United States District Court, District of Columbia
March 24, 2002
M. MAUREEN POLSBY, PLAINTIFF,
TOMMY G. THOMPSON, SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.
GRANTING THE DEFENDANT'S MOTION TO DISMISS;
DENYING THE PLAINTIFF'S MOTION FOR LEAVE TO FILE
A SECOND AMENDED COMPLAINT
This matter comes before the court upon the defendant's renewed motion
and the pro se plaintiff's opposed motion for leave to file a
second amended complaint. The plaintiff, M. Maureen Polsby, M.D., brings
this action against Tommy G. Thompson in his official capacity as the
Secretary of the Department of Health and Human Services ("the defendant"
or "HHS"), claiming post-employment retaliation and discrimination based
on her previous assertion of sex discrimination against the defendant
under Title VII. The defendant moves the court to dismiss the
plaintiff's case because it is barred by res judicata due to the
plaintiff's earlier cases and because this court does not have venue to
consider the claims. The defendant also opposes the plaintiff's motion
for leave to amend her complaint, arguing that the amendment is futile.
For the reasons that follow, the court grants the defendant's renewed
motion to dismiss and denies the plaintiff's motion for leave to file a
second amended complaint.
A. Polsby I
The plaintiff originated her line of cases filed in federal district
courts in 1988 with a complaint against HHS (hereinafter "Polsby I")
alleging employment discrimination and acts of reprisal in violation of
Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e. See Polsby I Mem. Op. dated Apr. 20, 1995 at 2
n. 2 (citing Civ. No. 88-2344 (D.Md.) (Chasonow, J.)). Subsequently, the
plaintiff filed two additional civil actions against HHS, alleging
substantively similar matters of discrimination and reprisal. See id.
(citing Civ. No. 93-857 (D.Md.) (Chasonow, J.) and Civ. No. 94-3078
(D.Md.) (Chasonow, J.)). United District Judge Chasanow consolidated the
plaintiff's complaints and adjudicated all the pending claims in a trial
ending in March 1996. See Polsby v. Shalala, 925 F. Supp. 379, 382
(D.Md. 1996) (final ruling in Polsby I). In Polsby I, Judge Chasanow
granted the plaintiff leave to file seven supplemental documents: three
supplements to the complaints, three supplements to the oppositions to
defendant's motions to dismiss, and one surreply in support of the
opposition. See Polsby I Mem. Op. dated Apr. 20, 1995 at 2 n. 2 (granting
the plaintiff's motion for partial summary judgment). After the trial in
March 1996, Judge Chasanow ruled for the defendant, determining that
there had been no gender discrimination. See Polsby, 925 F. Supp. at
B. Polsby II
After the Polsby I trial concluded, the plaintiff filed a complaint
(hereinafter "Polsby II") in the United States District Court for the
District of Columbia, alleging a conspiracy among members of the federal
government to pre-arrange an adverse outcome of Dr. Polsby's original
employment-discrimination case. See Polsby II Am. Compl. at 2. The
complaint alleged many of the same facts as those alleged in Polsby I.*fn1
See id.; Polsby, 925 F. Supp. at 379. United States District Judge
Kennedy granted the plaintiff leave to amend her complaint three times in
Polsby II. See Docket for Polsby v. Milkulski, Civ. No. 97-0611 (D.D.C.)
(Kennedy, J.). In Polsby II, because the plaintiff "alleged no facts,
reason, or motive to support her conspiracy theories," she failed to
state a claim on which relief could be granted. See Polsby II Mem. Op.
dated July 12, 1999 at 3, 7;
FED. R. CIV. P. 12(b)(6). Judge Kennedy
also determined that Dr. Polsby did not have standing under Article III
of the Constitution. See Polsby II Mem. Op. dated July 12, 1999 at 4.
Thus, Judge Kennedy granted the federal defendants' motion to dismiss
Dr. Polsby's complaint. See Polsby II Order dated July 12, 1999 at 1.
C. The Pending Case
Dr. Polsby initiated the present case by filing yet another complaint
in federal district court on February 12, 2001. In the instant matter,
the court has already granted one motion by the plaintiff for leave to
amend her complaint, filed in response to the defendants' motion to
dismiss. See Order dated Nov. 8, 2001 at 1. In response, the defendant
filed a renewed motion to dismiss arguing res judicata and lack of
venue, which Dr. Polsby opposes. The plaintiff seeks leave to file a
second amended complaint, and the defendant opposes this motion because
the defendant views the amendment as futile. On March 19, 2002, the
court ordered the defendant to file a supplement to its motion. See
Order dated March 19, 2002. On March 24, 2002, the defendant filed the
supplement and, on March 28, 2002, the plaintiff responded.
A. Legal Standard for Res Judicata
Res judicata bars a claim when there has been a final judgment on the
merits in a prior suit involving the same parties or their privies and
the same cause of action. See I.A.M. Nat'l Pension Fund v. Indus. Gear
Mfg. Co., 723 F.2d 944, 946-47 (D.C. Cir. 1983). The four factors that
must exist for res judicata to apply are (1) an identity of parties in
both suits; (2) a judgment rendered by a court of competent
jurisdiction; (3) a final judgment on the merits; and (4) the same cause
of action in both suits. See Brannock Assocs., Inc. v. Capitol 801
Corp., 807 F. Supp. 127, 134 (D.D.C. 1992) (citing U.S. Industries, Inc.
v. Blake Constr. Co., 765 F.2d 195, 205 n. 21 (D.C. Cir. 1985)). The
purpose of res judicata is 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.
Determining whether a particular ruling fulfills each factor necessary
for res judicata to apply requires a careful assessment of what each
factor demands. First, a nonparty may be in privity with a party to the
prior action if the nonparty's interests are "adequately represented by a
party to the original action." See American Forest Res. Council v. Shea,
172 F. Supp.2d 24, 31 (D.D.C. 2001) (quoting Tyus v. Schoemehl,
93 F.3d 449, 454 (8th Cir. 1996)). Also, the doctrine of res judicata
applies to all the parties' rights regarding matters that could have been
litigated as well as those matters that were actually litigated. See
I.A.M. Nat'l Pension Fund, 723 F.2d at 947. Finally, for res judicata to
apply, the court must have made a final ruling based on the merits of the
case. See U.S. Indus., 765 F.2d at 205-06. A traditional judgment on
the merits of a case is one that disposes of the underlying cause of
action. See Cromwell v. County of Sac, 94 U.S. 351, 352 (1877). More
generally, a judgment is considered on the merits when a court renders a
decision after considering the legal claim. See Harper Plastics, Inc.
v. Amoco Chems. Corp., 657 F.2d 939, 943 (7th Cir. 1981); 18 Moore's
Federal Practice § 131.30 [a] (3d ed. 2000). In other words, a
ruling is a judgment on the merits if it "is based on legal rights as
distinguished from mere matters of practice,
procedure, jurisdiction, or
form." Id. (quoting Fairmont Aluminum Co. v. Comm'r, 222 F.2d 622, 625
(4th Cir. 1955)).
B. Res Judicata Bars the Plaintiff from Bringing this Claim
The defendant argues that res judicata applies in this case and serves
to preclude the plaintiff's instant action. See Renewed Mot. to Dismiss
at 1; Def.'s Supplemental Mem. at 4-9. The plaintiff responds by
admitting that the Polsby I and Polsby II courts adjudicated her original
employment claims and related conspiracy claims, but argues that the
instant case concerns post-employment discrimination and retaliation
claims that were not adjudicated and therefore are not barred. See Pl.'s
Reply to Def.'s Opp'n to Pl.'s Mot. to Amend Pleading ("Pl.'s Reply") at
2; Pl.'s Reply to Def.'s Supplemental Mem. at 1-3. The plaintiff also
argues that her instant claim involves different defendants. See Pl.'s
Reply at 4. The parties do not dispute the fact that courts of competent
jurisdiction decided Polsby I and Polsby II. Thus, out of the four
factors, the factors in dispute are (1) the identity of the parties, (3)
the finality of the judgments on the merits, and (4) the same cause of
action. See Brannock Assocs., Inc., 807 F. Supp. at 134. The court
addresses each issue in turn.
1. Identity of Parties in Polsby I, Polsby II, and this Claim
For purposes of res judicata, courts have long held that "parties
nominally different may be, in legal effect, the same." Sunshine
Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402 (1940); see also 18
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 4449 (3d ed. 2001). For purposes of res judicata, there is privity
between a government and its officers. See Sunshine Anthracite Coal
Co., 310 U.S. at 402-03.
In Polsby I, Dr. Polsby brought claims against Donna E. Shalala in her
official capacity as Secretary of the Department of Health and Human
Services. See Polsby, 925 F. Supp. at 381. In Polsby II, Dr. Polsby
named multiple officials of the United States Federal Government and the
Maryland Democratic Party as defendants. See Polsby II Mem. Op. dated
July 12, 1999 at 1. Here, Dr. Polsby raises claims against defendant
Tommy G. Thompson in his official capacity as Secretary of the United
States Department of Health and Human Services. See Am. Compl. at 3.
These officials are all in privity with the United States as its officers
and in its legal interests. See Sunshine Anthracite Coal Co., 310 U.S.
at 402-03. Consequently, for purposes of res judicata, all three cases
involve the same defendant.
2. Polsby I and Polsby II Resulted in Final Judgments on the Merits
Dismissal for failure to state a claim on which relief can be granted
under Rule 12(b)(6) operates as as "a resolution on the merits and is
ordinarily prejudicial." See Okusami v. Psychiatric Inst. of
Washington, Inc., 959 F.2d 1062, 1066 (D.C. Cir. 1992); Federated Dep't
Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3 (1981). Consequently,
because Judge Kennedy based the Polsby II dismissal in part on the
plaintiff's failure to state a claim, it serves as a judgment on the
merits for purposes of res judicata.*fn2
See Polsby II Mem. Op. dated
July 12, 1999 at 4; Okusami, 959 F.2d at 1066.
Likewise, in Polsby I, Judge Chasanow presided over a trial and then
rendered a final judgment resolving the merits of Dr. Polsby's
complaint, determining that there had been neither discrimination nor
post-employment acts of retaliation. See Polsby, 925 F. Supp. at 382,
3. The Present Claim and the Claims Raised in Polsby I and II
Involve the Same Cause of Action
To determine whether cases involve the same cause of action, the D.C.
Circuit has adopted the "pragmatic, transactional" approach found in the
Restatement (Second) of Judgments § 23(2) (1982). See U.S. Indus.,
765 F.2d at 205. Under the transactional approach, the court considers
"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." Id. at 205; see I.A.M. Nat'l Pension Fund, 723 F.2d at 949 n.
5. Likewise, the D.C. Circuit has pointed out that a critical issue is
whether a petitioner has previously had an opportunity to present
evidence on her claims. See U.S. Indus., 765 F.2d at 206 (citations
In the instant matter, the plaintiff asserts Title VII and retaliation
claims that were brought or could have been brought in Polsby I or Polsby
II. First, any and all claims arising from the alleged discriminatory
acts that existed before March 1996 could have been brought during the
Polsby I trial. For example, the plaintiff's claim that the National
Institutes of Health ("NIH") retaliated against her by denying her
admission to the board-certification exam arose in June 1995 and could
have been raised before the Polsby I trial ended. See First Am. Compl. ¶
44(f). The same set of events that served as the basis for the
plaintiff's Title VII discrimination and retaliation claims in Polsby I,
namely, NIH's refusal to continue Dr. Polsby's employment, serve as the
basis for this claim of retaliation and Dr. Polsby's other claims of
post-employment retaliation. Because the plaintiff's currently pending
post-employment retaliation claims arise from the same transaction from
which her Polsby I claims arose, the doctrine of res judicata bars these
claims. See U.S. Indus., 765 F.2d at 205.
Second, the plaintiff's vague claims concerning additional
post-employment acts of retaliation that may have occurred after March
1996 could have been raised in Polsby II, which was not adjudicated until
July 1999. See First Am. Compl. ¶¶ 44(f), 44(h). The plaintiff asserts
similar facts as relevant in her present complaint and in her Polsby II
complaint. See id. at 4-15; Polsby II First Am. Compl. at 7-24.*fn3
Dr. Polsby's vague claim that "numerous other post-employment acts of
retaliation and discrimination" occurred merely describes the same issues
she brought in Polsby II and does not raise a specific, new cause of
action that could not have been addressed in that same case. See First
Am. Compl. at ¶ 44(h). Even if Dr. Polsby's claims are not identical to
those Dr. Polsby brought in Polsby II, they still arose from the same
"transaction or occurrence" and thus do not merit further consideration
by the court. See U.S. Indus., 765 F.2d at 205.
Finally, it is an established principle of res judicata that "even
one group of facts may give rise to different claims for relief,
upon different theories of recovery, there remains a single cause of
action." Prochotsky v. Baker & McKenzie, 966 F.2d 333
, 335 (7th Cir.
1992) (internal citations omitted); see also Charles Alan Wright & Arthur
Miller, Federal Practice and Procedure § 4411 (3d ed. 2001) ("[a]
second action may be precluded on the ground that the same claim or cause
of action was advanced in the first action even though a different source
of law is involved"). The plaintiff asserts a change of law, in which
the Supreme Court held that Title VII protects former employees, as a
basis for the present complaint. See First Am. Compl. at ¶ 14-16;
Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). This change
occurred, however, during the pendency of Dr. Polsby's appeal of Judge
Chasanow's decision in Polsby I. The Fourth Circuit considered the
change of law in Robinson, found that any error was harmless, and
affirmed Judge Chasanow's decision that the evidence failed to prove
post-employment retaliation. See Polsby v. Chase, 165 F.3d 19
1998 WL 738453 (4th Cir. 1998). Finally, any other issue surrounding the
change of law could have been raised in Polsby II, wherein Dr. Polsby
amended her complaint three times. See Docket for Polsby v. Mikulski,
Civ. No. 97-0611 (D.D.C.). Because the doctrine of res judicata dictates
that "once a transaction has caused injury, all claims arising from that
transaction must be brought in one suit or be lost," Polsby I and Polsby
II bar the plaintiff's claims. See Car Carriers, Inc. v. Ford Motor
Co., 789 F.2d 589
, 593 (7th Cir. 1986).
C. Legal Standard for Leave to Amend a Complaint
Federal Rule of Civil Procedure 15(a) provides that a "party may amend
the party's pleading once as a matter of course at any time before a
responsive pleading is served. . . ." FED. R. CIV. P. 15(a). Once a
responsive pleading is filed, "a party may amend the party's pleading
only by leave of the court or by written consent of the adverse party;
and leave shall be freely given when justice so requires." Id.; see also
Foman v. Davis, 371 U.S. 178, 182 (1962). The D.C. Circuit has held that
for a trial court to deny leave to amend is an abuse of discretion unless
the court provides a sufficiently compelling reason, such as "undue
delay, bad faith, or dilatory motive . . . repeated failure to cure
deficiencies by [previous] amendments [or] futility of amendment."
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (quoting
Foman, 371 U.S. at 182).
A court may deny a motion to amend a complaint as futile when the
proposed complaint would not survive a motion to dismiss. See James
Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996) (citations
omitted). When a court denies a motion to amend a complaint, the court
must base its ruling on a valid ground and provide an explanation. See
id. "An amendment is futile if it merely restates the same facts as the
original complaint in different terms, reasserts a claim on which the
court previously ruled, fails to state a legal theory, or could not
withstand a motion to dismiss." 3 Moore's Federal Practice §
15.15 (3d ed. 2000). If a litigant is pro se, however, that litigant
should receive more latitude than parties represented by counsel "to
correct defects in service of process and pleadings." See Moore v.
Agency for Int'l Dev., 994 F.2d 874, 876 (citing Haines v. Kerner,
404 U.S. 519, 520 (1972)).
D. The Court Denies the Plaintiff's Motion
for Leave to File a Second Amended Complaint
The plaintiff has received ample latitude to amend her complaints. In
this case, the court granted Dr. Polsby leave to amend her complaint
once. In her prior lawsuits, Polsby I and Polsby II, she amended or
supplemented her complaints at least five times. See Polsby I Mem. Op.
dated Apr. 20, 1995 at 2 n. 2; Docket for Polsby v. Mikulski, Civ. No.
The court denies the plaintiff's motion for leave to file a second
amended complaint because such amendment would be futile. See
Firestone, 76 F.3d at 1208. The plaintiff's proposed second amendment
makes only minor corrections to the caption and adds language in an
attempt to show that venue is proper in this court. See Pl.'s Mot. for
Leave to File Second Am. Compl. at 2. Even with these changes, the
claims would not overcome the defendant's motion to dismiss based on res
judicata. If the court were to grant leave to the plaintiff to file her
proposed second amended complaint, the doctrine of res judicata would
apply with equal force and the court would reach the same conclusion that
it reaches with respect to the plaintiff's instant complaint.
Therefore, the plaintiff's proposed amendment would be futile, and the
court denies her motion for leave to file a second amended complaint.
For all these reasons, the court grants the defendant's renewed motion
to dismiss*fn4 and denies the plaintiff's motion for leave to file a
second amended complaint. An order directing the parties in a manner
consistent with this Memorandum Opinion is separately and
contemporaneously issued this ___ day of April 2002.
GRANTING THE DEFENDANT'S MOTION TO DISMISS;
DENYING THE PLAINTIFF'S MOTION FOR LEAVE TO FILE
A SECOND AMENDED COMPLAINT
For the reasons stated in this court's Memorandum Opinion separately and
contemporaneously issued this ___ day of April 2002, it is
ORDERED that the defendant's renewed motion to dismiss is GRANTED; and
FURTHER ORDERED that the plaintiff's motion for leave to file a second
amended complaint is DENIED.