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February 21, 1992

MARION S. BARRY, JR., et al. Defendants.

The opinion of the court was delivered by: JOHN H. PRATT


 The Court has before it two motions for summary judgment filed by various defendants: a motion to dismiss or for summary judgment filed by defendants Leon Faulkner, Martha Faulkner and Ruth Humbles ("Faulkner Motion"), and a motion for summary judgment filed by defendants District of Columbia and several top officials. Additionally, there is a motion to vacate a default judgment against Metropolitan Police Officer David Anderson. This opinion will discuss each in turn.

 I. Background

 This case arises out of a home sale and the subsequent eviction of the original owner. *fn1" On May 26, 1987, plaintiff Juanita Kennedy Morgan, a seventy-five-year-old resident of the District of Columbia, sold her house located at 2705 30th Street, N.E., Washington, D.C. to defendants Martha Faulkner and her sister Ruth Humbles. Complaint P 14. Three days later, plaintiff's attorney paid the defendant purchasers $ 1,195 for plaintiff's right to remain on the premises for 30 days beyond May 26, 1987. Complaint P 15. However, on June 9, 1987, defendant Leon Faulkner visited the premises with a group of police officers. The officers told plaintiff that Faulkner was claiming a right of immediate possession. After plaintiff told them of her payment, the officers and Faulkner left. Complaint P 16. The complaint alleges that later that day, the Faulkners and several other defendant police officers arrived at the premises, accused plaintiff of having a gun, and then searched the premises and plaintiff's person. Complaint P 17. The police officers told plaintiff that the Faulkners had a right to immediate possession and that if she did not leave they would arrest her. Plaintiff left at that time, and the Faulkners changed the locks and took possession of the property and of plaintiff's possessions. Complaint P 19.

 Upon plaintiff's subsequent motion, the Superior Court of the District of Columbia issued a temporary restraining order, preventing defendants from interfering with plaintiff's quiet enjoyment until June 27, 1987. By consent of both parties, a praecipe was filed on June 23, 1987 in the District of Columbia Superior Court, whereby the action was dismissed without prejudice and plaintiff agreed to vacate the premises by June 30, 1987. See Plaintiff's Opposition to Faulkner Motion Exs. D & E.

 Plaintiff's present complaint lists ten counts alleging causes of action pursuant to 42 U.S.C. §§ 1983, 1985, 1986, the Fourth, Fifth and Fourteenth Amendments, and D.C. Code §§ 12-309 and 1-1201, et seq. The first count alleges that defendants conspired to deprive plaintiff of the right to be secure in her person and effects against unreasonable search and seizure in violation of the Fourth, Fifth and Fourteenth Amendments, and to deprive her of due process of law in violation of the Fifth and Fourteenth Amendments. The second count charges that since plaintiff had a history of making written and verbal complaints to the police, and as she had been involuntarily committed to Saint Elizabeth's Hospital after she fired a gun at a building behind her residence, *fn2" the police had promulgated or negligently permitted to exist a practice or procedure whereby "plaintiff's requests for police assistance and complaints regarding same were presumed invalid and ignored, and complaints to police officials by other individuals against plaintiff were presumed valid" and contributed to a gross neglect of legal duty that caused the events of June 9, 1987. See Complaint P 26. Plaintiff also claims a violation of D.C. Code § 16-1501 for her wrongful eviction, and she states common law claims of assault, battery, false imprisonment, severe emotional distress, negligently inflicted emotional distress, trespass and dispossession of chattel. Plaintiff seeks compensatory damages of $ 350,000 and punitive damages of $ 2,000,000. Complaint at 19-20.

 There are currently fifteen defendants in this action, including the government of the District of Columbia and those persons who held the positions of mayor, police chief, and deputy chief at the time of the incident. *fn3" Eight police officers who allegedly participated in the eviction are also named parties. *fn4" Additionally, the three owners and residents of the house are defendants: Leon and Martha Faulkner and Ruth Humbles. *fn5"

 II. Defendants Leon Faulkner, Martha Faulkner, and Ruth Humbles' Motion to Dismiss the Complaint

 Among the motions presently pending before the Court is defendants Leon Faulkner, Martha Faulkner, and Ruth Humbles' Motion to Dismiss the Complaint, Or, in the Alternative, for Summary Judgment pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 56, filed February 2, 1990. *fn6" This motion to dismiss was filed after these defendants answered plaintiff's complaint. As a Rule 12(b)(6) motion is untimely when filed after an answer, "some other vehicle, such as a motion for judgment on the pleadings or for summary judgment, must be used to challenge the failure to state a claim for relief." 5A Charles Wright, Arthur Miller & Mary Kay Kane, Federal Practice and Procedure § 1357 at 300-01 (2d ed. 1990) (hereinafter Federal Practice). We will therefore consider this motion under the standards for summary judgment.

 Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to summary judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). "Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Further, inferences drawn from the factual material must be viewed in the light most favorable to the party opposing the motion. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).

 Defendants argue that this Court lacks jurisdiction over the local law claims, that the issue of wrongful dispossession of real property was decided in a Superior Court case and is barred by collateral estoppel, and that there is no claim against Martha Faulkner and Ruth Humbles. All but the last of these arguments fail, and while the argument to dismiss the two sisters may ultimately have merit, summary judgment at this juncture is inappropriate.

 The first two of these arguments were presented in substantially the same form in the Motion of Defendants Leon Faulkner, Martha Faulkner and Ruth Humbles to Dismiss the Complaint Or, in the Alternative, For Summary Judgment, filed on February 24, 1989. The Court denied that motion without prejudice in an Order of May 30, 1989, stating "it appears that this Court has pendent jurisdiction over the claims asserted against these defendants." The law of the case argues against our reexamination of these objections. Law of the case is designed to promote judicial efficiency and the judicious resolution of claims. "Law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit." 18 Federal Practice § 4478 at 788 (1981); see Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 100 L. Ed. 2d 811, 108 S. Ct. 2166, 7 U.S.P.Q.2D (BNA) 1109 (1988) (promotes finality and efficiency of the judicial process).

 Judges do retain the ability to reexamine their prior rulings, especially if 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." 18 Federal Practice § 4478 at 790 (1981). Here defendants have not asserted any change in circumstances that would justify the refiling of the motion. They have not presented new evidence nor changes in controlling law. Consequently, this Court would be well within its discretion to refuse to consider the new motion to the extent it argues the same points as the earlier one. However, as the Order was issued over two years ago and did not explain the ruling, the Court will discuss the arguments raised.

 Defendants first argue that this Court is without jurisdiction over the common law tort claims. But defendants overlook the principle of pendent jurisdiction, whereby a federal court can decide issues that arise from a common nucleus of operative facts. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). *fn7" "Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims. . ." Id. at 726.

 The Court has jurisdiction over the federal question claims asserted against these defendants. At this point in the proceedings, plaintiff has made out a colorable claim of the violation of her constitutional rights by these defendants. While further examination may show that the plaintiff's claim is without merit, there are still questions of material fact as to defendants' intent that preclude a summary judgment motion. *fn8"

 In the present action, the common law claims arise from the dispossession and eviction of the plaintiff the very same set of events that produced plaintiff's constitutional tort claims. The exercise of pendent jurisdiction is within the Court's discretion and it seems clear that a single trial on this one set of events, with these parties, would be preferable to requiring them to litigate in two fora. Cf. Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 432, 93 L. Ed. 2d 781, 107 S. Ct. 766 n.12 (1987). Consequently, we will exercise pendent jurisdiction over the local law claims.

 Defendants secondly assert that the claims are barred by the principle of collateral estoppel. Basically, they argue that the issue was previously litigated in the Superior Court of the District of Columbia. While defendants might be correct if the claims were litigated, an examination of the record indicates that such litigation never took place. Plaintiff sought, and obtained, a temporary restraining order to prevent her ouster from the house for a month from the District of Columbia Superior Court. That restraining order was vacated upon the consent of both parties to permit plaintiff to stay in the house and to vacate by June 30, 1987. See Praecipe, Morgan v. Faulkner, No. 5022-87 (D.C. Super. Ct. filed June 23, 1987), Plaintiff's Opposition to Faulkner Motion Ex. E. Further, in the Praecipe, both parties agreed to withdraw certain other claims against each other, notably a small claims court case and a citizens complaint that had been filed. See id. The merits of the case were not litigated.

 Whether a dismissal constitutes an adjudication on the merits is an issue for state law. The District of Columbia Court of Appeals has held that a dismissal without prejudice does not have res judicata effect. See Interdonato v. Interdonato, 521 A.2d 1124, 1131 n.11 (D.C. 1987) ("The crucial element of res judicata is a final judgment on the merits and it is beyond dispute that a dismissal without prejudice does not determine the merits." (citation omitted)); cf. Bazata v. National Insurance Co., 400 A.2d 313, 314 (D.C. 1979) ("'At common law dismissal on a ground not going to the merits was not ordinarily a bar to a subsequent action on the same claim.'") (quoting Costello v. United States, 365 U.S. 265, 285, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961)). Indeed, Judge King of the District of Columbia Superior Court, during the hearing on June 23, 1987, expressly noted that additional litigation was probable:

 What has not been addressed today is the question of what legal rights, if any, might grow out of or still remain in the situation, which was created when, if it's accepted by a trier of fact, things happened as they are alleged to have happened, namely, that the defendants [throw] the ...

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