United States District Court, D. Columbia
August 17, 2005.
EMANUEL JOHNSON, JR., Plaintiff,
JOHN ASHCROFT, et. al. Defendants.
The opinion of the court was delivered by: RICARDO URBINA, District Judge
DENYING IN PART AND GRANTING IN PART THE DEFENDANTS' MOTION TO
DISMISS THE COMPLAINT
The pro se plaintiff, Emanuel Johnson, Jr., brings a
constitutional torts claim against various employees of the
District of Columbia. Specifically, the plaintiff sues the
following D.C. employees in their official and individual
capacities: Kelvin Robinson, Barrett Prettyman, Charles Maddox,
Austin Anderson, Karen Branson, Judy Banks, Gail Davis, Teresa
Quon, David Jackson, Terry Wyllie, and John A. Koskinen
(collectively, the "D.C. defendants").*fn1
sues D.C. defendants Prettyman and Wyllie for allegedly
interfering with his employment relationship with the D.C. Office
of the Inspector General ("OIG"). The plaintiff sues the
remaining D.C. defendants for allegedly submitting false evidence
in a related proceeding. This matter is before the court on the
D.C. defendants' motion to dismiss the complaint for failure to effect timely service and for failure to
comply with the applicable statutes of limitations. Because the
plaintiff makes a cognizable claim against Prettyman and Wyllie,
the court denies the defendant's motion to dismiss the claims
against them. Because the claims against Davis, Quon, Jackson,
Maddox, Andersen, Branson, Koskinen, Robinson and Banks are
barred by res judicata, the court grants the motion to dismiss as
to those defendants.
A. Factual History
The plaintiff, an African-American male, worked as a special
agent with the FBI between 1973 and 1999. Compl. at 13. During
that time, the plaintiff was a named plaintiff in a Title VII
class action lawsuit filed in the United States District Court
for the District of Columbia by African-American special agents
against the FBI. Id. at 26. That lawsuit, commonly known as the
BADGE lawsuit, settled in 1993. Id.; Mem. in Support of Pl.'s
Opp'n to Defs.' Mot. to Dismiss ("Pl.'s Opp'n") at 4. After
retiring from the FBI, the plaintiff began working as a special
agent with the OIG. Pl.'s Opp'n at 3-4. Although it is unclear
from the plaintiff's complaint, it seems that the plaintiff
applied to work at the OIG twice: once in 1998 and once in
1999.*fn2 Compl. at 4, Ex. E. In Counts III and IV of the plaintiff's complaint,*fn3 the
plaintiff alleges that D.C. defendants Prettyman and Wyllie
conspired to interfere, and did interfere, with his employment
relationship with the OIG. Id. at 25-71. Specifically, the
plaintiff alleges that Wyllie spread rumors about him and that he
was not selected for a position at the OIG in 1998 as a result.
Id. at 67-68. The plaintiff further alleges that Prettyman
improperly considered racially-charged statements made by federal
defendant Carter in his decision not to hire the plaintiff in
1998. Pl.'s Opp'n at 4, Ex. E. The plaintiff claims that he found
out about Wyllie's and Prettyman's actions after on April 14,
2003, when he heard Richard Sullivan's testimony at a trial
related to the plaintiff's termination from the OIG, Johnson v.
Ashcroft et al., No. 00-cv-2743. Pl.'s Opp'n at 2-3, 8, Ex. E.
The remaining counts of the plaintiff's complaint allege that
some of the D.C. defendants provided false evidence to the court
during the proceedings surrounding his termination from the OIG
after he was hired in 1999. Compl. 72-74. The plaintiff contends
that the false evidence, consisting of a trial exhibit and an
affidavit, resulted in an adverse ruling in Johnson v. Ashcroft
et al., No. 00-cv-2743, on July 9, 2003. Compl. at 73-74; Pl.'s
Opp'n at 8.
B. Procedural History
The plaintiff filed the complaint in the current action on July
9, 2004. The plaintiff claims that he executed requests for
waiver of service as to the D.C. defendants in the early part of
November 2004. Pl.'s Opp'n at 5. Defendant Banks returned a
signed request for a waiver of service on November 13, 2004, id. at 2, and was the only D.C.
defendant to return the request for waiver of service. See
Compl. at 6; Def.'s Mot. at 5.
The D.C. defendants filed a motion to dismiss the complaint on
December 21, 2004 because the plaintiff failed to effect timely
service. Additionally, the D.C. defendants claim that the
plaintiff's complaint is time barred by the applicable statute of
limitations. The court now turns to the defendants' motion.
A. Failure to Effect Timely Service
The defendants first argue that the complaint should be
dismissed because the plaintiff did not effect timely service on
the D.C. defendants, as required by Federal Rule of Civil
Procedure 4(m). Defs.' Mot. at 4. The court agrees that the
plaintiff failed to effect timely service. But, because this
Circuit gives wide latitude to pro se plaintiffs and because
the D.C. defendants have not been prejudiced by the late service,
the court, in its discretion, declines to dismiss the plaintiff's
complaint for failure to timely serve the defendants.
1. Legal Standard for a Rule 12(b)(5) Motion to Dismiss for
Insufficient Service of Process
A party can move the court to dismiss a complaint under Federal
Rule of Civil Procedure 12(b)(5) for insufficient service of
process. "[T]he party on whose behalf service is made has the
burden of establishing its validity when challenged; to do so, he
must demonstrate that the procedure employed satisfied the
requirements of the relevant portions of Rule 4 and any other
applicable provision of law." Light v. Wolf, 816 F.2d 746, 751
(D.C. Cir. 1987) (internal quotations omitted); Hilsaka v.
Jones, 217 F.R.D. 16, 20 (D.D.C. 2003). Rule 4 governs service of process. FED. R. CIV. P. 4. Rule 4(m)
provides the time limits for service and the consequences of
failing to provide proper service. It states that:
[i]f service of the summons and complaint is not made
upon a defendant within 120 days after the filing of
the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall
dismiss the action without prejudice as to that
defendant or direct that service be effected within a
specified time; provided that if the plaintiff shows
good cause for the failure, the court shall extend
the time for service for an appropriate period.
FED. R. CIV. P. 4(m). Thus, where the plaintiff fails to effect
proper service within the 120-day time limit laid down by Rule
4(m), the plaintiff carries the burden of showing good cause for
that failure. FED. R. CIV. P. 4(m); Whitehead v. CBS/Viacom,
Inc., 221 F.R.D. 1, 3 (D.D.C. 2004). Even if the plaintiff does
not show good cause, the court may, in its discretion, direct the
plaintiff to effect service within a certain time rather than
dismiss the case. FED. R. CIV. P. 4(m). Ultimately, however,
unless the procedural requirements of effective service of
process are satisfied, a court lacks power to assert personal
jurisdiction over a defendant. Gorman v. Ameritrade Holding
Corp., 293 F.3d 506
, 514 (D.C. Cir. 2002) (citing Omni Capital
Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97
2. The Plaintiff Failed to Effect Timely Service
The plaintiff argues that, although he filed his complaint on
July 9, 2004, the period for service of process did not begin to
run until July 15, 2004, the day the plaintiff received the
signed summonses from the clerk of the court. Pl.'s Opp'n at 4-5.
The plaintiff's argument, however, is entirely without merit.
Rule 4(m) explicitly states that the complaint and the summons
must be served "within 120 days after the filing of the
complaint." FED. R. CIV. P. 4(m) (emphasis added). The rule does
not carve out any exceptions based on the date that the clerk signs the summons. Accordingly, the deadline for service
was November 6, 2004. Because the plaintiff did not serve the
requests for waiver of service until after that date, Pl.'s Opp'n
at 4; Pl.'s Opp'n to Defs.' Supp. at 2, he failed to serve the
defendants in a timely manner.*fn4
3. The Court Declines to Dismiss the Case Based on the
Plaintiff's Failure to Effect Proper Service
Notwithstanding the plaintiff's failure to effect timely
service on the D.C. defendants, the court does not dismiss the
complaint in its entirety. The court's decision is based on the
following: (1) the plaintiff effected service within a few days
of the deadline, (2) the defendants have not claimed that they
were prejudiced by the delay in effecting service, and (3) the
plaintiff is litigating this case pro se.
When a plaintiff fails to effect proper service without showing
good cause, Rule 4(m) entrusts courts with the discretion to
either dismiss the case or to direct the plaintiff to perfect
service within a prescribed period of time. FED. R. CIV. P. 4(m).
Factors that a court may consider in exercising its discretion
include: (1) whether the defendants show any actual harm on the
merits of the suit caused by the delay in service; (2) whether it
is likely that the defendants received actual notice of the suit
within a short time after the attempted service; and (3) whether dismissal without prejudice will effectively equal dismissal with
prejudice because the statute of limitations has run after the
filing of the suit. Coleman v. Milwaukee Bd. of Sch. Dirs.,
290 F.3d 932, 934 (7th Cir. 2002); see also Panaras v. Liquid
Carbonic Ind. Corp., 94 F.3d 338, 340 (7th Cir. 1996). This
court, in previous cases, has attempted to balance the hardships
that the plaintiff and the defendants face. Wilson v. Prudential
Fin., 332 F.Supp.2d 83, 89 (D.D.C. 2004) (granting an extension
of time to perfect service where there was no great prejudice to
the defendant). The D.C. defendants in this case have not claimed
that they were prejudiced by the late service. Also, the D.C.
defendants likely received actual notice when Banks returned the
waiver of service request after the service deadline had passed.
Further, pro se plaintiffs are generally subject to less
stringent standards in filing and maintaining their lawsuits than
those plaintiffs who are represented by lawyers. Haines v.
Kerner, 404 U.S. 519, 520 (1972) (holding that a pro se
complaint is subject to less stringent standards than formal
pleadings drafted by attorneys). This circuit also affords pro
se plaintiffs latitude with regards to service issues. The D.C.
Circuit has held that "[p]ro se litigants are allowed more
latitude than litigants represented by counsel to correct defects
in service of process and pleading." Moore v. Agency for Int'l
Dev., 994 F.2d 874, 876 (D.C. Cir. 1993). In Moore, the court
emphasized the "importance of providing pro se litigants with
the necessary knowledge to participate effectively in the trial
process," and concluded that while the courts "do not need to
provide detailed guidance to pro se litigants . . . [they] should
supply minimal notice of the consequence of not complying with
procedural rules." Id.; see also Hilska v. Jones,
217 F.R.D. 16, 22 (D.D.C. 2003) (declining to dismiss the pro se
plaintiff's complaint without minimal notice of the consequence
of his failure to effect proper service). Accordingly, the court declines to dismiss the plaintiff's complaint based on the
failure to effect timely service.
B. The Statute of Limitations
The defendants also argue that this court should dismiss the
plaintiff's claims because they are barred by the statute of
limitations. Defs.' Mot. at 6. The defendants state that the
plaintiff's claims against Prettyman and Wyllie are based on
42 U.S.C. § 1986, which has a one-year statute of limitations, and
that the claims against the other D.C. defendants are based on
42 U.S.C. § 1983, which has a three-year statute of limitations.
Id. As fully set forth below, the court rules that the
plaintiff's claims are not barred by the applicable statute of
1. Legal Standard for Rule 12(b)(6) and Statute of Limitations
A defendant may raise the affirmative defense of statute of
limitations via a Rule 12(b)(6) motion when the facts that give
rise to the defense are clear from the face of the complaint.
Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C.
Cir. 1998). Because statute of limitations issues often depend on
contested questions of fact, however, the court should hesitate
to dismiss a complaint on statute of limitations grounds based
solely on the face of the complaint. Firestone v. Firestone,
76 F.3d 1205, 1209 (D.C. Cir. 1996). Rather, the court should grant
a motion to dismiss only if the complaint on its face is
conclusively time-barred. Id.; Doe v. Dep't of Justice,
753 F.2d 1092, 1115 (D.C. Cir. 1985). If "no reasonable person could
disagree on the date" on which the cause of action accrued, the
court may dismiss a claim on statute of limitations grounds.
Smith v. Brown & Williamson Tobacco Corp., 3 F. Supp. 2d 1473,
1475 (D.D.C. 1998) (citing Kuwait Airways Corp. v. Am. Sec.
Bank, N.A., 890 F.2d 456, 463 n. 11 (D.C. Cir. 1989)). 2. The Plaintiff's Claims Against Prettyman and Wyllie are not
Barred by the Applicable Statute of Limitations
The defendants' argument that the plaintiff's claims against
Prettyman and Wyllie are brought under 42 U.S.C. § 1986,*fn5
and hence barred by its one year statute of limitations, is
incorrect. The plaintiff claims that he was not selected for a
job at the OIG in 1998 because Prettyman and Wyllie were
concerned that he might create "racial problems." Pl.'s Opp'n,
Ex. E. Actions alleging employment discrimination on the basis of
race may be brought under § 1981, which has a four-year statute
of limitations. Jones v. R.R. Donnelly & Sons Co.,
541 U.S. 369, 373, 383 (2004) (holding that a hostile work environment
claim was governed by § 1981 and explaining that § 1981 claims
are governed by a four year statute of limitations); Saint
Francis College v. Al-Khazraji, 481 U.S. 604, 609 (1987) (noting
that § 1981 applies to claims of racial discrimination).
Additionally, the statute of limitations period begins to run
when a plaintiff, "in the exercise of due diligence," would
become aware of the defendant's actions. Connors v. Hallmark &
Sons Coal Co., 935 F.2d 336, 343 (D.C. Cir. 1991). See also
United States v. Kubrick, 444 U.S. 111, 122-24 (1979) (holding
that for a cause of action to accrue, the plaintiff must know
that he has been hurt and who inflicted the injury). The
plaintiff alleges that he found out about Prettyman and Wyllie's
acts of racial discrimination only upon hearing sworn testimony
in April 2003. Pl.'s Opp'n at 8. Because the plaintiff filed his
complaint in July 2004, the plaintiff asserted his claim well
within the four year statute of limitations. Accordingly, the
plaintiff's allegations against Prettyman and Wyllie were timely
filed. 3. The Plaintiff's Claims Against the Other D.C. Defendants are
not Barred by the Statute of Limitations.
The plaintiff's claims against Davis, Quon, Jackson, Maddox,
Andersen, Branson, Koskinen, Robinson and Banks are based on
42 U.S.C. § 1983. Pl.'s Opp'n at 8-9. Section 1983 has a three-year
statute of limitations. Singletary v. District of Columbia,
351 F.3d 519, 529 n. 11 (D.C. Cir. 2003). The defendants argue that
the claims against these defendants are untimely because "the
most recent alleged action occurred on May 10, 2000." Defs.' Mot.
at 6. The plaintiff, however, contends that he did not become
aware of these defendants' wrongful acts until Sullivan's
testimony in a related matter in April 2003. Pl.'s Opp'n at 8.
Because at this stage of the proceedings the court must construe
all material facts in the complaint in favor of the plaintiff,
Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir.
2003), the court accepts as true that the statute of limitations
began to run in April 2003. Because the plaintiff filed his
complaint on July 2004, his claims against Davis, Quon, Jackson,
Maddox, Andersen, Branson, Koskinen, Robinson and Banks are not
barred by the statute of limitations.
C. Res Judicata
Although the court does not rule that the claims against Davis,
Quon, Jackson, Maddox, Andersen, Branson, Koskinen, Robinson and
Banks are barred by the statute of limitations, the court
determines that the plaintiff's claims against these defendants
are nevertheless barred by res judicata. In Counts VI-X, the
plaintiff claims that defendants Davis, Quon, Maddox, Andersen,
and Branson had a role in submitting a false affidavit to
Magistrate Judge Facciola in the civil action 00-2743. Compl. at
72-73. In Counts XI and XII, the plaintiff claims that defendants
Davis, Quon, Jackson, Maddox, Andersen, Branson, Koskinen,
Robinson and Banks entered a "false letter" as a trial exhibit in
the same proceedings. Compl. at 73-74. As discussed below, the plaintiff's indirect attack on a previous adverse ruling is
barred by the doctrine of res judicata.
1. Legal Standard for Res Judicata
"The doctrine of res judicata prevents repetitious litigation
involving the same causes of action or the same issues." I.A.M.
Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 946
(D.C. Cir. 1983). Res judicata has two distinct aspects claim
preclusion and issue preclusion (commonly known as collateral
estoppel) that apply in different circumstances and with
different consequences to the litigants. NextWave Pers.
Communications, Inc. v. Fed. Communications Comm'n,
254 F.3d 130, 142 (D.C. Cir. 2001) (citing id.); Novak v. World Bank,
703 F.2d 1305, 1309 (D.C. Cir. 1983). Under claim preclusion, "a
final judgment on the merits of an action precludes the parties
or their privies from relitigating issues that were or could have
been raised in that action." Drake v. Fed. Aviation Admin.,
291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Allen v. McCurry,
449 U.S. 90, 94 (1980)). Under issue preclusion or collateral
estoppel, "once a court has decided an issue of fact or law
necessary to its judgment, that decision may preclude
relitigation of the issue in a suit on a different cause of
action involving a party to the first case." Yamaha Corp. of Am.
v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (quoting
Allen, 449 U.S. at 94). In short, "claim preclusion forecloses
all that which might have been litigated previously," while issue
preclusion "prevents the relitigation of any issue that was
raised and decided in a prior action." I.A.M. Nat'l Pension
Fund, 723 F.2d at 949; Novak, 703 F.2d at 1309. In this way,
res judicata helps "conserve judicial resources, avoid
inconsistent results, engender respect for judgments of
predictable and certain effect, and ? prevent serial
forum-shopping and piecemeal litigation." Hardison v.
Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981); see also
Allen, 449 U.S. at 94. Because "res judicata belongs to courts as well as to
litigants," a court may invoke res judicata sua sponte. Stanton
v. D.C. Ct. of Appeals, 127 F.3d 72, 77 (D.C. Cir. 1997); see
also Tinsley v. Equifax Credit Info. Servs., Inc., 1999 WL
506720, at *1 (D.C. Cir. 1999) (per curiam) (noting that a
district court may apply res judicata upon taking judicial notice
of the parties' previous case).
2. The Plaintiff's Claims are Barred by Res Judicata
Perhaps because he has already lost on appeal, the plaintiff
does not bring a direct attack on Judge Facciola's ruling.
Instead, he brings a claim against some of the D.C. defendants
alleging that they submitted a false affidavit and a false trial
exhibit that led to the adverse ruling. Compl. 72-74.
The plaintiff's indirect attack on a previous adverse ruling is
nothing more than an attempt to relitigate the claim that he was
improperly discharged from the OIG. The plaintiff's own complaint
states that he became aware of the facts surrounding the
allegedly false affidavit in April 2003, Pl.'s Opp'n at 8, before
Judge Facciola issued a ruling on July 9, 2003.*fn6 While
the plaintiff has not submitted much information with respect to
the allegedly false trial exhibit submitted by the D.C.
defendants, the court notes that the plaintiff never filed a Rule
60(b) motion alleging that Judge Facciola based his decision on
either a false affidavit or a false trial exhibit. See Russell
v. Sunamerica Secur., Inc., 962 F.2d 1169, 1176-77 (5th Cir.
1992) (noting that a "collateral attack on the validity of the prior judgment
is improper. While fraudulent procurement of a prior judgment may
indeed preclude the application of res judicata, the party
claiming fraud should address this claim to the court which
rendered the first judgment." (citing 18 C. WRIGHT, A. MILLER &
E. COOPER § 4415, at 129; Restatement (Second) of Judgments §§
26, 78-82 (1981)).
As a result, the court interprets the plaintiff's claim as
nothing more than an attack on the previous adverse ruling. See
Henry v. Farmer City State Bank, 808 F.2d 1228, 1235 (7th Cir.
1986) (holding that the plaintiff's claim based on allegedly
fraudulent documents was barred on res judicata grounds because
the plaintiff did not assert that the documents were fraudulent
in a previous suit). This court echoes the sentiment expressed in
Griffin v. Fed. Deposit Ins. Corp., 831 F.2d 799, 803 (8th Cir.
1987): "A litigant may not sit idly by during the course of
litigation and then seek to present additional defenses in the
event of an adverse outcome . . . the [plaintiff] had [his] day
in court." Accordingly, the court sua sponte dismisses the
plaintiff's claims against D.C. defendants Davis, Quon, Jackson,
Maddox, Andersen, Branson, Koskinen, Robinson and Banks on res
judicata grounds.*fn7 IV. CONCLUSION
For the foregoing reasons, the court grants in part and denies
in part the defendants' motion to dismiss. Accordingly,
defendants Davis, Quon, Jackson, Maddox, Andersen, Branson,
Koskinen, Robinson and Banks are dismissed from this suit. An
order consistent with this Memorandum Opinion is separately and
contemporaneously issued this 17th day of August 2005.
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