Citations
- 249 F. Supp. 3d 149
Full opinion text
MEMORANDUM OPINION
REGGIE B. WALTON, United States District Judge
The plaintiff, a former student-athlete at American University (the “University”), brings this civil action against the defendants, the United States of America (the “Government”), the National Collegiate Athletic Association (the “NCAA”), the Patriot League, the University, the Maryland Sports Medicine Center (the' “Medicine Center”), David L. Higgins, M.D. P.C. (the “Higgins Practice”), and David L. Higgins, M.D. (“Dr. Higgins”), alleging various causes of action stemming from the defendants’ alleged failure to provide her with proper medical care after she allegedly sustained a head injury during a field hockey game in September 2011. See Notice of Removal of a Civil Action (“Removal Notice”), Exhibit (“Ex.”) 5 (Amended Complaint (“Am. Compl.”)) ¶¶ 98-136. Six motions are currently pending before the Court: (1) Defendant [ ] Patriot League’s Preliminary Motion to Dismiss (“Patriot League’s Dismiss Mot.”), ECF No. 9; (2) Defendant [ ] Patriot League’s Request for Hearing on Its Preliminary Motion to Dismiss (“Patriot’s League’s Hearing Request”), ECF No. 10; (3) defendant [] American University’s Preliminary Motion to Dismiss (“University’s Mot.”), ECF No. 11; (4) Defendant [] National Collegiate Athletic Association’s Motion to Dismiss the Amended Complaint (“NCAA’s Mot.”), ECF No. 17; (5) the Government’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (“Gov’t’s Mot.”), ECF No. 26; and (6) Defendants Maryland Sports Medicine Center, David L. Higgins, M.D. and David L. Higgins, M.D. P.C.’s Partial Motion to Dismiss, ECF No. 31. Upon careful consideration of the parties’ submissions, the Court concludes for the reasons that follow that it must deny the Government’s motion to dismiss or, in the alternative, its motion for summary judgment, deny in part and grant in part both the NCAA’s and the University’s motions to dismiss, grant the Patriot League’s motion to dismiss, deny the Patriot League’s hearing request as moot, and grant the three medical provider defendants’ partial motion to dismiss.
I. BACKGROUND
Much of the relevant factual background has been previously set forth by the Court in an earlier Order. See Removal Notice, Ex. 1 (Order dated December 10, 2016 (“Order”)), Part I.B. In brief,
[i]h 2011, the plaintiff was a junior-year student athlete at [the] University here in Washington, D.C. She played field hockey for the [U]niversity, and in September of that year, the plaintiff asserts that she Vas hit in the head during a field hockey game between [the] University and Richmond University[.]’ Subsequent to that hit, she allegedly began experiencing symptoms of a concussion, but continued participating in field hockey practices and games as she was [not] advised to sit out [practices and games] while her symptoms persisted. According to the plaintiff, this failure has caused her a variety of harms, including monetary damages.
Id. (internal citations and footnote omitted). “On March 19, 2012, [the plaintiff] presented to MedStar National Rehabilitation with her chief complaint being of a concussion, ... [and] on April 30,2012, her diagnosis was confirmed.” Id., Ex. 5 (Am. Compl.) ¶¶ 119-20.
Between August and October 2014, the plaintiff “filed several actions in the Superior Court of the District of Columbia (“Superior Court”), which were consolidated against the [NCAA], the Patriot League, [the] University, the [ ] Medicine Center, David L. Higgins, M.D., P.C., David L. Higgins, M.D., and Aaron Williams, D.O.” Id., Ex. 1 (Order) at 1. In March 2015, the Government, pursuant to the Westfall Act, 28 U.S.C. § 2679 (2012), substituted itself for Dr. Williams as a defendant and removed the consolidated case to this Court. See id., Ex. 1 (Order) at 1-2. Thereafter, in December 2015, this Court dismissed the plaintiffs claims against the Government because the “the plaintiff concede[d] that she [was] still pursuing her administrative remedies,” id, Ex. 1 (Order) at 11 (internal citation and quotation marks omitted), which precluded her at that time from bringing suit against the Government. This Court also concluded that it “no longer ha[d] jurisdiction over [the] matter following the dismissal of the [Government]” and remanded the case to the Superior Court. Id., Ex. 1 (Order) at 11-12.
After the case was remanded to the Superior Court, the plaintiff moved both to amend her Complaint and to remove the case back to this Court, a motion the Superior Court granted only with respect to the plaintiffs request to amend her Complaint. See id., Ex. 3 (Order dated Feb. 19, 2016) at 1. On February 23, 2016, the plaintiff amended her Complaint, and on the following day, removed this case back to this Court. See id. at 4. Shortly thereafter, the defendants filed their motions to dismiss the plaintiff’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), which the Court now addresses.
II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) tests whether the complaint properly “state[s] a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 8(a) requires only that a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although “detailed factual allegations” are not required, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)), a plaintiff must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” id. Rather, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id. A complaint alleging “facts [which] are ‘merely consistent with’ a defendant’s liability ... ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
“In evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.’ ” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). However, conclusory allegations are not entitled to an assumption of truth, and even those allegations pleaded with factual support need only be accepted insofar as “they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
III. ANALYSIS
A. The Plaintiffs Claims Against the Government
As an initial matter, the Government contends that Counts IV and VIII of the plaintiff’s Amended Complaint, which assert claims of negligent infliction of emotional distress and medical malpractice against the Government, “should be dismissed with prejudice” because “the [p]laintiff s claim[s are] time-barred by the [Federal Tort Claims Act (‘FTCA’) ]’s two-year statute of limitations[,]” and because “under the borrowed servant doctrine, any alleged tort committed by Dr. Williams, attaches to the borrower (he., special employer), the Medical Practice of David L. Higgins ... and not to the general master (he., general employer), the [Government].” Gov’t’s Mem. at 1-2. The Court will address each of these arguments in turn.
1. The Federal Tort Claims Act’s Two-Year Statute of Limitations
The Government argues that the plaintiffs claims against it are time-barred because she failed to “file her claim with the appropriate agency” within two years after the “[p]laintiff s claim accrued ... [in] March 2012 when she was diagnosed with [post-concussive syndrome],” as the FTCA mandates. Gov’t’s Mem. at 10-11. In response, the plaintiff contends that the statute of limitations was equitably tolled and “did not begin to run until November 7, 2013, at the earliest,” when “counsel for [defendant Higgins contacted [the plaintiffs counsel and first indicated that Dr. Williams was a military fellow at the time he rendered treatment.” Pl.’s Gov’t Opp’n at 11.
“Under the doctrine of sovereign immunity, the United States is immune from suit unless Congress has expressly waived the defense of sovereign immunity by statute.” Carter-El v. D.C. Dep’t of Corr., 893 F.Supp.2d 243, 246 (D.D.C. 2012) (Walton, J.) (citing United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.”)). “Absent a waiver, sovereign immunity shields the Federal Government ... from suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). “The FTCA is an example of Congress’ waiver of sovereign immunity. Under the FTCA, the United States consents to suit in federal district court for certain, but not all, tort claims.” Carter-El, 893 F.Supp.2d at 246.
“The date the plaintiffs administrative claim was received is important because a party asserting jurisdiction under the FTCA must satisfy administrative exhaustion requirements by ‘presenting] the claim to the appropriate federal agency.’” Olaniyi v. District of Columbia, 763 F.Supp.2d 70, 87 (D.D.C. 2011) (Walton, J.) (quoting 28 U.S.C. § 2675(a) (2006)). “In fact, the United States Code makes clear that a ‘tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues,’ id. (citing 28 U.S.C. § 2401(b)), and the associated regulations explain that a claim is deemed presented when it is received by the agency,” id. (citing 28 C.F.R. §§ 14.2(a), 14.2(b)(1) (2005)). ’ “Under the FTCA, a claim accrues ‘by the time a plaintiff has discovered both h[er] injury and its cause.’ ” Id. 87-88 (quoting Sexton v. United States, 832 F.2d 629, 633 (D.C. Cir. 1987)); see also United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (“A plaintiff ... armed with the facts about the harm done to h[er], can protect [herself] by seeking advice in the medical and' legal community. To excuse h[er] from promptly doing so by postponing the accrual of h[er] claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.”).
Moreover, “[t]he time limits in the FTCA are just time limits, nothing more. Even though they govern litigation against the Government, a court can toll them on equitable grounds.” United States v. Kwai Fun Wong, — U.S. —, 135 S.Ct. 1625, 1633, 191 L.Ed.2d 533 (2015). However, such relief applies “only sparingly” and generally is not available to a plaintiff who has “failed to exercise due diligence in preserving [her] legal rights” or has demonstrated only “a garden variety of excusable neglect.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); see also Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (noting that a “[plaintiff] is ‘entitled to equitable tolling’ only if [she] shows ‘(1) that [she] has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way’ and prevented timely filing” (internal citation omitted)). In this Circuit, courts can' permit “equitable tolling, but ‘only in extraordinary and carefully circumscribed circumstances,’ ” Norman v. United States, 467 F.3d 773, 776 (D.C. Cir. 2006) (quoting Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998)), such as where ‘despite all due diligence [a plaintiff] is unable to obtain vital information bearing on the existence of her claim,’ ” id. (quoting Smith-Haynie, 155 F.3d at 579) (alteration in original). “At a minimum, due diligence requires reasonable efforts to learn the employment status of the defendant.” Id. “Further, due diligence is a fact-specific judgment in each case as to what the court expects a reasonable plaintiff to do in uncovering the elements of [her] claim.” United States v. Intrados/Intern. Mgmt. Grp., 265 F.Supp.2d 1, 11 (D.D.C. 2002) (citation omitted).
Furthermore, “[b]ecause statute of limitations issues often depend on contested questions of fact, dismissal is appropriate only if the complaint on its face is conclusively time-barred.” Bregman v. Perles, 747 F.3d 873, 875 (D.C. Cir. 2014). And, “courts should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). In .other words,- “a defendant is entitled to succeed on a Rule 12(b)(6) motion to dismiss brought on statute[ ] of limitations grounds only if the facts that give rise to this affirmative defense are clear on the face of the plaintiffs complaint.” Lattisaw v. District of Columbia, 118 F.Supp.3d 142, 153 (D.D.C. 2015) (citing Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998)); accord Campbell v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 130 F.Supp.3d 236, 254 (D.D.C. 2015).
There is no dispute that the plaintiff did not “present[] [her claim] in writing to the appropriate Federal agency within two years after [her] claim accrue[d],” 28 U.S.C. § 2401(b), which was in March 2012, at the latest, when she was diagnosed with post-concussive syndrome, see Gov’t’s Mem. at 10. Therefore, because the plaintiff did not provide written notice of her claim until December 15, 2014, see Pl.’s Gov’t Opp’n, Exhibit (“Ex.”) 3 (Affidavit of Service), the FTCA’s two-year statute of limitations period seemingly bars the plaintiffs tort claims against the Government. However, the Court cannot find from the face of the Complaint that the plaintiff failed to exercise reasonable due diligence to learn Dr. Williams’ employment status, and because the plaintiff has shown that extraordinary circumstances prevented her from filing her claims against the government before she did, this Court finds that equitable tolling of the FTCA’s two-year statute of limitations period is warranted.
As noted above, the plaintiff contends that the FCTA’s two-year statute of limitations should be equitably tolled until approximately November 7, 2013,. when she learned from defendant Higgins’ counsel that Dr. Williams was employed as a military fellow when he provided medical treatment to her at the University. See Pl.’s Gov’t Opp’n at 11. The plaintiff contends that she “exercise[d] reasonable diligence in pursuing this matter by first sending a notice of representation letter to [the] University with a request to have both parties meet and discuss the matter.” Pl.’s Gov’t Opp’n at 12; see also id., Ex. 9. She also “went out and retained experts in a highly complicated medical malpractice action, and underwent the timely and complex notice provisions required in the District of Columbia to pursue a medical malpractice claim.” Pl.’s Gov’t Opp’n at 12-13. Specific to Dr. Williams’ employment status, the plaintiff states that she “had absolutely no knowledge that Dr. Williams was a Federal Employee, nor any rational basis to believe that when she went and sought treatment from her team doctor at the [] University that she was actually being treated by [a Government employee].” Id. at 13. In addition, the plaintiff notes that “out of an abundance of caution in order to act with all due diligence, [she] served the Department of Defense and the Department of Health and Human Services with a Form 95 on December 15, 2014,” to provide written notice of her claims, id. at 2, despite the uncertainty as to whether the Government would provide Dr. Williams with the Westfall certification, see id., Ex. 5 (Dr. Williams Petition for Certification), Ex. G (Letter from counsel for Dr. Williams sent to Litigation Division of the United States Army Legal Services Agency dated December 19, 2014) at 1 (noting that Dr. Williams and the Government had prior discussions regarding whether Dr. Williams was acting within the scope of his employment as a federal employee while treating the plaintiff). Therefore, the Court finds that the plaintiff acted with reasonable due diligence “in preserving [her] legal rights,” Irwin, 498 U.S. at 96, 111 S.Ct. 453, in regards to filing a lawsuit against the Government.
In arguing that the plaintiff did not exercise reasonable due diligence, the Government cites as support for its position Norman v. United States, 467 F.3d 773 (D.C. Cir. 2006), M.J. ex rel. Jarvis v. Georgetown Univ. Med. Ctr., 962 F.Supp.2d 3 (D.D.C. 2013), aff'd as modified, 2014 WL 1378274 (D.C. Cir. Mar. 25, 2014), and Espinosa v. United States, No. 09-2399 (RMU), 2011 WL 710170, at *1 (D.D.C. Feb. 22, 2011), where the courts in each case declined to equitably toll the FTCA’s two-year statute of limitations because the plaintiffs failed to act with reasonable due diligence. The Court finds, however, the facts in those cases distinguishable from the facts in this case. In Norman, the plaintiff, who sustained injuries in an automobile accident after being struck by the driver of a rental car who was a federal employee acting within the scope of his employment, 467 F.3d at 773-74, argued that “he exercised due diligence because immediately following the accident he filed a worker’s compensation claim with his employer and a liability claim with USAA,” id. at 776, the driver’s personal “insurance provider,” id. at 774. Although the plaintiff failed to present this documentation to the district court, the Circuit, in reviewing the documentation, noted that “[n]either the worker’s compensation claim nor the liability claim indicated that the plaintiff] or his attorney made any efforts prior to the expiration of the FTCA’s two-year statute of limitations-much less-reasonably diligent efforts-to discover [the driver’s] employer.” Id at 776.
Similarly, in M.J. ex rel. Jarvis, the plaintiff, fourteen years after the birth of her son, brought a medical malpractice claim on behalf of her son, alleging that he suffered from physical and mental disabilities attributable to the timing and method of his delivery. 962 F.Supp.2d at 4-5. The district court rejected the plaintiffs argument that the statute of limitations should be equitably tolled because the plaintiff failed to identify any efforts she had taken to learn of the doctor’s employer. See id at 9. And, in Espinosa, the plaintiff, who suffered spinal injuries in a car accident after being struck by “an active duty Army solider operating a government-owned van on official Army business,” 2011 WL 710170, at *1, also argued that “the FTCA statute of limitations should be [equitably] tolled because he filed his complaint prior to the expiration of [the] District of Columbia’s personal injury statute of limitations, having not yet received the Westfall certification,” id at *2. The district court, however, noted that, “[o]ther than retaining counsel in the months after the accident, the plaintiff made no effort to discover [the driver’s] employment status or to file suit within the two-year limitations period,” in addition to failing to “allege[] or presentí ] any evidence of fraudulent concealment on the part of the agency that might provide a basis for equitable tolling.” Id. at *3.
As the Court noted earlier, the plaintiff in this case exercised reasonable due diligence in pursuing her legal rights. She attempted to discuss and potentially resolve this matter with the University, retained medical experts, conducted research through the efforts of her attorneys, and complied with timely jurisdictional requirements in pursuing certain claims. She also reasonably believed that Dr. Williams was an employee’ of the University, as he worked at the University as a medical trainer for-the field hockey team. See PL’s Gov’t Opp’n at 11. Thus, unlike the, plain-, tiffs in the cases cited by the Government, it cannot be said that the plaintiff here failed to employ reasonable efforts to identify Dr. Williams’ employer.
Moreover, the Court finds that extraordinary circumstances require equitable tolling of the FTCA’s two-year statute of limitations. As the plaintiff notes, the contract between defendant Higgins' and the Government, which governs the employment terms for Dr. Williams as a trainee and member of “a fellowship program under the supervision of defendant Higgins,” Pl.’s Gov’t Opp’n at 1, prohibits individuals “being treated by the trainees [from] be[ing] made aware, of [the] relationship” between defendant Higgins and the Government, thereby “deliberate[ly] concealing] [a] material fact[ ] related to the involvement of the [Government].” Pl.’s Gov’t Opp’n at 10; see also Gov’t’s Mot., Ex. 2 (Memorandum of Understanding Between the Medical Practice of David L. Higgins, M.D. and the National Capital Consortium (the “Agreement”)) ¶ 12 (“Neither party will use the name of the other party in any of its publicity or advertising media. The existence and scope of the program, however, may be known to [the] trainees.”). The plaintiff contends that neither this contract or any other
proof or’evidence of Dr. Williams’ employment’ ,.. was ever provided to [the p]laintiff or [her] counsel • until Dr. Williams filed a Praecipe in the underlying Superior Court Action in March of 2015[,] in which he attached a copy of his Petition for Judicial Findings and Certification of Scope of Officer or Employ-rrient in Case l:15-MC-00283 in this Court.
Pl.’s Gov’t Opp’n at 11-12. Therefore, despite thé- plaintiffs exercise of due diligence, she would have been “unable tb obtain [the] vital information,” Norman, 467 F.3d at 776, about Dr, Williams’ employment status because that information was concealed and not made available until Dr. Williams legally sought to force the Government to provide him with a Westfall certification. .And, until the Government provided the Westfall certification, it had taken the position that Dr. Williams was not acting within the scope of his federal employment, but rather as an employee of the Medicine Center hired by the University, the same belief the plaintiff reasonably held. Accordingly, because the Court cannot find that the plaintiff failed to exercise-due diligence in pursuing her legal rights, and as a result’ of extraordinary circumstances that existed in this case, the Court finds it appropriate to equitably toll the FCTA’s two-year statute of limitations until November 7, 2013, when the plaintiff learned that Dr. Williams was a military fellow. Therefore, because the plaintiff filed her administrative claim within two years after learning of Dr. Williams’ status as a military fellow, the Court must reject the Government’s position that the plaintiffs claims against it are time-barred.
2. Borrowed Servant Doctrine
The Government also argues that the “[plaintiffs claims against [it] fail under the borrowed servant doctrine” because “at all times relevant to the litigation, [Dr.] Williams Vas an agent, servant, and/or employee of ,.. [the] University, Higgins, Higgins, P.C. and [the Medicine] Center,’ ” Gov’t’s Mem. at 15 (quoting Removal Notice, Ex. 5 (Am. Compl.) ¶ 13), and because “the Higgins Practice had the ‘power to control and direct1 [Dr.] Williams in the performance of his'work,” id. The plaintiff contends that issue preclusion estops the Government from asserting the borrowed servant doctrine because
the issue over whether or not [the Government] was liable for the actions of Dr, Williams was actually litigated, [and] determined by a valid final judgment on the merits when the Court issued its previous[] ruling after a full and fair opportunity to litigate the matter where the issue of [the Government’s]’liability for Dr. Williams was essential.
Pl.’s Gov’t Opp’n at 21. In response,- the Government asserts that the “state law defining an individual’s scope of employment (for purposes of Westfall certification) is separate and distinct from the control inquiry and the ultimate issue of employer liability. (for purposes of borrowed servant).” Gov’t’s Reply at 10. Accordingly, the Court must decide (1) whether, after litigating the Westfall certification issues, the Government’s determination that it must be substituted as a defendant for Dr. Williams for Westfall certification purposes bars the Government from denying liability for Dr. Williams’ alleged negligent conduct based on issue preclusion, and if not, (2) whether Dr. Williams is a borrowed servant of the .Higgins Practice, which the Government argues should be solely liable for- Dr. Williams’ alleged negligent conduct.
a. The Applicability of Issue Preclusion
There does not appear to be a case in this Circuit that has addressed the issue of whether the Government, which after substituting itself for an individual in a civil action after determining that the individual acted within the scope of his federal employment for Westfall certification purposes, is precluded from arguing that it is not liable for the individual’s allegedly negligent actions' under the borrowed servant doctrine. As support for its position that the Westfall certification question arid the determination of liability for the allegedly negligent conduct are separate issues, the Government relies on Palmer v. Flaggman, 93 F.3d 196 (5th Cir. 1996), which addressed this issue. The Court finds the reasoning in Palmer instructive.
In Palmer, the Firth Circuit considered whether “a federal employee who acts as the ‘borrowed servant’ of a private employer may simultaneously act within the scope of his federal employment in such a way as to make him immune from suit under the Westfall Act.” 93 F.3d at 197. In assessing this issue, the court noted that it had to determine whether, under Texas state law where the alleged negligence occurred, “the scope of employment inquiry is separable from the control inquiry and the ultimate issue of liability.” Id. at 201. However, the court recognized that “Texas state law on this issue [was] sparse” because
[t]he Westfall Act creates a unique situation in which the parties have an interest in proving that an employee acted within the scope of his or her employment, without regard for the ultimate issue of the employer’s liability [while] the model tort case [in Texas] answers the scope of employment issue only in the context of assigning liability.
Id. And, the “Texas cases involving two ‘employers’ generally resolve only the issue of which employer had ‘control’ over the tortfeasor, and hence the liability through the ‘borrowed servant’ doctrine.” Id. at 201-02. Thus, “Texas courts have not elaborated on whether the tortfeasor was also within the scope of the non-liable defendant’s employment, or whether a tortfeasor is legally able to act simultaneously within the scope of employment of two defendants where only one is ultimately liable.” Id. at 202. Nonetheless, in “reaching] the result [that it] believe[d] the Texas court would be most likely to reach,” id.; see also id. at 202 (“Because Texas courts have not directly addressed this issue, we must decide it as we believe the Texas Supreme Court would have decided it, if confronted with the issue directly.”), the court reasoned (1) that there was “no distinction between simultaneously ‘serving’ two masters, and acting within the ‘scope of employment’ of two employers^]” id at 204, (2) that “a particular action can serve more than one purpose, while still remaining within the scope of employment[;]” id. (“[A]n action may benefit the employee personally, but still fall within the course and scope of his employment, so long as the purpose of the action still benefits the master to- an appreciable extent.” (internal citation omitted)), and (3) that “[t]he borrowed servant inquiry seeme[d] to become relevant only after one determines whether an employee’s actions are within the scope of his general employment[,]” id (noting that “[e]ven if the borrowing master is liable for the acts of the servant, ‘the general employer remains liable if the act fell within the scope of the employee’s general employment’” (internal citation omitted)). Therefore, the court concluded that “nothing in Texas law indicates that the stated test for scope of employment ... also includes an additional element of control over the tortfeasor’s actions. Instead, [it found] that the element of control is relevant only to the separate issue of ultimate liability.” Id. at 205.
Applying these principles here, the Court notes that “District of Columbia [re-spondeat superior] law, which applies in this case, follows the RESTATEMENT (SECOND) OF AGENCY (1958) (“Restatement”) in defining scope of employment.” Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 663 (D.C. Cir. 2006). Under the Restatement:
Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master. [However, c]onduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
Restatement § 228. Consequently, District of Columbia law does not include the additional element of control over the tortfea-sor’s actions in determining the scope of employment. In addition, District of Columbia cases have separately considered the borrowed servant doctrine as a defense to assigning liability for tortious conduct. See Dellums v. Powell, 566 F.2d 216, 220 (D.C. Cir. 1977) (applying the borrowed servant doctrine as a defense to vicarious liability), cert. denied, 438 U.S. 916, 98 S.Ct. 3147, 57 L.Ed.2d 1161 (1978); see also Estate of Carter v. District of Columbia, 903 F.Supp. 165, 167 (D.D.C. 1995) (discussing whether the borrowed servant doctrine transferred liability to the District of Columbia for the actions of United States Park Police engaged in routine patrolling in the District of Columbia). Accordingly, the Court finds “that the element of control is relevant only to the separate issue of ultimate liability,” Palmer, 93 F.3d at 205, and thus, issue preclusion does not apply in this case because the parties have only litigated Dr. Williams’ scope of employment for West-fall certification purposes.
b. Borrowed Servant Status and Liability
“Under the law of agency, ‘a person who is generally the servant of one master [ ] can become the borrowed servant of another.’ ” Chang v. United States, Nos. 02-2010 (EGS), 02-2283 (EGS), 2007 WL 2007335, at *12 (D.D.C. July 10, 2007) (quoting Dellums, 566 F.2d at 220) (alteration in original). “In considering whether an employee’s negligence should be imputed to a special employer, the critical determination is which employer possess the ‘power of control.’” Dower v. Davis, No. 86-2658-OG, 1987 WL 12847, at *5 (D.D.C. July 28, 1987). The Restatement identifies the following factors as relevant to determining the issue of control:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
Restatement § 220(2).
Furthermore, “[i]f the borrowed servant commits a tort while carrying out the bidding of the borrower, vicarious liability for that tort attaches to the borrower and not to the general master.” Dellums, 566 F.2d at 220. “However, ‘[a] person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve the abandonment of service to the other.’ ” Chang, 2007 WL 2007335, at *12 (citing the Restatement § 226); see also Dellums, 566 F.2d at 221 (“[T]here is a presumption that an actor remains in his general employment so long as by the service rendered another, he is performing the business entrusted to him by the general employer.” (citing the Restatement § 227, n.6, cmt. b)). And, if a servant acts within the scope of his employment for both masters, both may “be responsible for an act which is a breach of duty to one or both of them.” Restatement § 226 cmt. a. Moreover, “[w]hether one party is the ‘sole master to whom liability can attach ... is usually a question of fact, generally to be decided by the jury.’ ” Chang, 2007 WL 2007335, at *12 (quoting Dellums, 566 F.2d at 220).
Based on the record currently before the Court, it cannot be said‘that the facts here undisputably prove that the Higgins Practice is solely liable for Dr. Williams’ allegedly negligent conduct. The Government primarily. relies upon the Agreement between the National Capital Consortium (the “Consortium”) and the Higgins Practice to show that Dr. Williams, as a member of the Consortium, was under the control of the Higgins Practice, and therefore, a borrowed servant of the Higgins Practice. See Gov’t’s Mem. at 15. Specifically, the Government notes that the Agreement provides that Dr. Williams, “[w]hile training at the [Higgins] Practice, ,.. [was] under the supervision of [Higgins Practice]’ officials for training purposes and’ [was] subject to, and [was] required to’ abide by, all practicable [Higgins] Practicé rules and regulations.” Gov’t’s Mot., Ex. 2 (Agreement) ¶ 5. Under the Agreement, Dr. Williams was “considered [a] provider[ ] • or member[ ] of the [Higgins] Practice’s workforce while performing duties pursuant to [the A]greement,” id., Ex. 2 (Agreement) ¶ 10, and the Higgins Practice “reserved the right to refuse to accept or to bar [Dr. Williams] from training when it [was] determined that [his] further participation would not be in the [Higgins] Practice’s best interest,” id., Ex. 2 (Agreement) ¶ 9. Additionally, the Agreement stated that because Dr. Williams, “while training at the Practice, [was] under the exclusive control and supervision of the [Higgins] Practice^] ... proceeds from [Dr. Williams’] professional bills [became] the [Higgins] Practice’s exclusive property.” Id., Ex. 2 (Agreement) ¶ 11. Based on these provisions, the Agreement suggests that Dr. Williams was a borrowed servant of the Higgins Practice, and therefore, the Higgins Practice would be liable for tor-tious conduct committed by Dr. Williams while working under the control and 'supervision of the Higgins Practice.
However, the Agreement also provides that the Consortium “requires special clinical training in preparation for board certification of fellows ... in sports medicine,” id., Ex. 2 (Agreement) ¶ 3, and that “[i]t is in the best interest of the Consortium for trainees to use the facilities of the [Higgins] Practice to receive [this] clinical experience,” id., Ex. 2 (Agreement) ¶ 4. Additionally, “the director of the Consortium’s Family Medicine/Sports Medicine Fellowship Program” assisted in the “outlining [of the] specific goals and requirements for [the] clinical rotation” performed, including “the anticipated training, training and supervision standards to be employed, and any other issues required by the Family Medicine/Sports Medicine Fellowship Program Review Committee.” Id., Ex. 2 (Agreement) ¶ 8. The Agreement also suggests that the Consortium prohibited the Higgins Practice from generating professional bills for services rendered by Dr. Williams “to patients who are beneficiaries of the Department of Defense/TriCare.” Id., Ex. 2 (Agreement) ¶ 11. The Consortium further promised to “ensure compliance with all applicable [Higgins] Practice rules and instructions and those of its physicians,” id., Ex. 2 (Agreement) ¶ 27, and it provided secondary liability coverage because, “while performing services pursuant to [the A]greement, Consortium trainees remained] employees of the United States performing duties within the course and scope of their federal employment,” id., Ex. 2 (Agreement) ¶ 32. Consequently, the record also suggests that the Consortium maintained some elements of control of Dr. Williams’ clinical experience at the Higgins Practice and that Dr. Williams was acting within the scope of his duties for both the Higgins Practice and the Consortium. Therefore, because the current record does not clearly attach liability exclusively to the Higgins Practice, the Court must deny the Government’s motion to dismiss, or alternatively for summary- judgment with respect to the plaintiffs claims against it based on the borrowed servant doctrine.
B. The Plaintiffs Claims Against ' the NCAA,
1. The Negligence Claim
In Count I of her Amended Complaint, the plaintiff asserts a negligence claim against the NCAA, alleging that it “was careless and negligent by breaching the duties of care it assumed for the' benefit of [the p]laintiff.” Removal-Notice, Ex. 5 (Am. Compl.) ¶ 142. To state a claim of negligence under District of Columbia law, the plaintiff must establish' that “(1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and (3) the breach of duty proximately -caused damage to the plaintiff.” Haynesworth v. D.H. Stevens Co., 645 A.2d 1095, 1098 (D.C. 1994). Defendant NCAA argues that
[n]owhere in the Amended Complaint does [the p]laintiff plead that the NCAA did something or did not do something after the alleged injury with respect to her medical care, that the NCAA played any part in the medical decision made by the healthcare providers she consulted, or even that the NCAA was aware of her injury or that she was receiving medical care. Simply put, [the pjlaintiff s [negligence] claim is about the medical care she .received from other people, not the NCAA.
NCAA’s Reply at 8. Thus, the NCAA contends that the “[pjlaintiff has not pled sufficient facts to establish (even at the pleading stage) that [its] supposed negligence caused her injuries[,]” and therefore, the “[plaintiffs' negligence-based .claims must be, dismissed.” NCAA’s Mem. at 15.
“The. District .of Columbia Court .of Appeals ‘has defined proximate causation as „ that cause which, in natural and continual sequence, unbroken by -any efficient intervening cause, produces the injury, and .without which the result would not- have occurred.’ ” Smith v. Hope Village, Inc., 481 F.Supp.2d 172, 199-200 (D.D.C. 2007) (Walton, J.) (quoting District of Columbia v. Zukerberg, 880 A.2d 276, 281 (D.C. 2005)). “[A]n actor whose conduct is a substantial factor in bringing about [the] harm shall be liable in negligence ... for[, inter alia,] harm foresee-ably attributable to his or her conduct.” Id. at 200 (quoting White v. United States, 780 F.2d 97, 106 (D.C. Cir. 1986) (alterations in original)). The plaintiff may demonstrate proximate cause by “either direct or circumstantial evidence,” Zukerberg, 880 A.2d at 281, and “‘[i]n most cases, the existence of proximate cause is a question of fact for the jury,’ and ‘only if it is absolutely clear that the [defendant’s] negligence could not have been a proximate cause [of the harm asserted by the plaintiff] is it a question of law,’ ” Smith, 481 F.Supp.2d at 185 (first quoting McNeal v. Hi-Lo Powered Scaffolding, Inc. 836 F.2d 637, 644 (D.C. Cir. 1988); then quoting Boodoo v. Cary, 21 F.3d 1157, 1161 (D.C. Cir. 1994) (alterations in original)).
Here, the plaintiff has pleaded facts sufficient to establish a claim of negligence against the NCAA. In her Amended Complaint, the plaintiff asserts that “[d]e-fendant NCAA undertook and assumed a duty to protect the physical and mental well-being of all student-athletes participating in intercollegiate sports, including [her,] ... [and] a duty to protect student-athletes from brain injuries.” Removal Notice, Ex. 5 (Am. Compl.) ¶¶ 138-39. The plaintiff then alleges that “[defendant NCAA failed in its duties” by, among other things, failing to
ensure that the coaches, athletic trainers and graduate assistants were educated about the signs, symptoms!,] and risks of concussions, second-impact syndrome, and pos1>concussive syndrome; implement appropriate safety procedures and policies regarding care, treatment, and monitoring of student-athletes suffering from concussions, concussion symptoms, and post-concussive symptoms; implement appropriate oversight over its member institutions in their implementation of Concussion Management Plans; provide appropriate guidance to its member institutions on concussion management; [and] safeguard[ ] its student-athletes from preventable concussion and post-concussion injuries.
Id., Ex. 5 (Am. Compl.) ¶ 142(b), (g), (h), (i), (k), (m). And the plaintiff also contends that the NCAA’s alleged negligent acts or omissions proximately caused her to suffer economic and non-economic damages such as various “past [and future] medical bills, ... and loss of future economic opportunity,” id. Ex. 5 (Am. Compl.) ¶ 145, as well as “deterioration of her mental status, daily mental struggles, pain, suffering, mental anguish, depression, embarrassment, humiliation!,] and disfigurement,” id. Ex.- 5 (Am. Compl.) ¶ 146. Because “it is [not] absolutely clear that the [defendant’s] negligence could not have been a proximate cause” of the harm asserted by the plaintiff,” Smith, 481 F.Supp.2d at 185 (second alteration in original), and because the plaintiff has pleaded facts sufficient to demonstrate causation to withstand a motion to dismiss, the Court must deny the NCAA’s motion to dismiss with respect to the plaintiffs negligence claim against it.
2. The Gross Negligence Claim
Count II of the plaintiffs Amended Complaint asserts a gross negligence claim against the NCAA. See Removal Notice, Ex. 5 (Am. Compl.) ¶¶ 147-56. The NCAA contends that the plaintiffs gross negligence claim against it is “duplicative of [the plaintiffs negligence claim and should be dismissed as redundant.” NCAA’s Mem. at 15.
“In the District of Columbia, ‘courts have traditionally analyzed whether a defendant acted with gross negligence only in limited circumstances where gross negligence is a specific element of a claim or defense, or for equitable reasons.’” Search v. Uber Techs, Inc., 128 F.Supp.3d 222, 237 (D.D.C. 2015) (quoting Hernandez v. District of Columbia, 845 F.Supp.2d 112, 116 (D.D.C. 2012)). Where, as here, the “plaintiff has already alleged a negligence elaim[,] ... the Court defers to the general rule in the District of Columbia against recognizing degrees of negligence and 'will dismiss as duplicative plaintiffs claim for gross negligence ... as a separate basis of liability.”’ Id. (citation omitted) (alterations in original).
The “[pjlaintiff maintains her contention that [defendant NCAA’s conduct in this matter rose to the level of gross negligence for which punitive damages may be recoverable[, and that s]uch damages are not recoverable under a mere standard of negligence.” Pl.’s NCAA Opp’n at 32. However, the plaintiffs Amended “Complaint includes multiple counts of negligence against [the NCAA], and [the plaintiff] does not identify any relevant statutory claim or defense requiring a showing of gross negligence.” Search, 128 F.Supp.3d at 237; see also Removal Notice, Ex. 5 (Am. Compl.) ¶¶ 147-56 (alleging only the elements of a gross negligence claim without any reference to any statutory claim or defense). Instead, the plaintiff asserts a claim of gross negligence only for the purposes of recovering punitive damages. But, “neither ‘gross negligence’ nor ‘punitive damages’ is a stand-alone cause of action in the District of Columbia.” Search, 128 F.Supp.3d at 237-38. Accordingly, the Court must dismiss the plaintiffs gross negligence claim against defendant NCAA.
3. The Negligent Infliction of Emotional Distress Claim
The plaintiff in Count IV of her Amended Complaint alleges that she “has and continues to suffer from severe emotional distress” resulting from the NCAA’s alleged negligence. Removal Notice, Ex. 5 (Am. Compl.) ¶ 171. Similar to its argument in opposition to the plaintiffs gross negligence claim, the NCAA contends that the “[pjlaintiffs negligent infliction of emotional distress [claim] is subsumed by her negligence claim and thereby seeks dupli-cative damages.” NCAA’s Mem. at 16.
“To establish a prima facie case of negligent infliction of emotional distress, [a plaintiff] must show that she was in the zone of physical danger created by [the defendant’s] conduct and was caused by [the defendant’s] negligence to fear for her own well-being.” Hollis v. Rosa Mexicano D.C., LLC, 582 F.Supp.2d 22, 27 (D.D.C. 2008) (quoting Jane W. v. Pres. & Dirs. of Georgetown Coll., 863 A.2d 821, 826 (D.C. 2004) (alterations in original)). Alternatively, “when a plaintiff [is] not within the zone of danger but where there is a ‘special relationship’ between the parties,” a plaintiff may state of a claim of negligent infliction of emotional distress
if the plaintiff can show that (1) the defendant has a relationship 'with the plaintiff, or has undertaken an obligation to the plaintiff,' of a nature that necessarily implicates the plaintiffs emotional well-being, (2) there is an especially likely risk that the defendant’s negligence would cause serious, emotional distress to the plaintiff, and (3) negligent actions or omissions of the defendant in breach of that obligation have, in fact, caused serious emotional distress to the plaintiff.
Lesesne v. District of Columbia, 146 F.Supp.3d 190, 195 (D.D.C. 2015) (citing Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 810-11 (D.C. 2011)).
Here, the plaintiff has not pleaded facts sufficient to establish a claim of negligent infliction of emotional’ distress against the NCAA. In her Amended Complaint, the plaintiff merely summarizes the same allegations upon which she seeks to establish claims of negligence and gross negligence, and recites, in a conclusory fashion, the elements that set forth a claim for negligent infliction of emotional distress. Removal Notice, Ex. 5 (Am. Compl.) ¶¶ 169-73. Additionally, the plaintiff has not proffered any facts that demonstrate that the NCAA’s alleged negligence, rather than her underlying physical injury, caused her serious emotional distress. See id., Ex. 5. (Am. .Compl.) ¶¶ 172-73 (asserting’ the same injuries in Count' I (negligence) and Count II (gross negligence) against the NCAA). Consequently, the plaintiff has not pleaded facts sufficient to plausibly state a claim of negligent infliction of ' emotional distress against the NCAA, and therefore, the Court grants the NCAA’s motion to dismiss Count IV against it.
4. The Fraudulent Misrepresentation Claim
The plaintiff alleges in Count V of her Amended Complaint .that the NCAA .made false representations to her by stating “that it undertook and assumed a duty to protect the physical and mental well-being of all student-athletes participating in intercollegiate sports ... [and] to protect student-athletes from brain injuries.” Removal Notice, Ex. 5 (Am. Compl.) ¶ 175. The NCAA contends that the plaintiff fails to plead the requisite elements of a common law fraud-claim, including failing to identify “what statements [it] made to [the p]laintiff, when the statements were made, how any such statements were false, that [it] knew the statements were false, or how [the p]laintiff relied on those statements to her detriment.” NCAA’s Mem. at 12.
“The. essential elements of common law fraud are: (1) a false repre-; sentation, (2) in reference to [a] material fact, (3) made with knowledge of its falsity, (4) with the intent to deceive, and (5) action is taken in reliance upon the representation.” Va. Acad. of Clinical Psychologists v. Grp. Hosp. & Med. Servs., Inc., 878 A.2d 1226, 1233 (D.C. 2005) (citation omitted). In addition to the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, fraud claims are subject to the heightened pleading requirement of Rule 9(b), which provides that -“[i]n alleging fraud or mistake, a party must state with particularity the circumstances.. constituting fraud' or mistake.” Fed. R. Civ. P. 9(b). To satisfy this heightened standard,’“‘the pleader [must] ... state the time, placet,] and content, of the false misrepresentations, the fact misrepresented ... [,] what was retained or given up as a consequence of the, fraud,’ ” and “identify individuals allegedly involved in the fraud.” United States ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004) (citations omitted); see also Stevens v. InPhonic, Inc., 662 F.Supp.2d 105, 114 (D.D.C. 2009) (Walton, J.) (“The complaint must ... provide a defendant with notice of the who, what, when, where, and how with respect to the circumstances of the fraud in order to meet this enhanced pleading standard.” (internal citation and quotation marks omitted)).
Here, the plaintiff has failed to allege facts sufficient to state a claim of fraudulent misrepresentation against the NCAA to survive a motion to dismiss. The plaintiff claims that the “NCAA has both promised and acknowledged that it has a duty to protect the health and safety of student-athletes” because the' NCAA’s Constitution states that the NCAA “shall assist [member] institution[s] in [their] efforts to achieve full compliance with all rules and regulations,” Removal Notice, Ex. 5 (Am. Compl.) ¶ 65, and because “the NCAA utilizes injury surveillance data to examine, explore, understand, and work to prevent sports injuries,” id., Ex. 5 (Am. Compl.) ¶ 67. Additionally, the plaintiff asserts that the NCAA’s representations to protect the health and safety of student-athletes were false. See id., Ex. 5 (Am. Compl.) ¶ 176. However, the plaintiff recognizes that the NCAA, through its Constitution, expressly notes that each member institution maintains sole responsibility “to protect the health of, and provide a safe environment for, each of its participating student athletes.” Id., Ex. 5 (Am. Compl.) ¶ 64 (quoting Article 2.2 of the NCAA’s Constitution), Even accepting the plaintiffs allegation of fraudulent misrepresentation as true, as the Court must at this stage of the proceedings, she has not alleged any facts that demonstrate how the NCAA’s representations are allegedly false, were “made with knowledge of its falsity [or] with the intent to deceive.” Va. Acad. of Clinical Psychologists, 878 A.2d at 1233. Instead, what the-plaintiff has done is simply assert a threadbare recital of the elements of a fraudulent misrepresentation claim. See Removal Notice, Ex, 5 (Am. Compl.) ¶¶ 174-82. Such bare, conclusory allegations satisfy neither the Rule 8 pleading standards as explained under ⅛ bal, nor the heightened pleadings requirements of Rule 9(b). The plaintiffs fraudulent misrepresentation claim against the NCAA must, therefore, be dismissed.
5. The Breach of Contract Claim
Count .VI of the plaintiffs Amended Complaint alleges that the NCAA and the plaintiff
entered into a contract whereby the NCAA agreed to undertake and assume a duty to protect the physical and mental well-being of all student-athletes participating in intercollegiate' sports, including [the plaintiff]; and agreed to undertake and assume a duty to protect student-athletes from brain injuries. In return, [the p]laintiff [ ] agreed to abide by all rules and regulations promulgated by -[d]efendant NCAA through its Constitution, Bylaws, and numerous authorizations required to participate in field hockey.
Removal Notice, Ex. 5 (Am. Compl.) ¶ 184, According to the plaintiff, “[defendant NCAA breached [this]' contract in failing to protect the physical and mental well-being of [the p]laintiff and in failing to protect [her] from brain injuries.” Id., Ex. 5 (Am. Compl.) ¶ 186.
“In the case' of a claim for breach of contract, the complaint must al-legé four necessary elements in order to effect fair notice: (1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by [the] breach.” Ihebereme v. Capital One, N.A., 730 F.Supp.2d 40, 47 (D.D.C. 2010) (internal quotation marks omitted). The NCAA argues that dismissal of the plaintiffs breach of contract claim against it is warranted because the plaintiff has not “identif[ied] an actual contract between her and the NCAA, much less a contract in which the NCAA agreed to be responsible for injuries [the pjlaintiff could suffer while playing field hockey.” NCAA’s Mem. at 13. The Court agrees.
In her Amended Complaint, the plaintiff cites the following formal agreements as establishing a valid contract for the basis of her breach of contract claim: (1) Health Insurance Portability and Accountability Act (“HIPAA”) authorization forms for the NCAA and the University; (2) Student-Athlete Concussion Statements for 2010-2011 and for 2011-2012 on behalf of the University; and (3) a Student-Athlete Authorization/Consent for Disclosure of Protected Health Information for NCAA-Related Research Purposes for the NCAA. See Removal Notice, Ex. 5 (Am. Compl.) ¶¶ 68, 92-93, 96; see also Pl.’s NCAA Opp’n at 26-27. However, only two of these formal agreements are between the plaintiff and the NCAA, and those agreements are only a request to access the plaintiffs medical records. See Removal Notice, Ex. 5 (Am. Compl.) ¶¶ 68, 96. Consequently, the plaintiff has neither identified a valid, enforceable contract wherein the NCAA agreed to protect the physical and mental well-being of students-athletes, including the plaintiff, nor the specific terms of any contract regarding the NCAA’s alleged duty or obligation to provide medical treatment to the plaintiff that the NCAA breached. See Regan v. Spicer HB, LLC, 134 F.Supp.3d 21, 30 (D.D.C. 2015) (dismissing part of the plaintiffs breach of contract claims because the plaintiff “failed to identify an obligation or duty arising out of the [contract] that was breached by [the defendants”); see also In re Fort Totten Metrorail Cases Arising Out of the Events of June 22, 2009, 808 F.Supp.2d 154, 159 (D.D.C. 2011) (Walton, J.) (“It is particularly important to note that ‘one cannot breach a contract without breaching a particular obligation created under the contract.’ ” (quoting Ihebereme, 730 F.Supp.2d at 47)).
Alternatively, if the Court concludes “that a formal contract was not entered into between the parties,” the plaintiff asserts “that she has adequately pled facts to support a claim of quasi-contract” or an implied-in-fact contract. Pl.’s NCAA Opp’n at 29. Specifically, the plaintiff contends that she “expect[ed] to receive consideration from [defendant NCAA for granting it the ability to appropriate her likeness and providing access to her personal identifiable and privileged medical information in the form of compliance and enforcement of the applicable rules and safeguards imposed by the NCAA.” Id. at 30. But, as the NCAA notes, see NCAA’s Reply at 6, the plaintiff has not pleaded any facts to establish a quasi-contract or an implied-in-fact contract, and the plaintiff may not now seek to do so or further amend her complaint through an opposition brief. See Thomas v. Sotera Def. Sols., Inc., 40 F.Supp.3d 181, 185 (D.D.C. 2014) (noting that “a complaint may not be amended by the briefs in opposition to a motion to dismiss” (internal citation and quotation marks omitted)). Accordingly, because the plaintiff has failed to plead facts sufficient to establish a valid contract between her and the NCAA regarding the NCAA’s alleged duty or obligation to provide her medical treatment, the Court must grant the NCAA’s motion to dismiss the plain-, tiffs breach of contract claim against it.
6. The Medical Malpractice Claim
The plaintiff predicates Count VIII of her Amended Complaint on a medical malpractice claim against the NCAA, In the District of Columbia, a “healthcare provider” is
an individual or entity licensed or otherwise authorized under District law to provide healthcare service, including a hospital, nursing facility, comprehensive outpatient rehabilitation facility, home health agency, hospice program, renal dialysis facility, ambulatory surgical center, pharmacy, physician or health care practitioner’s office, long-term care facility, behavior health residential treatment facility, health clinic, birth center, clinical laboratory, health center, physician, physician assistant, nurse practitioner, clinical nurse specialist, certified registered nurse anesthetist, certified nurse midwife, psychologist, certified social worker, registered dietitian or nutrition professional, physical or occupational therapist, pharmacist, or other individual health care practitioner.
D.C. Code § 16-2801(2) (2012). Defendant NCAA contends that dismissal of the plaintiffs medical malpractice claim against it is warranted because the “[p]laintiff does not allege that the NCAA is a healthcare provider licensed in the District of Columbia ..., and the NCAA neither falls within any of the twenty-seven examples enumerated in the statute, nor can it be considered an ‘other individual health care practitioner’ under any reasonable interpretation of the term.” NCAA’s Mem. at 9. The Court agrees.
The Court notes that the plaintiff has not alleged or pleaded facts that demonstrate that the NCAA is “an entity licensed or otherwise authorized under District law to provide healthcare servicefs].” D.C. Code § 16-2801(2). Nonetheless, in her attempt to show that “[defendant NCAA undertook a duty to act as a healthcare provider,” PL’s NCAA Opp’n at 18, the plaintiff relies on the Sports Medicine Handbook created by the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports, which provides “guidelines for sports medicine care and [the] protection of student athletes’ health and safety ... [and which she contends] may constitute some evidence of the legal standard of care,” id. at 17 (citing NCAA Mot., Ex. B (2011-2012 NCAA Sports Medicine Handbook (the “Sports Medicine Handbook”)) at 2). And, the plaintiff argues that the NCAA’s enforcement of the Sports Medicine Handbook and its underlying policies and guidelines constitutes the “practice of medicine.” Id. at 18 (comparing the NCAA’s action with respect to this Handbook to “Georgetown University and George Washington University!, which both] craft and enforce policies and procedures to be utilized within their hospi-tais”). However, the Sports Medicine Handbook expressly states:
This handbook consists of guidelines for each institution to consider in developing sports medicine policies appropriate for its intercollegiate athletics program.... These recommendations are not intended to establish a legal standard of care that must be strictly adhered to by member institutions.... [Additionally,] [t]hese general guidelines are not intended to supersede the exercise of medical judgment in specific situations by a member institution’s sports medicine staff. In all instances, determination of th