McMillan v. Washington Metropolitan Area Transit Authority

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN E. McMILLAN
Plaintiff,
v.
No. 18-cv-2362 (EGS)
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY,
Defendant.
MEMORANDUM OPINION
In 2010, Plaintiff Stephen E. McMillan (“Mr. McMillan”),
proceeding pro se, brought an employment discrimination lawsuit
against Defendant Washington Metropolitan Area Transit Authority
(“WMATA”) under Title VII of the Civil Rights Act (“Title VII”),
42 U.S.C. § 2000e, et seq., as well as the First and Fourteenth
Amendments to the United States Constitution, arising out of the
termination of his employment. In 2012, this Court granted
WMATA’s motion for summary judgment, finding, inter alia, that:
(1) Mr. McMillan failed to exhaust his administrative remedies
with respect to several of his Title VII claims; (2) WMATA
asserted a legitimate, nondiscriminatory explanation for its
discipline and termination of Mr. McMillan; (3) Mr. McMillan
failed to demonstrate that WMATA’s explanation was a pretext for
discrimination, and no reasonable jury could find that WMATA’s
stated reasons for his termination were pretextual; and
(4) WMATA was immune from Mr. McMillan’s constitutional claims,
which were construed as claims under 42 U.S.C § 1983. McMillan
v. Wash. Metro. Area Transit Auth., 898 F. Supp. 2d 64, 66, 68-
72 (D.D.C. 2012) (“McMillan I”). Mr. McMillan appealed the
Court’s decision, and the United States Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”) dismissed the
appeal for lack of prosecution.
Undeterred, Mr. McMillan brings a new Title VII action
against WMATA, alleging employment discrimination and
malfeasance. WMATA moves to dismiss the action with prejudice,
arguing that Mr. McMillan cannot relitigate his termination.
Upon careful consideration of the motion, opposition and reply
thereto, the applicable law, and the entire record herein, the
Court concludes that Mr. McMillan’s complaint fails to state a
claim upon which relief can be granted, and that the doctrine of
res judicata bars this action because it is another challenge to
Mr. McMillan’s termination. Accordingly, the Court GRANTS
WMATA’s motion to dismiss and DISMISSES WITH PREJUDICE the
Complaint.
I. Background
The factual background in this case, which is set forth in
greater detail in the prior Opinion, will not be repeated in
2
full here. 1 See McMillan I, 898 F. Supp. 2d at 66-68. In November
1999, WMATA hired Mr. McMillan as an elevator and escalator
technician. Id. at 66. After his inquiry into the status and
distribution of a bonus owed to another WMATA employee who
recruited him to work at WMATA, Mr. McMillan allegedly
experienced “negative consequences” for the rest of his career
there. Id.; see also Def.’s Statement of Material Facts Not in
Dispute, McMillan I, Civil Action No. 10-1867, ECF No. 15-2 at 2
¶ 3. 2 According to him, WMATA denied him career advancement
opportunities. McMillan I, 898 F. Supp. 2d at 66. And he
observed WMATA exclusively hiring female employees for
administrative job openings without regard to time-in-service or
time-in-grade. Id.
Mr. McMillan lodged a complaint with WMATA’s Office of
Civil Rights, alleging “mismanagement” and “discrimination,”
id., and he attempted to file one with WMATA’s Inspector
1 Mr. McMillan’s one-page complaint does not include numbered
paragraphs as required by Federal Rule of Civil Procedure
10(b). Nonetheless, the Court considers the documents attached
to his complaint, see Compl., ECF No. 1-1 at 1-16, including his
complaint filed in McMillan I. See Ward v. D.C. Dep’t of Youth
Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (“[A]
court may consider on a motion to dismiss the facts alleged in
the complaint, documents attached as exhibits or incorporated by
reference in the complaint[.]” (citation and internal quotation
marks omitted)).
2 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
3
General’s Office to allege fraud, waste, and abuse. Id. at 66-
67. WMATA’s Office of Civil Rights concluded that his complaint
did not fall within the purview of Title VII because it failed
to involve discrimination allegations, and recommended that Mr.
McMillan contact his union representative or superintendent. Id.
at 66.
Between February 2007 and June 2008, Mr. McMillan was
involved in at least four separate incidents at WMATA that
resulted in disciplinary actions, including a written warning
and three suspensions. Id. at 67, 72; see also Letter from David
A. Lacosse, Director, Office of Elevator & Escalator Servs., to
Mr. McMillan (Dec. 3, 2008), McMillan I, Civil Action No. 10-
1867, ECF No. 15-3 at 3. Pending the outcome of an investigation
into “annual and monthly preventive maintenance” work that he
was tasked with performing at a Metrorail station escalator
unit, WMATA placed Mr. McMillan on administrative leave in
November 2008. Id. at 2. One month later, WMATA terminated Mr.
McMillan, citing his work-related incidents and negligence in
performing the maintenance work. Id. at 2-3.
Mr. McMillan filed his first Title VII lawsuit against
WMATA on November 2, 2010 after filing a charge of
discrimination with the United States Equal Employment
Opportunity Commission (“EEOC”) and receiving the EEOC’s
Dismissal and Notice of Rights. McMillan I, 898 F. Supp. 2d at
4
72 at 67. Mr. McMillan alleged, inter alia, that WMATA
retaliated against him from April 11, 2002 through June 10,
2008. Id. On October 12, 2012, this Court granted WMATA’s motion
for summary judgment, id. at 72, and entered final judgment in
favor of WMATA, Order, McMillan I, Civil Action 10-1867, ECF No.
22 at 1. The Court found that: (1) WMATA was immune from Mr.
McMillan’s constitutional claims, which the Court construed as
claims brought under 42 U.S.C. § 1983, McMillan I, 898 F. Supp.
2d at 68-70; (2) Mr. McMillan failed to exhaust his
administrative remedies with respect to several of the Title VII
claims, except his retaliation claim as to the termination, id.
at 70-71; (3) WMATA asserted a legitimate, nondiscriminatory
explanation for its discipline and termination of Mr. McMillan,
id. at 72, and (4) Mr. McMillan failed to demonstrate that
WMATA’s explanation was pretextual, and a reasonable jury could
not find that WMATA’s stated reasons were pretextual, id. On
October 31, 2012, Mr. McMillan filed a Notice of Appeal, Pl.’s
Notice of Appeal, McMillan I, Civil Action 10-1867, ECF No. 24
at 1. The D.C. Circuit dismissed the appeal for lack of
prosecution because Mr. McMillan failed to respond to an Order
to Show Cause. Order, McMillan v. Wash. Metro. Area Transit
Auth., No. 12-7117 (D.C. Cir. Feb. 14, 2013).
More than five years later, Mr. McMillan, proceeding pro
se, filed a new complaint against WMATA, alleging discrimination
5
and “malfeasance” in WMATA’s General Counsel’s Office, the EEOC,
and the United States District Court. Compl., ECF No. 1 at 1.
WMATA filed a motion to dismiss on November 9, 2018. See Def.’s
Mot. to Dismiss, ECF No. 6 at 1. WMATA moves to dismiss Mr.
McMillan’s complaint on two grounds: (1) the Court lacks subject
matter jurisdiction over this case because Mr. McMillan’s
complaint is barred by res judicata, id.; and (2) the complaint
fails to state a claim upon which relief can be granted, Def.’s
Mem. of Law in Support of Def.’s Mot. to Dismiss (“Def.’s
Mem.”), ECF No. 6-1 at 4. Mr. McMillan filed his opposition
brief on December 13, 2018, Pl.’s Opp’n, ECF No. 10 at 1, and
WMATA filed its reply brief on December 18, 2018, see Def.’s
Reply, ECF No. 11. The motion is ripe and ready for the Court’s
adjudication.
II. Legal Standard
The pleadings of pro se parties, such as the plaintiff in
the instant action, are “to be liberally construed, . . . and a
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations
and internal quotation marks omitted). Nevertheless, “[a]lthough
a court will read a pro se plaintiff’s complaint liberally, a
pro se complaint must present a claim on which the court can
grant relief.” Chandler v. Roche, 215 F. Supp. 2d 166, 168
6
(D.D.C. 2002).
A. Rule 12(b)(6)
1. Failure to State a Claim
“A Rule 12(b)(6) motion tests the legal sufficiency of a
complaint[.]” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002). A complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,” Fed.
R. Civ. P. 8(a)(2), “in order to give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests,”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation
and internal quotation marks omitted). “[T]he complaint is
construed liberally in the plaintiff[’s] favor, and [the Court]
grant[s] [the] plaintiff[ ] the benefit of all inferences that
can be derived from the facts alleged.” Kowal v. MCI Comm’cns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court
is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan v. Allain, 478 U.S. 265, 286
(1986).
A complaint survives a Rule 12(b)(6) motion only if it
“contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw
7
[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).
2. Doctrine of Res Judicata
“[T]he doctrine [of res judicata] is designed to conserve
judicial resources, avoid inconsistent results, engender respect
for judgments of predictable and certain effect, and to prevent
serial forum-shopping and piecemeal litigation.” Hardison v.
Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981). Res judicata
prevents the Court from hearing “repetitious suits involving the
same cause of action once a court of competent jurisdiction has
entered a final judgment on the merits.” United States v. Tohono
O’Odham Nation, 563 U.S. 307, 315 (2011) (citation and internal
quotation marks omitted). The doctrine “bars relitigation not
only of matters determined in a previous litigation but also
ones a party could have raised[.]” Capitol Hill Grp. v.
Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 491 (D.C.
Cir. 2009) (quoting NRDC v. Thomas, 838 F.2d 1224, 1252 (D.C.
Cir. 1988)).
“Res judicata may be brought as an affirmative defense that
is generally pleaded in a defendant’s answer, but is also
properly brought in a pre-answer Rule 12(b)(6) motion when all
8
relevant facts are shown by the court’s own records, of which
the court takes notice.” Sczygelski v. U.S. Customs & Border
Patrol Agency, 48 F. Supp. 3d 80, 84 (D.D.C. 2014) (citations
and internal quotation marks omitted), aff’d sub nom. Sczygelski
v. U.S. Customs & Border Prot., 624 F. App’x 1 (D.C. Cir. 2015)
(per curiam). 3
B. Rule 12(b)(1)
On a motion to dismiss for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1), the plaintiff bears the burden of establishing subject
matter jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992); see also Fed. R. Civ. P. 8(a)(1). “Because
subject-matter jurisdiction focuses on the court’s power to hear
the plaintiff’s claim, a Rule 12(b)(1) motion imposes on the
court an affirmative obligation to ensure that it is acting
within the scope of its jurisdictional authority.” Grand Lodge
of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13
(D.D.C. 2001). The Court “may consider materials outside the
pleadings in deciding whether to grant a motion to dismiss for
3 The Court takes judicial notice of the prior proceedings and
the subsequent appeal. See, e.g., Covad Commc’ns Co. v. Bell
Atlantic Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (permitting
judicial notice of public records of other proceedings);
Hemphill v. Kimberly–Clark Corp., 605 F. Supp. 2d 183, 186
(D.D.C. 2009) (“A court may take judicial notice of public
records from other proceedings.”).
9
lack of jurisdiction[.]” Jerome Stevens Pharm., Inc. v. FDA, 402
F.3d 1249, 1253 (D.C. Cir. 2005).
III. Analysis
WMATA advances two primary arguments for dismissal. First,
WMATA contends that Mr. McMillan’s instant action is barred by
the doctrine of res judicata because it attempts to revive
claims of misconduct and employment discrimination that this
Court dismissed in McMillan I. Def.’s Mot. to Dismiss, ECF No.
6. at 1. Next, WMATA argues that Mr. McMillan’s “nonsensical
Complaint fails to state sufficient factual allegations to state
a claim for relief plausible on its face.” Def.’s Mem., ECF No.
6-1 at 4. Mr. McMillan responds that “[t]he Order obtained from
this Court on October 12, 2012 by WMATA for Summary Judgment, is
the basis – not the essence of the Plaintiff’s current Claim.”
Pl.’s Opp’n, ECF No. 10 at 5 (emphasis in original). Mr.
McMillan argues that WMATA’s motion to dismiss “fails to address
or controvert the allegations in the complaint.” Id. Mr.
McMillan contends that WMATA’s failure to conduct an inquiry
into his claims can be characterized as “willful blindness”
because WMATA “had express notice of the instant case,” id., but
WMATA failed to “ascertain the facts in regard to the instant
case,” id. at 6. The Court addresses each argument, first
considering whether Mr. McMillan’s complaint fails to state a
claim upon which relief can be granted, and then considering
10
whether Mr. McMillan’s claims are barred by res judicata. The
Court concludes that Mr. McMillan’s complaint fails to state a
claim upon which relief can be granted, and that the doctrine of
res judicata bars this action.
A. Mr. McMillan’s Complaint Must Be Dismissed for Failure
to State a Claim
Mr. McMillan brings the present action against WMATA,
alleging employment discrimination and misconduct by WMATA. See
Compl., ECF No. 1 at 1; see also Pl.’s Opp’n, ECF No. 10 at 5-6.
WMATA argues that this Court should dismiss Mr. McMillan’s
complaint because it fails to state a claim upon which relief
can be granted. Def.’s Mem., ECF No. 6-1 at 4. The Court agrees.
Liberally construing the complaint, Mr. McMillan appears to
allege that “the United States District Court discovery
apparatus” and “empirical evidence” from “the United States
Department of Justice investigative services” revealed
misconduct at WMATA, the EEOC, and the federal district court.
See Compl., ECF No. 1 at 1. These conclusory allegations are not
enough to meet the plausibility standard. 4 See, e.g., Twombly,
4 In his opposition brief, Mr. McMillan appears to assert a due
process claim because he contends that WMATA’s alleged failure
to investigate his case violates his due process rights under
the Fifth and Fourteenth Amendments. See Pl.’s Opp’n, ECF No. 10
at 3, 6, 8-9. Mr. McMillan did not assert a due process claim in
his complaint, see Compl., ECF No. 1 at 1. While “the pro se
litigant may, in effect, supplement his [or her] complaint with
the allegations included in his [or her] opposition[,] the pro
se plaintiff must still plead factual matter that permits the
11
550 U.S. at 555 (“Factual allegations must be enough to raise a
right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact)[.]”); Iqbal, 556 U.S. at 678 (“A
pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.”
(citation and internal quotation marks omitted)). Mr. McMillan’s
complaint is devoid of any facts or circumstances that would
permit this Court to draw any inferences of the alleged
misconduct. See Compl., ECF No. 1 at 1.
Even when given the liberal construction afforded to pro se
pleadings, Mr. McMillan’s employment discrimination claim under
Title VII wholly fails to state a claim upon which relief can be
granted. See Fed. R. Civ. P. 12(b)(6). The Court therefore finds
that Mr. McMillan’s claims cannot withstand a motion to dismiss. 5
court to infer more than the mere possibility of misconduct.”
Magowan v. Lowery, 166 F. Supp. 3d 39, 58 (D.D.C. 2016)
(citations and internal quotation marks omitted). To the extent
that Mr. McMillan asserts a due process claim, the Court finds
that Mr. McMillan has failed to plead facts that allow this
Court to infer beyond the mere possibility of WMATA’s alleged
misconduct.
5 On November 8, 2018, the Clerk of Court received Mr. McMillan’s
“Motion for Default for Defendant’s Failure to Answer” and his
Affidavit in Support of Default. See Pl.’s Aff. in Support of
Default (“Pl.’s Aff.”), ECF No. 7 at 1-2. The Clerk of Court did
not enter a default against WMATA. See generally docket of Civil
Action No. 18-2362. The Court granted Mr. McMillan leave to file
the motion and affidavit on November 16, 2018. WMATA filed its
opposition brief on November 28, 2018. See Def.’s Opp’n to Pl.’s
Mot. for Default, ECF No. 8 at 1. Mr. McMillan argues that he is
12
B. The Doctrine of Res Judicata Bars Mr. McMillan’s
Complaint
The Court next considers whether Mr. McMillan’s complaint
is barred by the doctrine of res judicata. Under this doctrine,
“a subsequent lawsuit will be barred if there has been prior
litigation (1) involving the same claims or cause of action,
(2) between the same parties or their privies, and (3) there has
been a final, valid judgment on the merits, (4) by a court of
competent jurisdiction.” Smalls v. United States, 471 F.3d 186,
192 (D.C. Cir. 2006).
It is undisputed that all four prerequisites apply in this
case. The present action and McMillan I involve the same cause
of action because Mr. McMillan continues to challenge his
termination under Title VII. See Pl.’s Opp’n, ECF No. 10 (“[T]he
instant case is substantially derivative of the [first
action].”); id. (stating that the McMillan I decision “is the
basis . . . of the Plaintiff’s current Claim.”). In 2010,
entitled to a default judgment because WMATA’s motion to dismiss
was not filed within twenty-one days after being served with the
summons and complaint. See Pl.’s Aff., ECF No. 7 at 1-2; see
also Pl.’s Opp’n, ECF No. 10 at 5. “[U]nless the complaint
states a claim upon which relief may be granted as to the
defendant[ ] who [has] defaulted, default judgment is not
justified.” Harris v. U.S. Dep’t of Justice, 600 F. Supp. 2d
129, 136–37 (D.D.C. 2009). The Court therefore DENIES Mr.
McMillan’s motion for default judgment because Mr. McMillan has
failed to provide a “short and plain statement of the claim
showing that [he] is entitled to relief,” Fed. R. Civ. P.
8(a)(2), and Mr. McMillan’s complaint fails to state a claim
upon which relief can be granted, see Fed. R. Civ. P. 12(b)(6).
13
Mr. McMillan brought a Title VII lawsuit against WMATA, see
Compl., McMillan I, Civil Action No. 10-1867, ECF No. 1 at 1,
and he brought this action under Title VII against WMATA in
2018, see Compl., ECF No. 1 at 1. In McMillan I, this Court
granted WMATA’s motion for summary judgment, which constitutes a
final judgment on the merits. See Prakash v. Am. Univ., 727 F.2d
1174, 1182 (D.C. Cir. 1984) (“As a decision on the merits, a
summary judgment merges or bars the action for res judicata
purposes.” (footnote omitted)). There is no question that this
Court is a court of competent jurisdiction.
A final “judgment bars any further claim based on the same
‘nucleus of facts,’ for ‘it is the facts surrounding the
transaction or occurrence which operate to constitute the cause
of action, not the legal theory upon which a litigant relies.’”
Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)
(quoting Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1234 (2d
Cir. 1977)) (emphasis added). “In order to determine whether
factual events are part of the same transaction, a court must
‘determine[ ] pragmatically . . . whether the facts are related
in time, space, origin, or motivation, whether they form a
convenient trial unit, and whether their treatment as a unit
conforms to the parties’ expectations or business understanding
or usage.’” Sczygelski, 48 F. Supp. 3d at 85 (quoting Stanton v.
D.C. Court of Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997)).
14
The instant action concerns the same “nucleus of facts”
that this Court addressed in McMillan I because Mr. McMillan
challenges not only his termination in both actions, but also
WMATA’s alleged failure to investigate his other claims stemming
from his termination. Compare McMillan I, 898 F. Supp. 2d at 66
(Mr. McMillan alleged “mismanagement,” “fraud, waste and abuse”
at WMATA), with Compl., ECF No. 1 at 1 (alleging “malfeasance”
at WMATA, the EECO, and the federal district court). Mr.
McMillan had the opportunity to litigate those claims against
the EEOC and the federal district court in McMillan I, but he
decided to base, in part, his lawsuit on WMATA’s alleged
mismanagement. The Court therefore finds that Mr. McMillan’s
present action is barred by the doctrine of res judicata because
his claims could have been—and some have already been—raised in
McMillan I. 6
Nothing in the attachments to Mr. McMillan’s complaint
alters this conclusion. See Compl., ECF No. 1-1 at 1-16. Mr.
6 To the extent Mr. McMillan asserts a fraud claim, see Pl.’s
Opp’n, ECF No. 10 at 2-3, that claim is barred by res judicata
because he asserted fraud allegations against WMATA in McMillan
I. See 898 F. Supp. 2d at 66. Mr. McMillan appears to rely on
Gabelli v. S.E.C., 568 U.S. 442 (2013), to suggest that WMATA
has committed fraud. See Pl.’s Opp’n, ECF No. 10 at 2-3. In
Gabelli, the Supreme Court held that the United States
Securities and Exchange Commission (“SEC”) cannot seek civil
penalties under 28 U.S.C. § 2462 for a claim that accrued more
than five years before the SEC filed the action. 568 U.S. at
454. Gabelli, a case that applies to SEC civil-enforcement
actions alleging securities fraud, has no bearing on this case.
15
McMillan attaches to his complaint certain e-mail
communications, letters, and court filings in McMillan I. See
id. In September 2018, Mr. McMillan sent an e-mail to WMATA,
expressing his intention to file a “follow-up civil action” to
McMillan I. Id. at 2. Ten days before Mr. McMillan filed this
action, he sent an e-mail to WMATA’s Board of Directors, stating
that “[c]onstructive notice is chargeable where-there has been
lack of due diligence or a design to abstain from inquiry to
avoid notice.” Id. at 1. He goes on to state that WMATA’s Board
of Directors has been “afforded the opportunity to inquire into
and deny the law on which the entitlement to make the claim is
based.” Id. To support his statements, Mr. McMillan cites non-
binding, New York state court decisions. Id. (citing Reed v.
Gannon, 50 N.Y. 345, 350 (N.Y. 1872); Seymour v. Seymour, 28
A.D. 495 (N.Y. App. Div. 1898); In re Di Marti, 72 Misc. 148,
151 (N.Y. Sup. Ct. 1911)). In his opposition brief, Mr. McMillan
relies on those same New York state court decisions and other
decisions to make the same “constructive notice” argument that
WMATA failed to examine the underlying facts of his claims.
Pl.’s Opp’n, ECF No. 10 at 6. 7
To the extent Mr. McMillan attempts to assert a new legal
7 Mr. McMillan’s cited cases are inapposite for the simple reason
that WMATA does not dispute that it had notice of the lawsuits.
See Pl.’s Opp’n, ECF No. 10 at 2-3, 6-8; see generally Def.’s
Reply, ECF No. 11.
16
theory as the basis for the present action, such a “new” theory—
that WMATA had constructive notice of his claims and failed to
examine the facts of his case—could have been brought in
McMillan I. See Thunder v. U.S. Parole Comm’n, 133 F. Supp. 3d
5, 8 (D.D.C. 2015) (Sullivan, J.) (“A party cannot escape
application of the doctrine by raising a different legal theory
or by seeking a different remedy in the new action that was
available to him in the prior action.”). Indeed, Mr. McMillan
has already claimed that WMATA ignored his claims in McMillan I.
See Po Kee Wong v. U.S. Sol. Gen., 839 F. Supp. 2d 130, 137
(D.D.C. 2012) (Sullivan, J.) (dismissing a pro se plaintiff’s
claims on grounds of res judicata because the plaintiff had his
opportunity to fully litigate the claims in a prior proceeding),
aff’d, No. 12-5102, 2012 WL 3791302 (D.C. Cir. Aug. 8, 2012).
While the law in this Circuit makes clear that “[r]es judicata
may not bar a later suit where the plaintiff was not aware of
its claim at the time of the first litigation[,]” Capitol Hill
Grp., 569 F.3d at 491, Mr. McMillan has failed to present any
new evidence that demonstrates that he was unaware of the claims
in his complaint in the instant action at the time of McMillan
I.
Having found that Mr. McMillan’s complaint is barred by the
doctrine of res judicata, the Court next addresses WMATA’s
argument for dismissal for lack of subject matter jurisdiction.
17
See Def.’s Mot. to Dismiss, ECF No. 6 at 1. Mr. McMillan has
failed to argue that he has met his burden of establishing that
the Court has subject matter jurisdiction. See generally Pl.’s
Opp’n, ECF No. 10. Instead, he appears to argue that this Court
must consider whether exercising personal jurisdiction over
WMATA would offend “traditional notions of fair play and
substantial justice.” Pl.’s Opp’n, ECF No. 10 at 2 (quoting
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The
Court need not address Mr. McMillan’s argument because WMATA
does not move to dismiss the complaint for lack of personal
jurisdiction. See Def.’s Mot. to Dismiss, ECF No. 6 at 1.
Because the Court has determined that Mr. McMillan fails to meet
the plausibility standard to survive a motion to dismiss under
Rule 12(b)(6), the Court need not reach the other basis for
dismissal—lack of subject matter jurisdiction—advanced by WMATA. 8
See Kaufman v. I.R.S., 787 F. Supp. 2d 27, 34 n.6 (D.D.C. 2011).
Furthermore, the D.C. Circuit has made clear that res judicata
does not deprive the Court of subject matter jurisdiction. E.g.,
8 WMATA’s reliance on Rizvi v. McClure, 597 F. Supp. 2d 63, 66
(D.D.C. 2009) does not change this conclusion. See Def.’s Mem.,
ECF No. 6-1 at 3. The court’s observation in Rizvi—that “a
motion for dismissal based on res judicata properly falls under
Federal Rule of Civil Procedure 12(b)(1),” 597 F. Supp. 2d at
66—is inconsistent with D.C. Circuit precedent because res
judicata does not affect the Court’s subject matter
jurisdiction. See, e.g., Smalls, 471 F.3d at 189; Kursar v.
Transportation Sec. Admin., 751 F. Supp. 2d 154, 163 n.7 (D.D.C.
2010), aff’d, 442 F. App’x 565 (D.C. Cir. 2011).
18
Bailey v. Fulwood, 793 F.3d 127, 136 n.5 (D.C. Cir. 2015)
(“[N]either collateral estoppel nor res judicata deprives the
court of subject-matter jurisdiction.”); Smalls, 471 F.3d at 189
(“[T]he defense of res judicata, or claim preclusion, while
having a somewhat jurisdictional character, does not affect the
subject matter jurisdiction of the district court.”).
Finally, WMATA moves to dismiss this action with prejudice.
Def.’s Mem., ECF No. 6-1 at 1. The Court observes that “[t]he
standard for dismissing a complaint with prejudice is high:
‘dismissal with prejudice is warranted only when a trial court
determines that the allegation of other facts consistent with
the challenged pleading could not possibly cure the
deficiency.’” Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir.
2006) (emphasis in original) (quoting Firestone v. Firestone, 76
F.3d 1205, 1209 (D.C. Cir. 1996). Because such a determination
has been made, the Court must dismiss this action with
prejudice.
IV. Conclusion
For the reasons set forth above, the Court GRANTS WMATA’s
motion to dismiss and DISMISSES WITH PREJUDICE Mr. McMillan’s
complaint. A separate Order accompanies this Memorandum Opinion.
SO ORDERED
Signed: Emmet G. Sullivan
United States District Judge
July 26, 2019
19