UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SYED AKBAR,
Plaintiff,
v. Civil Action No. 23 - 2382 (LLA)
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Syed Akbar filed this suit against the United States of America for injuries he
sustained while riding an electric scooter on the National Mall. ECF No. 1. In August 2025, the
court granted summary judgment in favor of the United States. ECF Nos. 35, 36. Mr. Akbar now
moves to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). ECF
No. 37. For the reasons explained below, the court grants Mr. Akbar’s motion and vacates its entry
of summary judgment for the United States.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In September 2020, Mr. Akbar rented and rode an electric scooter on the National Mall.
ECF No. 1 ¶ 11. While riding the scooter on designated pathways between
Constitution Avenue, NW, and the World War II Memorial, Mr. Akbar came upon an unmarked
“uneven gap” on the path and lost control of the scooter. Id. He fell to the ground and sustained
injuries including a bimalleolar fracture to his left ankle. Id. ¶¶ 11, 22.
Mr. Akbar filed suit in August 2023, alleging that the United States had negligently
maintained the area where he fell off the scooter and seeking $5 million in damages. ECF No. 1, at 7.1 In January 2025, the United States moved to stay discovery pending the resolution of its
then-forthcoming dispositive motion, ECF No. 28, and Mr. Akbar filed an opposition, ECF
No. 29. Shortly thereafter, the United States moved for judgment on the pleadings under Federal
Rule of Civil Procedure 12(c). ECF No. 30. In February 2025, the court stayed discovery, finding
that it would not prejudice Mr. Akbar. See Feb. 10, 2025 Minute Order.
In August 2025, the court converted the United States’ motion for judgment on the
pleadings to a motion for summary judgment and granted summary judgment in favor of the
United States. ECF Nos. 35, 36. The court determined that the parties did not genuinely dispute
any material facts, such as the existence of the defect, its location, or that the defect caused a
two-inch change in elevation along the path. ECF No. 35 at 7. The court determined that, based
on these undisputed facts, the defect was de minimis as a matter of law, and it accordingly granted
summary judgment to the United States. Id. at 8-10. The following month, Mr. Akbar moved to
alter or amend the judgment under Rule 59(e). ECF No. 37. The motion is fully briefed. ECF
Nos. 37, 39, 40.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 59(e) permits a party to file a motion to alter or amend a
judgment within twenty-eight days of its entry. Such relief is only warranted in “extraordinary
circumstances.” Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d 48, 77 (D.D.C. 2013),
aff’d, 782 F.3d 9 (D.C. Cir. 2015). A party may not use a Rule 59(e) motion to “relitigate old
matters, or to raise arguments or present evidence that could have been raised prior to the entry of
1
Mr. Akbar also sued the District of Columbia, but the court granted the District’s motion for judgment on the pleadings in April 2024 because the property at issue was under the sole control of the United States. ECF No. 20, at 6.
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judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 11 Charles Alan
Wright et al., Federal Practice and Procedure § 2810.1 (2d ed. 1995)). And a Rule 59(e) motion
that “repeat[s] unsuccessful arguments,” Slate v. Am. Broad. Cos., 12 F. Supp. 3d 30, 34
(D.D.C. 2013), or is made based on “[m]ere disagreement” with the court’s judgment, will not
prevail, Wannall v. Honeywell Int’l, Inc., No. 10-CV-351, 2013 WL 12321549, at *3
(D.D.C. Oct. 24, 2013) (alteration in original) (quoting U.S. ex rel. Becker v. Westinghouse
Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002)).
A district court “need not” grant a Rule 59(e) motion “unless [it] finds that there is an
intervening change of controlling law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir.
2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). In assessing “clear
error” in the Rule 59(e) context, “courts have required ‘a very exacting standard,’ . . . such that the
‘final judgment must be “dead wrong” to constitute clear error.’” Wannall, 2013 WL 12321549,
at *3 (first quoting Bond v. U.S. Dep’t of Just., 286 F.R.D. 16, 22 (D.D.C. 2012); then quoting
Lardner v. Fed. Bureau of Investigation, 875 F. Supp. 2d 49, 53 (D.D.C. 2012)). Likewise,
“manifest justice” is an “exceptionally narrow concept in the context of a Rule 59(e) motion,” and
it “entail[s] more than just a clear and certain prejudice to the moving party, but also a result that
is fundamentally unfair in light of governing law.” Id.
III. DISCUSSION
Mr. Akbar raises three arguments in favor of his Rule 59(e) motion: (1) that the court
erroneously converted the United States’ motion for judgment on the pleadings to one for summary
judgment without affording him an opportunity to present all evidence supporting the existence of
a genuine dispute of material fact, ECF No. 37, at 10-15; (2) that the court failed to consider an
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expert declaration he had submitted in connection with his opposition to the United States’ motion
to stay discovery, id. at 15-17; and (3) that the court erroneously concluded that the sidewalk defect
was de minimis as a matter of law on the record before it, id. at 5-10. The court agrees on all three
points. Accordingly, the court will vacate the entry of summary judgment for the United States.
First, the court erred in converting the United States’ motion for judgment on the pleadings
to one for summary judgment without providing Mr. Akbar an opportunity to present evidence in
support of his position. If a Rule 12(c) motion is converted to a motion for summary judgment, a
court must provide the parties with “a reasonable opportunity to present all the material that is
pertinent to the motion.” Fed. R. Civ. P. 12(d); see Kim v. United States, 632 F.3d 713, 719
(D.C. Cir. 2011) (“In converting [a] motion [to one for summary judgment], district courts must
provide the parties with notice and an opportunity to present evidence in support of their respective
positions.”); see, e.g., Chandler v. W.E. Welch & Assocs., Inc., No. 06-CV-794, 2007 WL
4993270, at *1 (D.D.C. May 1, 2007) (providing ten days’ notice for the parties to file additional
materials). Before converting a motion, the court must “assure itself that summary judgment
treatment would be fair to both parties.” Tele-Commc’ns of Key W., Inc. v. United States, 757 F.2d
1330, 1334 (D.C. Cir. 1985); see Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156,
165 (D.C. Cir. 2003) (explaining that the failure to comply with the procedures set forth in Rule 12
to convert a motion to dismiss to one for summary judgment is evaluated under an “abuse of
discretion” standard).
Here, the court did not provide Mr. Akbar notice or an opportunity to present additional
evidence in opposition to the United States’ motion for summary judgment. Instead, the court
concluded that Mr. Akbar “‘had a full opportunity to oppose the motion[] and treated it as a
Rule 56 motion himself’ by submitting exhibits with his opposition and raising an argument as to
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whether a material dispute of fact exists.” ECF No. 35, at 5 (quoting Lopez v. Nat’l Archives &
Recs. Admin., 301 F. Supp. 3d 78, 85 (D.D.C. 2018)). But the court now recognizes that it had
stayed discovery pending resolution of the United States’ Rule 12(c) motion over Mr. Akbar’s
objection, Feb. 10, 2025 Minute Order, which indicates that Mr. Akbar had intended to seek
further discovery and possibly present additional material at the summary-judgment stage, see
ECF No. 29, at 3-9. Additionally, while Mr. Akbar attached photographs he had obtained in
discovery to his opposition to the United States’ motion for judgment on the pleadings—leading
the court to believe that he was also moving in the direction of summary judgment—he did not
attach other relevant discovery materials, such as an expert declaration he had filed earlier in the
case. See ECF No. 32, at 3 n.3; see also Pintro v. Wheeler, 35 F. Supp. 3d 47, 51-52 (D.D.C. 2014)
(“When presented with a motion for summary judgment before discovery has been conducted, a
district court must ‘permit[] [the nonmoving party] to either conduct discovery or come forward
with additional evidence.’” (alterations in original) (quoting Colbert v. Potter, 471 F.3d 158, 168
(D.C. Cir. 2006))). Accordingly, even though Mr. Akbar himself attached exhibits to his
opposition, he was entitled to “a reasonable opportunity to contest the matters outside of the
pleadings such that [he was] not taken by surprise.” Bowe-Connor v. Shinseki, 845 F. Supp. 2d
77, 86 (D.D.C. 2012); cf. Lopez, 301 F. Supp. 3d at 85 (concluding that conversion to summary
judgment was fair where the plaintiff had treated the defendant’s motion for judgment on the
pleadings “as a Rule 56 motion himself by submitting a cross-motion supported by a statement of
facts and a declaration, as well as an opposition”); Page v. Mancuso, 999 F. Supp. 2d 269, 276
(D.D.C. 2013) (converting a motion to dismiss to one for summary judgment where “it was [the
plaintiff] who submitted the outside materials” and the court had allowed the parties to “argue
orally the merits of converting the motion into one for summary judgment”); Citizens for Resp. &
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Ethics in Wash. v. Bd. of Governors of the Fed. Rsrv. Sys., 669 F. Supp. 2d 126, 129 (D.D.C. 2009)
(converting a motion to dismiss to one for summary judgment where “both parties ha[d] submitted
declarations outside of the pleadings that ha[d] not been excluded” and the defendant had
completed its document production).
Next, the court erred by granting summary judgment to the United States without
considering pertinent evidence in the record supporting Mr. Akbar’s case. In converting the
United States’ Rule 12(c) motion to one for summary judgment, the court stated that it would
“consider all the evidence presently before [the court],” ECF No. 35, at 5-6 (quoting Lopez, 301
F. Supp. 3d at 85), but it failed to consider Mr. Akbar’s expert declaration, which had previously
been appended to his opposition to the United States’ motion to stay discovery, see ECF No. 29-1,
at 6-10.2
Summary judgment is appropriate only if there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(e). The moving
party must demonstrate “the absence of a genuine issue of material fact” in dispute, Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific facts
supported by materials in the record that would be admissible at trial and that could enable a
reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Mr. Akbar had previously argued in his opposition to the United States’ motion to stay discovery
that summary judgment would be premature, see ECF No. 29, at 4-5, and he attached a declaration
by his expert, Jason Boyd, a civil engineer with “extensive experience in sidewalk construction
and maintenance practices,” ECF No. 29-1, at 6, as support. In his declaration, Mr. Boyd stated
2
When citing ECF No. 29-1, the court refers to the CM/ECF-generated numbers at the top of each page rather than any internal pagination.
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his opinion that the “national standard of care for sidewalks requires a level surface without vertical
changes in elevation greater than 0.25 inches on a sidewalk surface.” ECF No. 29-1, at 8. The
sidewalk here, however, “contained a vertical elevation change that exceeded two inches”—a fact
the United States did not dispute, see ECF No. 35, at 7—which Mr. Boyd asserted was a violation
of the national standard of care and a “significant safety hazard,” ECF No. 29-1, at 7-9; see ECF
No. 37, at 15-17. Having sua sponte converted the United States’ motion to one for summary
judgment, the court should have considered all the evidence in the record that supported
Mr. Akbar’s position, including Mr. Boyd’s expert declaration. ECF No. 29, at 4-5; see Fed. R.
Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other
materials in the record.”); Tolan v. Cotton, 572 U.S. 650, 659 (2014) (per curiam) (noting that a
failure to “properly . . . acknowledge key evidence offered by the party opposing [a summary
judgment] motion” is a “clear misapprehension of summary judgment standards”); 10A Charles
Alan Wright, et al., Federal Practice and Procedure § 2721 (4th ed. 2026) (explaining that “the
court is obliged to take account of the entire setting of the case on a Rule 56 motion”).3 The court’s
failure to do so was an oversight. Having now considered Mr. Boyd’s expert declaration, the court
determines that there are genuine disputes of material fact regarding the dangerousness of the
sidewalk defect in this case, such that it was premature to grant summary judgment to the United
States. See infra pp. 9-10.
3
The United States counters that Mr. Boyd’s declaration was not appended to Mr. Akbar’s opposition to the Rule 12(c) motion, so the court was not required to consider it when ruling on the motion. ECF No. 39, at 8. This misunderstands Mr. Akbar’s argument, which is that the court was required to consider the expert declaration after it converted the Rule 12(c) motion to one for summary judgment under Rule 56. See ECF No. 37, at 15.
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Finally, the court erred in holding that the two-inch elevation gap at issue was de minimis
as a matter of law. To be sure, “[t]he rule is well established that the [government] is not to be
made an insurer of the safety of pedestrians using its sidewalks and is only required to maintain
them in a reasonably safe condition.” Proctor v. District of Columbia, 273 A.2d 656, 659
(D.C. 1971). “Minor defects due to continued use, or the action of the elements, or other cause,
will not necessarily make the [government] liable for injuries caused thereby.” Id. at 658 (quoting
Barrett v. City of Claremont, 256 P.2d 977, 980 (Cal. 1953)). “What constitutes a minor defect is
not always a mere question of fact. If the rule were otherwise, the [government] would be liable
upon a showing of a trivial defect.” Id. (quoting Barrett, 256 P.2d at 980). Accordingly, courts
have held that minor sidewalk defects can be de minimis as a matter of law. See, e.g., Briscoe v.
District of Columbia, 62 A.3d 1275, 1278-79 (D.C. 2013); Williams v. District of Columbia, 646
A.2d 962, 962-93 (D.C. 1992) (per curiam); Proctor, 273 A.2d at 659; Hall v. United States,
No. 21-CV-2571, 2024 WL 4607541, at *7-8 (D.D.C. Oct. 29, 2024), aff’d sub nom., Hall v.
Architect of Capitol, No. 24-5265, 2025 WL 1719916 (D.C. Cir. June 12, 2025). However, after
reviewing the relevant cases again, the court finds them distinguishable for three reasons.
First, the defect in each case was smaller. See Briscoe, 62 A.3d at 1277-80 (concluding
that the alleged defect in a curbstone was de minimis when it “was very small, appearing to be an
indentation along the upper edge of the curb, running about two to three inches at most and about
one inch deep” (internal quotation marks omitted)); Williams, 646 A.2d at 962-63 (holding that a
gap of “approximately one-half inch” was de minimis); Proctor, 273 A.2d at 659 (explaining that
“the only evidence of negligence offered by appellant was a brick protruding one-quarter of an
inch” and concluding that, “as a matter of law, . . . the evidence [wa]s not sufficient to support a
finding of negligence”); see also Hall, 2024 WL 4607541, at *7 (concluding that a “hole in the
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pavement” of an unspecified size was de minimis). Here, Mr. Akbar alleged, and the United States
did not dispute, that the defect caused a two-inch change in the elevation along the path, and no
case directly supports a finding that such a defect is de minimis as a matter of law.4
Second, Mr. Akbar provided evidence—through Mr. Boyd’s expert declaration—that
“[t]he national standard of care for sidewalks requires a level surface without vertical changes in
elevation greater than 0.25 inches on a sidewalk surface,” and that the elevation change here was
“more than eight times the allowable amount.” ECF No. 29-1, at 8-9. Such evidence was lacking
in the cases where courts held defects to be de minimis. In Briscoe, the plaintiff relied on
photographs of the alleged defect, which, in the trial judge’s view, showed that the alleged defect
was “very small, appearing to be an indentation along the upper edge of the curb” and “the kind
of thing that . . . is all over the place.” 62 A.2d at 1279 (internal quotation marks omitted); see
Williams, 646 A.2d at 962 (similar). In Proctor, the plaintiff testified that the defect involved a
two-inch change in elevation, but “[w]hen asked to depict the elevational difference between the
brick over which she tripped and the adjacent bricks, she held up her thumb and forefinger to
approximate the distance.” 273 A.2d at 657. “The court then measured the space with a ruler and
4
In its previous opinion, the court cited Turner v. District of Columbia, 144 A.2d 699 (D.C. 1958), and District of Columbia v. Williams, 46 A.2d 111 (D.C. 1946), as cases in which the courts had found large defects to be de minimis as a matter of law. ECF No. 35, at 8. That was incorrect. In Turner, the appellate court affirmed a trial court’s determination after a bench trial that a three-and-a-half inch upheaval in a sidewalk did not give rise to liability. 144 A.2d at 700 (“Whether a particular defect in a particular set of circumstances is such an unsafe condition as to give rise to liability . . . is a question to be resolved by the trier of the facts.”). And in Williams, the case went to a jury, which determined that the defect was between one and one-and-five-eighths inches in size and found the defendant liable. 46 A.2d at 112. The trial court thereafter declined to set the jury’s verdict aside on the ground that the defect was de minimis as a matter of law, id., and the appellate court affirmed, explaining that the “case presented a situation wherein reasonable men could differ on the question of the [defendant’s] negligence, and the issue was therefore properly submitted to the jury,” id. at 113.
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found it not to be more than one-quarter of an inch,” which was consistent with “all of the [other]
evidence, including the exhibits.” Id. And in Hall, the court relied on photographs, 2024 WL
4607541, at *8, but it also noted the lack of “any testimony or evidence, expert or otherwise, to
establish the applicable standard of care . . . apart from [the plaintiff’s] untenable speculation,” id.
at *5. It could very well be that these courts would have reached different results on more
substantial records. Upon reconsideration of both the relevant cases and the record in this case,
this court certainly does.5
Third, the parties dispute the applicability of Klein v. District of Columbia, 409 F.2d 164
(D.C. Cir. 1969), in which the D.C. Circuit reversed a directed verdict for the defendant because a
jury, not the trial court, should have decided whether a protruding handle above a sidewalk
somewhere between one-fourth and three-fourths of an inch was unreasonably dangerous. Id.
at 166-68; see ECF No. 37, at 7-8; ECF No. 39, at 5-6. The United States points out that—unlike
here—the size of the defect was in dispute in Klein, so that question of fact was for a jury to
resolve. ECF No. 39, at 5; see Klein, 409 F.2d at 167-68. But the Klein Court held that if a jury
had determined that the protrusion measured three-fourths of an inch above the sidewalk, “it [was]
impossible to say that reasonable men must necessarily find that such a protrusion . . . is not
5
The United States nevertheless maintains that it is entitled to judgment on the pleadings—if not summary judgment—asserting that the sidewalk defect is de minimis based on the photograph in Mr. Akbar’s complaint. According to the United States, this photograph “shows ‘an indentation’ in a darker color that is ‘two to three inches at most’ and no more than ‘one inch deep.’” ECF No. 39, at 10 (quoting Briscoe, 62 A.3d at 1278). But the court cannot discern those dimensions based solely on the photograph, and, in any event, the court in Briscoe concluded that the defect was de minimis at summary judgment, not on a motion for judgment on the pleadings. Accepting Mr. Akbar’s factual allegations as true and drawing all inferences in his favor, the court cannot conclude that the change in elevation here was an example of “a very prevalent condition” that is de minimis as a matter of law at the Rule 12(c) stage. Proctor, 273 A.2d at 658. Accordingly, the United States is not entitled to judgment on the pleadings.
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unreasonably dangerous,” especially when the plaintiff had offered evidence that the protrusion
violated a reasonable standard of care. 409 F.2d at 166-68. Similarly here, even though the size
of the alleged defect is not currently in dispute, Mr. Akbar has presented evidence suggesting that
it violates the national standard of care. See ECF No. 29-1, at 8-9. Accordingly, Klein lends
further support to the court’s conclusion that summary judgment was premature when a genuine
dispute of material fact exists as to the dangerousness of the sidewalk defect.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Mr. Akbar’s Motion to Alter or
Amend Judgment, ECF No. 37, is GRANTED, and the entry of summary judgment for the
United States, ECF No. 36, is VACATED. It is further ORDERED that the parties shall meet
and confer and file a joint status report on or before September 8, 2026, proposing next steps in
this litigation.
SO ORDERED.
LOREN L. ALIKHAN
United States District Judge
Date: August 6, 2026
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