*1 Pending before the Court is Plaintiff's Motion to Compel Discovery from the District of Columbia (“Motion”) [15]; Defendant Officer Jody Shegan's Opposition to the Motion (“Opposition”) [21]; and Plaintiff's Reply to the Opposition (“Reply”) [23]. Plaintiff Abdul Greene (“Greene” or “Plaintiff”) moves to compel the District of Columbia (the “District”) to respond to discovery requests and seeks sanctions against the District for its failure to timely respond to such requests.

A. Background

This case was initially filed in the Superior Court for the District of Columbia on November 7, 2011, and was later transferred to this Court on January 24, 2012. See Notice of Removal [1] and attachments thereto. Plaintiff Abdul Greene seeks damages against Defendant Officer Jody Shegan (“Shegan” or “Defendant”) based upon his claims of false arrest and false imprisonment, intentional infliction of emotional distress, assault and battery, and deprivation of civil rights. Defendant was sued in both his official and individual capacities. (Complaint [1-1] ¶4.) The District was not specifically named as a defendant in this case although service of the complaint and summons was effected on Irvin Nathan, D.C. Attorney General and on Mayor Vincent Gray, both through the Office of the D.C. Attorney General. (Reply, Exh. 1 [D.C. Superior Court docket sheet] and Exh. 2 [Affidavit of Service by Special Process Server].)

Plaintiff moves to compel responses to discovery from the District on grounds that because the Defendant was sued in his official capacity, the District is a party defendant.[1] Plaintiff further moves for sanctions against the District for its failure to timely respond to discovery. The issue before this Court is whether the District is a party defendant in this case, and thus, should be compelled to respond to discovery.

B. Analysis of the District's status in this case

As a preliminary matter, Plaintiff questions Defendant Shegan's standing to challenge the instant Motion to compel the District's responses in light of Shegan's assertion that a suit against him in his official capacity is not a suit against the District. (Reply at 1-2.) Plaintiff further notes that the District has not sought a protective order pursuant to Fed. R.Civ. P. 26(c) in response to the Motion. (Reply at 2.)[2]

Defendant relies on its assertion that the “Court's records do not reflect that the District is a party.” (Opposition at 4; see Pl's Notice Regarding Proper Parties in this Lawsuit [13] and Motion for an Order Directing the Clerk to have the Docket Reflect that the District of Columbia is a Defendant in this Matter [16].) Defendant further contends that “the District has not been named as a party in this litigation [in the Complaint] or served with the Summons and Complaint as a party.” (Opposition at 4.) See Affidavit of Tamonica Heard (declaring that the Tort Liability Division, District of Columbia Office of Risk Management “has received no claims notice” on behalf of Abdul Greene against Officer Jody Shegan.) (Affidavit [21-2] ¶4.)[3] Nor has the District entered its appearance in this case or been joined as a party. (Opposition at 4-5, referencing docket sheet.)[4]

*2 In response to Shegan's assertion that the District was not served with the Summons and Complaint, Plaintiff attaches Affidavits of Service, indicating that while the case was pending in Superior Court for the District of Columbia, the summons and complaint were served on the Office of Attorney General. (Reply, Exh. 2.) D.C. Code Section 12-309 provides that an action “may not be maintained against the District of Columbia for unliquidated damages ... unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the appropriate time, place, cause, and circumstances of the injury or damage.” The alleged injury in this case occurred on November 5, 2011, and service was effected on January 1, 2012. (Reply, Exh. 2.) This Court finds that the District was timely served with a copy of the summons and complaint and should have been aware of the pending litigation.

Furthermore, Defendant does not attempt to rebut the case law cited by Plaintiff in support of the proposition that official-capacity suits are “generally treated as suits against the government entity of which the officer is an agent.” Kentucky v. Graham, 473 U.S. 159 (1985); Lytle v. Brewer, 77 F.Supp.2d 730, 741 (E.D.VA. 1999); Bove v. Kennedy, 899 F. Supp. 114, 119 (E.D.N.Y. 1995) (suit against a state official in their official capacity is treated as a suit against the state) (citation omitted). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.” Kentucky v Graham, supra. (emphasis in original) (citations omitted). See also Atchinson v District of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996) (“When sued in their official capacities, government officials are not personally liable for damages.”) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)).[5]

In the instant case, Defendant Shegan does not contest that he has been sued in his official capacity. Following the reasoning set forth in Kentucky v. Graham and Atchinson, supra. and in light of the fact that the District was provided with notice of the lawsuit, this Court finds that the District of Columbia is an appropriate defendant in this case. The Court will permit the District thirty (30) days to respond to the Plaintiff's discovery requests.

Request for Sanctions

Pursuant to Fed. R. Civ. P. 37(a)(5), even if a motion to compel is granted, the Court should not grant the moving party an award of its expenses in making the motion if:

Fed. R. Civ. P. 37(a)(5).

As a preliminary matter, the Court notes that unlike other civil actions filed in this Court where both an individual officer and the District are specifically named as party defendants in the pleadings, the Plaintiff in this case named only the individual officer, although such officer was sued in both his individual and official capacities.[6] Furthermore, Plaintiff does not challenge Defendant's assertion that there was no mention of the District's failure to file an Answer to the Complaint during any status conference with the trial court. Instead, the Plaintiff served the District with discovery and subsequently filed this motion to compel responses to that discovery, followed by a motion requesting the Clerk's Office to have the docket reflect that the District is a defendant. This Court finds that the issue presented here “could engender a responsible difference of opinion among conscientious, diligent but reasonable advocates” in light of the docket sheet and Plaintiff's failure to raise this issue earlier. See Athridge v. Aetna Cas. and Sur. Co, 184 F.R.D. 200, 205 (D.D. C. 1998). Accordingly, this Court in its discretion declines to award sanctions against the District.[7]

*3 It is therefore, this 21st day of September, 2012,

ORDERED that the Plaintiff's Motion to Compel Discovery from the District of Columbia [15] is granted in part and denied in part. The District of Columbia shall respond to Plaintiff's discovery requests within thirty (30) days. The Court declines to award sanctions against the District of Columbia.

Plaintiff has also filed a motion for an order directing the Clerk of the Court to have the docket reflect that the District is a defendant. See [16].

Rule 26(c) provides in part that: A party or person from whom discovery is sought may move for a protective order in the court where the action is pending....” Fed. R. Civ. P 26(c).

Tamonica Heard is the Staff Assistant for the Tort Liability Division, District of Columbia Office of Risk Management. (Affidavit [21-2] ¶1.)

The District further argues that “it would be futile to add the District as a party defendant in this litigation ... [because] a municipality cannot be held liable for the claimed constitutional misconduct of an employee under a theory of respondeat superior liability.” (Opposition at 5.) This substantive argument [that may be raised in a dispositive motion] is premature in terms of whether the District should be a party to the lawsuit. The issue before this Court is whether the District is a party by virtue of the individual defendant being sued in his official capacity.

Kentucky v Graham, 473 U.S. 159, involved a Section 1983 claim against the Commissioner of the Kentucky State Police “individually and as a commissioner,”and plaintiff there sought damages for violation of constitutional rights stemming from a raid and arrest by the state police. Atchinson, 73 F. 3d 418, involved a Section 1983 claim against the District of Columbia, the mayor, the chief of police and a police officer for injuries suffered by plaintiff after being shot by the police officer.

A brief survey of cases filed by Plaintiff's counsel in this Court reveals that in many, if not all, of those cases the District of Columbia was specifically named as a defendant even where an individual [police officer] defendant was sued in his individual and official capacity.

Attached to Plaintiff's Motion [15] are Exhibits 2 and 3, which contain e-mail correspondence between counsel regarding the issue of whether the District is a proper defendant for purposes of responding to discovery. The nature and tone of this correspondence does not demonstrate that the movant attempted in “good faith” to obtain the discovery. (Motion [15], Exhs. 2 &3.)