by
[plaintiff] were properly included therein in the exercise
of the trial court’s broad discretion.” (Id. (citation

VI. CPO Extension Proceeding

During the pendency of the above appeal, defendant sought
an extension of the CPO. (See Def.’s Ex. L [“CPO Extension
Transcript”] at 1.) Judge Robert Rigsby of the D.C.
Superior Page 7 Court conducted a CPO extension hearing on
October 28, 2004. (Id.) Plaintiff did not appear at the
hearing, and the record reflects that Judge Rigsby devoted
considerable attention to determining whether plaintiff had
been properly served. (See id. at 2-13.) Defendant’s
counsel explained that, because they did not know where
plaintiff lived, they had served him with copies of the
hearing notice, the CPO, and the extension motion by both
mail (to a post office box) and fax. (Id. at 2, 4, 11.)
Further, counsel represented that plaintiff had agreed by
telephone to service by fax, that they had cause to believe
that he had received their faxed materials, and that he had
previously expressed an intention not to attend the CPO
extension hearing. (Id. at 3-4, 6, 9-13.) Judge Rigsby
credited the representations of counsel, expressly finding
that plaintiff “ha[d] been provided reasonable notice and
opportunity to be heard.” (Id. at 17; accord id. at 19.)
Satisfied that plaintiff had been properly served, Judge
Rigsby considered testimony from defendant and a CSOSA
officer. (See id. at 14-17.) Finding “good cause to believe
that [plaintiff] ha[d] committed or threatened” an
intrafamily offense (id. at 17), the judge extended the
original CPO through October 28, 2005. (Id. at 19.)


I. Legal Standard

When adjudicating a motion to dismiss pursuant to Rule
12(b)(6), a district court “must view all the allegations
and facts in the complaint in the light most favorable to
the plaintiff[], and it must grant the plaintiff[] the
benefit of all inferences that can be derived from those
facts.” Lindsey v. United States, 448 F. Supp. 2d 37, 44
(D.D.C. 2006). Pro se complaints, in particular, must be
construed liberally. E.g., id. Nonetheless, courts “need
not accept bald or controverted statements as true.” Meng
v. Schwartz, 305 F. Supp. 2d 49, 57 (D.D.C. 2004). A
complaint must Page 8 be dismissed for “failure to state a
claim when it is clear that no relief could be granted
under any set of facts that could be proved consistent with
the complaint’s allegations.” Id.

II. Collateral Estoppel Bars Counts II-VIII

“Collateral estoppel, or issue preclusion, prevents
parties from relitigating issues that have already been
adjudicated. It seeks to conserve judicial resources,
protect citizens from multiple lawsuits, and reduce the
likelihood of inconsistent verdicts.” Bryson v. Gere, 268
F. Supp. 2d 46, 54 (D.D.C. 2003). The interests advanced by
collateral estoppel must be balanced against the important
interest of permitting plaintiffs to present their cases.

Because plaintiff has not expressly identified his basis
for bringing this action in federal court — whether
diversity jurisdiction or federal question/supplemental
jurisdiction — there is some question whether the
Court should analyze defendant’s collateral estoppel
arguments under the federal standard or under the District
of Columbia’s standard. See id. at 54-56 (explaining why
diversity cases may raise the issue of whether to apply
state or federal collateral estoppel law). The District of
Columbia applies a four-part standard, barring relitigation
“(1) [of an] identical issue (2) that was fully and fairly
litigated and (3) determined by a valid judgment on the
merits (4) in which the issue was essential.” Id. at 57. By
contrast, the federal courts in this jurisdiction apply a
three-part standard:

First, the same issue now being raised must have been
contested by the parties and submitted for judicial
determination in the prior case. Second, the issue must
have been actually and necessarily determined by a court
of competent jurisdiction in that prior case. Third,
preclusion in the second case must not work a basic
unfairness to the party bound by the first determination.

Id. (alteration omitted) (quoting Yamaha Corp. of Am. v.
United States, 961 F.2d 245, 254 (D.C. Cir. 1992)). Page 9

In the present case, it is immaterial which standard is
applied. The standards are “substantially similar,” the
only difference being that the federal standard expressly
requires consideration of whether barring relitigation
would “work a basic unfairness to the party bound by the
first determination.” Id. (quoting Yamaha Corp. of Am. v.
United States, 961 F.2d 245, 254 (D.C. Cir. 1992)). Here,
plaintiff had “ample opportunity” in prior judicial
proceedings to argue that plaintiff fabricated her stalking
and harassment allegations. Id. Accordingly, there is no
“basic unfairness” in barring relitigation, assuming the
other collateral estoppel requirements are satisfied. Id.
Because the outcome of this case is the same under either
federal or local law, the following analysis (consistent
with the pleadings of both parties) employs the District of
Columbia’s four-part framework.

A. Identical Issues

To determine whether the issues here are identical to
issues already adjudicated in prior proceedings between
plaintiff and defendant, the Court must “look beyond the
labels of the claims [. . .] and examine the single,
certain and material [points] arising out of the
allegations and contentions of the parties.” Id. (quoting
Jackson v. District of Columbia, 412 A.2d 948, 953-54 (D.C.
1980) (second alteration in original)). “Where the basic
facts underlying the new claims are indistinguishable from
the facts at issue in the prior adjudication[s], the new
claims are properly precluded.” Id.

1. Count II: Negligent Infliction of Emotional Distress

In claiming that defendant is liable for negligent
infliction of emotional distress, plaintiff relies on the
following allegations: that in January 2003 defendant made
a false police report claiming plaintiff had stalked her
(Am. Cmpl. ¶ 54); that “[o]n or about January 28,
2003, Page 10 [defendant] accused [him] of personally
delivering an envelope filled with missives and pictures
enclosed to her workplace” (id. ¶ 56); that “[o]n or
about June 16, 2003 [plaintiff] was arrested in California
based solely upon allegations made by [defendant]” (id.
¶ 58); and that defendant “negligently made false or
perjured statements to the police, the [United States
Attorney’s Office] and[/]or the Superior Court.”[fn5] (Id.
¶ 64.) All of these issues arose in the CPO
proceeding, and in plaintiff’s two subsequent challenges to
the entry of the CPO. Accordingly, on Count II, the
“identical issues” requirement is satisfied.

2. Count III: Intentional Infliction of Emotional Distress

Although plaintiff uses slightly different language in
presenting his claim for intentional infliction of
emotional distress, the material issues in Count III are
the same as in Count II. (See id. ¶ 69 (“On or about
January 2003, Johnson initiated a criminal report . . .
which falsely claimed that [plaintiff] had stalked her.”);
id. ¶ 70 (“On or about June 16, 2003 [plaintiff] was
seized . . . upon a D.C. arrest warrant for false
allegations made by defendant. . . .”); id. ¶ 73
Page 11 (“[Defendant’s] conduct in fabricating criminal
allegations was extreme, and outrageous and done for the
purposes of causing [plaintiff] to be illegally arrested
and detained and to `ruin’ his life and cause him
distress.”).) Thus, for the reasons already explained with
respect to Count II, the “identical issues” requirement is
satisfied as to Count III.

3. Count IV: Abuse of Process (CPO Proceeding)

In Count IV, plaintiff claims that defendant committed an
abuse of process by seeking the initial CPO. (Id. ¶
78.) In addition to alleging that defendant’s allegations
of stalking and harassment were false (see id.), plaintiff
alleges that defendant sought to “infringe on Plaintiff’s
First Amendment Religious Freedom” by keeping him away from
her church (id. ¶ 81); that she committed an abuse
of process by seeking to have him undergo psychiatric and
substance abuse screening and treatment (id.
¶¶ 83-84); that she committed an abuse of
process by seeking to bar him from approaching her family
members (id. ¶ 85); and that she committed an abuse
of process by seeking to bar him from visiting the Veterans
Administration hospital in Washington, D.C. (Id. ¶
86.) The D.C. Court of Appeals considered all of these
issues in affirming Judge Leibovitz’s decision to award the
CPO. (See CPO Appellate Op. at 2-3.) Accordingly, the
“identical issues” requirement is satisfied as to Count IV.

4. Count V: Abuse of Process (CPO Extension Proceeding)

Plaintiff also claims that defendant committed an abuse of
process by seeking an extension of the original CPO. His
principal allegations in support of this claim are that,
when seeking the extension, defendant had not had any
contact with him in the prior five years (Am. Cmpl.
¶ 92); that she had never proved the necessity of
the drug and alcohol counseling ordered in the CPO (id.
¶ 93); that, at the CPO extension hearing, she made
“perjured statements” that Page 12 plaintiff had contacted
her (id. ¶ 94); and that she “didn’t notify him of
the [CPO extension] hearing until after it had been
completed.” (Id. ¶ 95.) As previously discussed, the
issues of whether plaintiff had made contact with defendant
during the years prior to October 2003 and whether drug and
alcohol counseling was warranted were addressed in the CPO
proceeding, and in plaintiff’s ensuing challenges to the
CPO in both the D.C. Superior Court and the D.C. Court of
Appeals. Similarly, Judge Rigsby considered the issues of
whether plaintiff had contacted defendant between the
initial CPO proceeding and the CPO extension hearing, and
whether defendant had notified plaintiff of the CPO
extension hearing. (See, e.g., CPO Extension Transcript at
19-20 (finding that “there was proper service” and that
plaintiff had violated the terms of the original CPO).)
Accordingly, the “identical issues” requirement is satisfied
as to Count V.

5. Count VI: False Reporting of a Crime

In Count VI, plaintiff alleges that in January 2003
defendant falsely reported incidents of harassment to law
enforcement.[fn6] (Am. Cmpl. ¶ 99.) As already
explained, the veracity of defendant’s January 2003
allegations of harassment was also at issue in both the CPO
proceeding and plaintiff’s subsequent challenges to the
CPO. Accordingly, the “identical issues” requirement is
satisfied as to Count VI.

6. Count VII: Perjury

In Count VII, plaintiff alleges that defendant “presented
a false petition for a CPO to Page 13 Superior Court on
or about July 31, 2003” (id. ¶ 104); that she gave
perjured testimony in the criminal trial before Judge
Leibovitz (id. ¶ 105); and that she gave perjured
statements during the CPO extension hearing.[fn7] (Id.
¶ 108.) Again, the veracity of plaintiff’s
allegations was at issue in both the original CPO
proceeding and the CPO extension proceeding. Thus, the
“identical issues” requirement is satisfied as to Count VII.

7. Count VIII: Invasion of Privacy

Finally, plaintiff claims that defendant invaded his
privacy by “defam[ing] his character through her false and
malicious accusations of criminal wrongdoing and her
efforts to obtain unwarranted injunctions.” (Id. ¶
115.) Once again, the issue of plaintiff’s veracity was
raised in the CPO proceedings and the “identical issues”
requirement is satisfied.

B. Fully and Fairly Litigated

Plaintiff does not, and could not, dispute that the issues
concerning defendant’s claims of harassment and stalking
were decided against him in the CPO proceedings before the
D.C. Superior Court and the D.C. Court of Appeals. (See,
e.g., CPO Op. at 3 (“[At the CPO hearing], [t]he court
credited [defendant’s] trial testimony, corroborated amply
by the letters themselves, that she had been the victim of
each of these contacts and that she was extremely
distressed by them. The court further found [plaintiff’s]
denial that he authored the letters incredible.”).)
Instead, plaintiff argues that he did not have a full and
fair opportunity to litigate in the CPO proceeding because
Judge Leibovitz did not require defendant to testify or
give plaintiff an Page 14 opportunity to be heard. (See
Opp. at 9-10.)

Plaintiff’s argument is without merit. Defendant was not
required to testify at the CPO hearing especially when, as
the D.C. Court of Appeals subsequently noted, plaintiff’s
counsel expressly declined Judge Leibovitz’s invitation to
present additional evidence when he could have called
defendant as an adverse witness.[fn8] (See CPO Appellate
Op. at 2.) Moreover, the transcript of the CPO proceeding
does not support plaintiff’s claim that he was denied the
opportunity to be heard. On one occasion at the close of
the hearing, Judge Leibovitz denied plaintiff’s request to
discuss the court-ordered psychiatric and substance abuse
screenings. (See CPO Transcript at 24.) However, given that
plaintiff was represented by counsel (who, moreover, had
already voiced plaintiff’s concerns about the screenings),
such a denial in no way deprived plaintiff of a full and
fair opportunity to litigate defendant’s alleged
fabrications. See, e.g., Sturdza v. Gov’t of the United
Arab Emirates, 281 F.3d 1287, 1293 (D.C. Cir. 2002)
(invoking the principle that, when a litigant is
represented by counsel, counsel speaks for the litigant in
court). The burden of proof in the CPO proceeding was the
same as here — a preponderance of the evidence
— and plaintiff’s incentive to litigate the issues
in the CPO proceeding was at least as strong as, if not
stronger than, his incentive to litigate here. See, e.g.,
Synanon Church v. United States, 579 F. Supp. 967, 973
(D.D.C. 1984) (mentioning the plaintiff’s prior incentive
to litigate as one basis for finding that collateral
estoppel’s “full and fair opportunity” requirement was
satisfied), aff’d, 820 F.2d 421 (D.C. Cir. 1987). Thus,
the Page 15 CPO proceeding satisfied collateral estoppel’s
“full and fair opportunity” requirement.

C. Valid Judgment on the Merits

“A judgment is valid when it was rendered by a court of
competent jurisdiction.” Bryson, 268 F. Supp. 2d at 59.
Here, plaintiff argues that his CPO was invalid because the
D.C. Superior Court lacked subject matter jurisdiction to
issue it. (Opp. at 11.) This argument was considered and
rejected by the D.C. Court of Appeals. (See CPO Appellate
Op. at 1.) Plaintiff does not, and could not, assert that
the D.C. Court of Appeals’ judgment was invalid or that the
CPO extension was invalid. Thus, collateral estoppel’s
“valid judgment” requirement is satisfied.

D. Essential to the Judgment

Collateral estoppel’s final requirement “serves to prevent
preclusion based on mere dictum or other portions of the
judgment which were not necessary to the judgment.”
Bryson, 268 F. Supp. at 60. Here, the record clearly
reflects, and plaintiff does not challenge, that Judge
Leibovitz’s findings regarding the veracity of defendant’s
allegations were essential to her decision to issue the
CPO, and to the D.C. Court of Appeals’ affirmance of her
decision. Similarly, Judge Rigsby’s findings that plaintiff
had received notice of the CPO extension hearing and that
plaintiff had committed the harassment alleged by defendant
were essential to the CPO extension decision.

Thus, because the facts of this case satisfy all of the
necessary elements of collateral estoppel, Counts II-VIII
of plaintiff’s amended complaint will be dismissed pursuant
to Rule 12(b)(6).

III. Additional Reasons for Dismissing Counts II-VIII

Even assuming arguendo that collateral estoppel did not
apply, the Court would still Page 16 dismiss Counts
II-VIII of the amended complaint pursuant to Rule 12(b)(6).

A. Counts II and III: Negligent and Intentional Infliction
of Emotional Distress

Defendant argues that plaintiff’s claims for negligent and
intentional infliction of emotional distress are time
barred. “A defendant may raise the affirmative defense of
statute of limitations via a Rule 12(b)(6) motion when the
facts that give rise to the defense are clear from the face
of the complaint.” DePippo v. Chertoff, 453 F. Supp. 2d 30,
33 (D.D.C. 2006). Dismissal is warranted when “`no
reasonable person could disagree on the date’ on which the
cause of action accrued” and “the complaint on its face is
conclusively time-barred.” Id.

Because D.C. Code § 12-301(4) does not specifically
mention either negligent or intentional infliction of
emotional distress, these two claims are ordinarily subject
to the three-year limitations period of D.C. Code §
12-301(8). E.g., Parker v. Grand Hyatt Hotel, 124 F. Supp.
2d 79, 87 (D.D.C. 2000). However, if claims of negligent or
intentional infliction of emotional distress are
“intertwined” with a tort specifically mentioned by D.C.
Code § 12-301(4), such claims are subject to a
one-year limitations period. Parker, 124 F. Supp. 2d at 87;
see Hawkins v. Greenfield, 797 F. Supp. 30, 34 (D.D.C.
1992) (applying this rule to a claim for negligent
infliction of emotional distress); Saunders v. Nemati, 580
A.2d 660, 665 (D.C. 1990) (stating this rule for
intentional infliction of emotional distress claims).

Here, it is clear from plaintiff’s factual allegations that
the basis for his claims of negligent and intentional
infliction of emotional distress are his allegations that
defendant falsely accused him of stalking behavior with the
intent to have him arrested and prosecuted. For example, in
support of Count II for negligent infliction of emotional
distress, plaintiff alleges that “[o]n or about June 16,
2003, [plaintiff] was arrested in California based solely
upon allegations Page 17 made by [defendant] and he was
subsequently incarcerated until on or about November 7,
2003 for a myriad of conduct alleged by [defendant]” (Am.
Cmpl. ¶ 58); that “[plaintiff] was arrested solely
upon allegations made by [plaintiff]” (id. ¶ 60); and
that “[d]efendant Johnson negligently made false or
perjured statements to the police, the USAO, and or the
Superior Court, thereby causing [plaintiff] grave injury.”
(Id. ¶ 64.) Similarly, in support of Count III for
intentional infliction of emotional distress, plaintiff
states: “Plaintiff is informed and believes that
[defendant’s] conduct in fabricating criminal allegations
was extreme, and outrageous and done for the purposes of
causing [plaintiff] to be illegally arrested and detained
and to `ruin’ his life and cause him distress.” (Id.
¶ 73.) Because none of plaintiff’s other allegations
could independently support his emotional distress claims,
his emotional distress claims are intertwined with the tort
of malicious prosecution.[fn9] See, e.g., Scales v. George
Washington Univ., No. 89-0796, 1991 WL 257975, at *5
(D.D.C. Nov. 18, 1991) (characterizing an intentional
infliction of emotional distress claim as intertwined with a
D.C. Human Rights Act claim when “[n]either [the]
plaintiff’s complaint nor her other pleadings allege[d]
facts or proffer[ed] evidence that [the] defendant
intentionally caused her emotional distress by conduct
`independent’ of the alleged violations of Title VII and
section 1981, and ostensibly the D.C. Human Rights Act.”).
Consequently, plaintiff’s emotional distress claims are
time barred if the limitations period for malicious
prosecution expired before plaintiff instituted the present
action. See, e.g., id. (dismissing the plaintiff’s
intentional infliction of emotional distress claim as time
barred under the one-year statute of limitations applicable
to claims under the D.C. Human Rights Act when Page 18
“the last discriminatory act [that the] plaintiff allege[d]
occurred in November of 1987 . . . and the complaint was
filed in March of 1989, sixteen months later”).

“According to D.C. Code § 12-301(4), malicious
prosecution falls in the category of torts specified as
having a one-year statute of limitations.” Parker, 124 F.
Supp. 2d at 87; see D.C. Code § 12-301(4) (2001)
(listing malicious prosecution among the torts with a
one-year statute of limitations). “[T]he statute of
limitations applicable to a claim for malicious prosecution
begins to run when the underlying action against a
plaintiff terminates. . . .” Parker, 124 F. Supp. 2d at 87.
Here, plaintiff was acquitted of the criminal charge
resulting from defendant’s allegedly false allegations on
October 27, 2003. (CPO Op. at 1.) Plaintiff did not file
his original complaint in this action until June 13, 2005
— over seventeen months later. Thus, even assuming
plaintiff’s amended complaint relates back to his original
complaint, his claims for negligent and intentional
infliction of emotional distress are time barred.[fn10]
Page 19

B. Counts IV and V: Abuse of Process

“The essence of the tort of abuse of process is the use of
the legal system `to accomplish some end which is without
the regular purview of the process, or which compels the
party against whom it is used to do some collateral thing
which he could not legally and regularly be required to
do.'” Scott v. District of Columbia, 101 F.3d 748, 755
(D.D.C. 1997) (quoting Bown v. Hamilton, 601 A.2d 1074,
1079 (D.C. 1992)). There is no abuse of process when,
although a person “acts spitefully, maliciously, or with an
ulterior motive in instituting a legal proceeding,” the
proceeding in question is also used for its intended
purpose. Id.

Plaintiff claims that defendant is liable for abuse of
process because she sought the CPO and its extension “to
accomplish ends outside the regular purview of the
process,” including deterring him from filing the instant
suit. (Am. Cmpl. ¶ 81; Opp. at 17-18.) However,
plaintiff also acknowledges that defendant sought the CPO
in part to compel him to obtain psychiatric and substance
abuse counseling. (Id. at 18; see Am. Cmpl. ¶¶
84, 93.) As the D.C. Court of Appeals held in denying
plaintiff’s appeal from the CPO, compelling plaintiff to
undergo such counseling was an entirely proper use of the
CPO process. (CPO Appellate Op. at 3.) Accordingly, even
assuming arguendo that defendant sought the CPO and its
extension partly out of a dislike for plaintiff and a
desire to harm him, plaintiff has failed to state a claim
for abuse of process. See Scott, 101 F.3d at 755 (“[T]here
is no action for abuse of process when the process is used
for the purpose for which it is intended, but there is an
incidental motive of spite or an ulterior purpose of
benefit to the defendant. Thus, the entirely justified
prosecution of another on a criminal Page 20 charge does
not become abuse of process merely because the instigator
dislikes the accused and enjoys doing him harm. . . .”
(alterations in original) (quoting Restatement (Second) of
Torts § 682 cmt. b (1977))).

C. Count VI: False Reporting of a Crime

Plaintiff seeks to hold defendant civilly liable for false
reporting of a crime in violation of D.C. Code §
5-117.05. That statute, however, defines a criminal offense
and does not create a private right of action. See id.
(describing a crime punishable by thirty days’ imprisonment
or a maximum fine of three hundred dollars). Accordingly,
Count VI fails to state a claim on which relief can be

D. Counts VII: Perjury

Plaintiff alleges that defendant gave perjured statements
to the D.C. Superior Court and the U.S. District Court for
the Eastern District of Virginia for which he claims she is
civilly liable. (See Am. Cmpl ¶¶ 102-19.)
However, “[u]nder District of Columbia law . . . the
judicial testimony of witnesses is absolutely privileged.”
Hinton v. Shaw Pittman Potts & Trowbridge, 257 F. Supp. 2d
96, 99 (D.D.C. 2003); see also Bragdon v. Malone, 425 F.
Supp. 2d 1, 3-4 (D.D.C. 2006) (“The absolute immunity that
protects judges and prosecutors in the performance of their
functions during the judicial phase of a case also cloaks
witnesses testifying during trial.”); 70 C.J.S. Perjury
§ 4 (2005) (“In the absence of statute, no action
generally lies to recover damages caused by perjury. . .
.”); cf. D.C. Code § 22-2402 (2001) (making perjury
a criminal offense). Thus, Count VII fails to state a claim
on which relief can be granted.

E. Count VIII: Invasion of Privacy

Plaintiff claims that defendant invaded his privacy by
“defam[ing] his character through Page 21 her false and
malicious accusations of criminal wrongdoing and her
efforts to obtain unwarranted injunctions.” (Am. Cmpl.
¶ 115.) As already explained, witnesses who testify
at trial are immune from civil suits based on their
testimony. E.g., Bragdon, 425 F. Supp. 2d at 3-4. Here,
plaintiff has stated that “[e]ach of [defendant’s] criminal
and civil allegations” forming the basis for his invasion
of privacy claim “were made in a public forum before the
Superior Court.” (Am. Cmpl. ¶ 116 (emphasis added).)
Thus, like Counts II-VII, Count VIII fails to state a claim
upon which relief can be granted.

IV. Count I Cannot Be Decided upon a Motion to Dismiss

The sole claim that does not involve previously decided
issues is plaintiff’s claim that defendant violated the
FCRA. (See Am. Cmpl. ¶¶ 44-51.) Specifically,
plaintiff alleges that in April 2004 defendant “under false
pretenses, knowingly, and without a permissible purpose
obtained or caused to be obtained a consumer report
containing private information about [plaintiff] from a
credit reporting agency.” (Id. ¶ 46.) He further
alleges that plaintiff acted “with a network of various
colleagues at Wells Fargo,” and that she “[hid] her
wrongful actions by couching them as legitimate Wells Fargo
financial inquiries.” (Id. ¶ 47.)

Defendant argues that it is “entirely possible” that
plaintiff’s FCRA claim is barred by the statute of
limitations. (Mot. to Dismiss at 11.) An FCRA violation is
actionable “not later than the earlier of[] (1) 2 years
after the date of discovery by the plaintiff . . .; or (2)
5 years after the date on which the violation . . .
occurs.” 15 U.S.C. § 1681p. Here, plaintiff’s FCRA
claim does not relate back to his original complaint, and
his amended complaint was not filed until September 20,
2006. Consequently, if plaintiff discovered the alleged
violation immediately upon its supposed occurrence in April
2004, plaintiff’s FCRA complaint would be time barred. Page
22 However, plaintiff asserts that he did not discover the
alleged violation until 2006. (Opp. at 16.) Thus, at least
on the record before the Court at this time, plaintiff’s
FCRA claim cannot be dismissed as time barred.

In addition, although defendant correctly argues that
plaintiff’s amended complaint provides little information
about defendant’s alleged conduct and nowhere identifies
what portion of the FCRA defendant supposedly violated,
plaintiff need not allege every element of his claim or
plead detailed facts to survive a motion to dismiss.[fn11]
See, e.g., Sparrow v. United Airlines, Inc., 216 F.3d 1111,
1114-15 (D.C. Cir. 2000) (citing Conley v. Gibson, 355 U.S.
41, 45-48 (1957)). Although plaintiff’s claim that
defendant accessed his credit report in violation of the
FCRA may well be resolvable upon a motion for summary
judgment, such a determination at the present stage would
be premature. Thus, Count I is the sole claim that survives
defendant’s motion to dismiss.


For the foregoing reasons, defendant’s motion to dismiss
will be granted in part and denied in part.

[fn1] Defendant also moves to strike plaintiff’s
“Surrebuttal to Defendant’s Reply to [Plaintiff’s]
Opposition to Motion to Dismiss” and portions of
plaintiff’s amended complaint. Because none of the
arguments that plaintiff raises in his surrebuttal affects
the outcome of defendant’s motion to dismiss, the Court
will deny as moot defendant’s motion to strike the
surrebuttal. Similarly, although portions of plaintiff’s
pro se amended complaint may be irrelevant, demonstrably
false, or scandalous, the allegations as to which defendant
takes issue are irrelevant given the Court’s determination
that only the FCRA claim survives. Accordingly, defendant’s
motion to strike portions of the amended complaint will be

[fn2] The parties ultimately settled the prior civil suit,
Rogers v. Johnson-Norman, No. 01-01924 (E.D. Va.).

[fn3] In summarizing the relevant proceedings, several of
the hearing transcripts and opinions that defendant has
filed as exhibits are useful aids. Accordingly, the Court
takes judicial notice of defendant’s exhibits A, B, E, and
L — all of which are public records. See, e.g.,
Covad Commc’ns v. Bell Atl. Corp., 407 F.3d 1220, 1222
(D.C. Cir. 2005) (treating opinions of this Court and the
Federal Circuit as judicially noticeable public records).
Consideration of such documents does not require the Court
to treat defendant’s motion to dismiss as a motion for
summary judgment. See, e.g., id. (stating that considering
opinions from other courts is appropriate upon a motion to
dismiss); Equal Employment Opportunity Comm’n v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997) (“In determining whether a complaint fails to state a
claim, we may consider only the facts alleged in the
complaint, any documents either attached to or incorporated
in the complaint and matters of which we may take judicial

[fn4] Moreover, the court remarked that, although plaintiff
could have called defendant as an adverse witness, he had
declined to do so. (CPO Appellate Op. at 2.)

[fn5] Although the amended complaint also references false
statements that defendant allegedly made “in 2002 and
beyond” (e.g., Am. Cmpl. ¶ 57), plaintiff concedes
that these statements are not at issue here and discusses
them only as “background information.” (Opp. at 8.)
Moreover, any claims based on defendant’s allegedly false
statements prior to January 2003 are barred by the
settlement agreement that the parties entered into in
plaintiff’s previous civil suit against defendant in the
Eastern District of Virginia. (See Def.’s Ex. J at 1.)
Plaintiff acknowledges the existence of the 2003 settlement
agreement, and he does not dispute its validity. (E.g.,
Surrebuttal at 7-8.) Plaintiff similarly does not dispute
that the Court may properly consider the settlement
agreement upon defendant’s motion to dismiss. See, e.g.,
Jenisio v. Ozark Airlines, Inc., Ret. Plan, 187 F.3d 970,
972 n. 3 (8th Cir. 1999) (explaining that a court may
consider documents outside the pleadings on a motion to
dismiss when “the plaintiffs’ claims are based solely on
the interpretation of the documents and the parties do not
dispute the actual contents of the documents”); Obrecht v.
Electrolux Home Prods., Inc., No. 04-3089, 2005 WL 578477,
at *2 (N.D. Iowa Mar. 9, 2005) (“Thus, as the parties do
not object to the language of the settlement agreement, but
only to the construction and interpretation of that
language, this court may properly consider the settlement
agreement on [defendant’s] motion to dismiss pursuant to
Rule 12(b)(6).”).

[fn6] The amended complaint also references “numerous
instances in 2002” on which defendant made allegedly false
police reports. (Am. Cmpl. ¶ 99.) As already noted,
however, plaintiff mentions pre-2003 events only as
background and, in any event, claims based on events prior
to 2003 are barred by the parties’ 2003 settlement
agreement. See supra note 5.

[fn7] Plaintiff also alleges that defendant made false
statements to Judge Gerald Bruce Lee during the course of
plaintiff’s previous civil suit against defendant in the
Eastern District of Virginia. (See Am. Cmpl. ¶ 103.)
The parties’ 2003 settlement agreement forecloses
consideration of this allegation as well.

[fn8] As the D.C. Court of Appeals also observed, Judge
Leibovitz properly took notice of defendant’s testimony
from the criminal trial, especially when plaintiff’s
counsel did not object and had extensively cross-examined
defendant during the criminal case. (CPO Appellate Op. at

[fn9] In fact, plaintiff’s original complaint made similar
allegations in support of a malicious prosecution claim that
he has since abandoned in his amended complaint. (See Cmpl
¶¶ 242, 246, 247, 249.)

[fn10] Defendant makes a similar argument as to plaintiff’s
claim for invasion of privacy (Count VIII). The Court
agrees with defendant that claims for invasion of privacy
are subject to the one-year statute of limitations set
forth in D.C. Code § 12-301(4). See, e.g., Grunseth
v. Marriott Corp., 872 F. Supp. 1069, 1074-75 (D.D.C. 1995)
(applying the one-year limitations period to an invasion of
privacy claim alleging “public disclosure of private
facts”); Doe v. Se. Univ., 732 F. Supp. 7, 8 (D.D.C. 1990)
(“Invasion of privacy is essentially a defamation type
action. Section 12-301 of the D.C. Code establishes a
one-year statute of limitations for libel, slander,
assault, and other similar intentional torts. The Court
finds this one-year statute of limitations is also
applicable to invasion of privacy actions.” (citations
omitted)), appeal dismissed, 927 F.2d 1257 (D.C. Cir.
1991); see also Nichols v. Moore, 334 F. Supp. 2d 944,
948-49 (E.D. Mich. 2004) (explaining why a statute of
limitations for libel and defamation should apply to false
light invasion of privacy claims). However, defendant
concedes that plaintiff’s invasion of privacy claim may
have accrued as late as October 2004 — less than one
year before plaintiff filed his original complaint in June
2005. (Mot. to Dismiss at 16.) Therefore, the invasion of
privacy claim is not time barred if the amended complaint
relates back to the original complaint.

Defendant argues that the amended complaint does not
relate back and that, accordingly, in addition to
plaintiff’s invasion of privacy claim, one of his abuse of
process claims (Count IV), and portions of his perjury
claim (Count VII) are time barred. The Court need not reach
these arguments, however, because the original complaint at
least arguably relates back and because Counts IV, VII, and
VIII will be dismissed based on a variety of other grounds.

[fn11] In addition, although defendant has moved the Court
to order a more definite statement if Count I survives the
motion to dismiss, plaintiff’s amended complaint is not so
vague as to warrant such an order in view of the
requirements of Rule 8(a) of the Federal Rules of Civil