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Debra Dorsey v. Jacobson Holman Pllc et al

February 18, 2010

DEBRA DORSEY, PLAINTIFF,
v.
JACOBSON HOLMAN PLLC ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

This is the second action filed in this Court by Plaintiff Debra Dorsey against Defendants. The first-filed action, Dorsey v. Jacobson Holman PLLC, 09-cv-1085 (RMC) ("Dorsey I"), remains pending. Both lawsuits address the same set of facts relating to Ms. Dorsey's leave status and separation from employment. In this case ("Dorsey II"), Ms. Dorsey advances three counts against the law firm, its profit-sharing plan, and certain of its members ("Defendants"): (1) Count I alleges a failure to make contributions to the Jacobson Holman profit-sharing plan on her behalf at the end of 2007 and a related breach of fiduciary duty; (2) Count II alleges a failure to provide Ms. Dorsey with timely notice under the American Recovery and Reinvestment Act of 2009 ("ARRA"), Pub. L. No. 111-5, 123 Stat. 115 (2009), and the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), Pub. L. No. 99-272, 100 Stat. 82 (1986), regarding continuation health coverage and subsidized premium information after her separation from employment;*fn1 and (3) Count III alleges interference with Ms. Dorsey's rights under ERISA, 29 U.S.C. §§ 1001, et seq., when the law firm required Ms. Dorsey to submit a letter of resignation in order to receive "documents that would permit her to take a distribution from the [profit-sharing] plan when she was disabled, which she was." See Dorsey II, Am. Compl. [Dkt. # 12], ¶¶ 17--46. Defendants move to dismiss the instant lawsuit, charging Ms. Dorsey with improper "claim splitting," and ask that the Court impose sanctions pursuant to Fed. R. Civ. P. 11(c). The Court agrees that Ms. Dorsey has engaged in "claim splitting," but will not impose sanctions. Because all three counts brought in Dorsey II were either previously brought in Dorsey I, or could have been brought in Dorsey I, the Court will dismiss Dorsey II and all of its counts.

I. FACTS

A. Dorsey I

On June 9, 2009, Ms. Dorsey filed suit in Dorsey I. The First Amended Complaint in Dorsey I advanced four counts: (1) Count I alleged a failure to make contributions to the Jacobson Holman profit-sharing plan for Ms. Dorsey's benefit in 2007; (2) Count II alleged denial of COBRA benefits;*fn2 (3) Count III alleged unpaid leave and bonuses in violation of the District of Columbia Wage Payment Act, D.C. Code § 32-1303; and (4) Count IV alleged wrongful termination in were enacted as part of the COBRA. Under these provisions, a group health care plan must provide each qualified beneficiary who would lose health insurance coverage as a result of a "qualifying event" the option of continuing such coverage for 18 months by paying for it individually. This is commonly referred to as a COBRA benefit.

On January 11, 2010, Ms. Dorsey moved to file a Second Amended Complaint to supplement the Complaint with two additional counts: (5) Count V alleged retaliation in violation of the D.C. Worker's Compensation Act, D.C. Code § 32-1542, due to "Jacobson Holman's pervasive insistence that Ms. Dorsey resign her position" because Ms. Dorsey filed a workers' compensation claim; and (6) Count VI alleged discrimination on the basis of disability. See Dorsey I, Mot. for Leave to File Plaintiff's 2d Am. Compl. [Dkt. #16], Ex. 2 ¶¶ 58--67. Ms. Dorsey also sought to amend Count IV from "Wrongful Termination" to Interference and Retaliation in violation of the FMLA/DCFMLA. Id. ¶¶ 51--57. On January 25, 2010, Defendants objected only to the addition of Counts V and VI. See Dorsey I, Opp'n to Mot. for Leave to File Plaintiff's 2d Am. Compl. [Dkt. #19]. On April 23, 2010, the Court granted in part and denied in part Plaintiff's Motion for Leave to File a Second Amended Complaint. The Court granted the amendment to Count

IV. Having heard no response to Defendants' legal objections to the addition of Counts V and VI to the Complaint, the Court denied that part of the motion as conceded. See Dorsey I, Minute Entry Order of April 23, 2010. Further, on April 27, 2010, the Court dismissed Count II for failure to exhaust administrative remedies. See Dorsey I, Mem. Op. & Order [Dkt ## 20 & 21]. Ms. Dorsey filed the Second Amended Complaint on May 14, 2010, though it still, impermissibly, contained Count II. See 2d Am. Compl. [Dkt. # 28].

On June 7, 2010, Ms. Dorsey moved to file a Third Amended Complaint, which sought to (1) add a breach of fiduciary claim against Mr. Simor Moskowitz in Count I; (2) amend Count II to "Untimely Cobra Notice," rather than "Denied Cobra Benefits;" and (3) add an additional count of "Claim for Relief Wrongful Discharge." See Dorsey I, Mot. for Leave to File Plaintiff's 3rd Am. Compl. [Dkt. #24], Ex. 2 (labeled as Ex. 1). After initially granting this motion, the Court reconsidered its decision:

The Third Amended Complaint would prejudice Defendants by causing discovery to be re-opened due to the new allegation of wrongful discharge, thereby destroying the bases for the pending motion for summary judgment. Plaintiff has been given multiple opportunities to state her case; June 18, 2010, months after discovery closed and in the face of a motion for summary judgment, is much too late to add completely new counts, allegations, and defendants.

See Dorsey I, Order of September 14, 2010 [Dkt. #36] at 4. The Court thus denied that request to amend, leaving only Counts I, III, and IV before the Court at that time.*fn3

B. Dorsey II

Ms. Dorsey filed suit in this case, Dorsey II, on October 4, 2010. Count I of the instant Complaint in Case No. 10-cv-1682 ("Dorsey II") also complains of the law firm's failure to make contributions to Ms. Dorsey's account in the profit-sharing plan in 2007, by which Simor Moskowitz allegedly breached his fiduciary duties. See Dorsey II, Am. Compl. ¶¶ 17--26. Count II alleges that John C. Holman, administrator of the law firm's health benefit plan, violated his fiduciary duties "by failing to provide Plaintiff with the ARRA notice and subsidized premium information." Id. ¶¶ 29--38. Count III alleges interference with Ms. Dorsey's rights under ERISA when the law firm required Ms. Dorsey to submit a letter of resignation in order to receive "documents that would permit her to take a distribution from the [profit-sharing] plan when she was disabled, which she was."*fn4 Id. ¶¶ 39--46.

II. ANALYSIS

Defendants contend that the instant lawsuit improperly attempts "claim splitting" and should be dismissed. Ms. Dorsey offers numerous arguments to the contrary but none is persuasive. The allegations in Dorsey II are either already covered by Dorsey I or could have been. This separate lawsuit merely tweaks claims made already in Dorsey I or is based on facts known at the time Dorsey I was filed. The three counts within the Amended Complaint in Dorsey II mirror counts I, II, and V in the Third Amended Complaint that Ms. Dorsey attempted to file in Dorsey I, but which the Court disallowed because it was untimely, contained allegations based on ...


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