United States District Court, D. Columbia.
September 10, 2014
LASHAWN D. LEWIS, et al., Plaintiffs,
DARRYL S. PARKER, et al., Defendants
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For LASHAWN D. LEWIS, LACREASHA A. KENNEDY-JARVIS, DEREK N. JARVIS, Plaintiffs: Jaime T. Zeas, Bethesda, MD.
DARRYL S. PARKER, Defendant, Pro se, Washington, DC.
For C. HOPE BROWN, Defendant: Claronell Hope Brown, LEAD ATTORNEY, LAW OFFICES OF C. HOPE BROWN, Washington, DC.
BERYL A. HOWELL, United States District Judge.
The instant suit is the latest iteration of a " long arduous and unnecessary journey of 10 years" of litigation over the estate of James Jarvis (the " James Jarvis Estate" ), who died in 2003. Compl. ¶ 106, ECF No. 1; see id. ¶ ¶ 4-8, 15. The plaintiffs, who include LaCreasha Kennedy-Jarvis, the decedent's spouse, and Lashawn Lewis and Derek Jarvis, who are two out of at least four of the decedent's children, are dissatisfied with the administration of the James Jarvis Estate by the defendants, Daryl S. Parker and C. Hope Brown (collectively, the " defendants" ), who served,
successively, as the personal representatives of the estate. See generally Compl., ECF No 1. The plaintiffs bring this action for breach of fiduciary duty against both defendants, see Compl. ¶ ¶ 116-22, 129-35, and for civil conversion against Defendant Parker, see id. ¶ ¶ 123-128.  Pending before the Court are three motions: Defendant Parker's Motion to Dismiss, Def. Parker's Mot. Dismiss (" Def. Parker Mot." ) at 1, ECF No. 11; Defendant Brown's Motion to Dismiss or, in the alternative, Motion for Summary Judgment, Def. Brown's Mot. Dismiss Alt. Mot. Summ. J. (" Def. Brown Mot." ) at 1, ECF No. 12; and the plaintiffs' Motion for Partial Summary Judgment, (" Pls.' Mot." ), ECF No. 16. For the reasons below, the defendants' motions are granted.
Both defendants assert that the plaintiffs' claims are barred on res judicata grounds including claim and issue preclusion, see Def. Parker's Mot. ¶ ¶ 3-4; Def. Brown's Mot. at 1. Thus, a review of the history of proceedings involving the James Jarvis Estate before the District of Columbia Probate Court and Court of Appeals is necessary, before turning to the litigation in this United States District Court.
A. D.C. Probate Court Proceedings
Defendant Parker was appointed personal representative to the James Jarvis Estate in 2004, following the preclusion of one of Jarvis' daughters, Greer Burriss (" Burriss" ), from appointment as a Special Administrator. See Compl. ¶ ¶ 18-22. In
his role as Personal Representative, Defendant Parker secured a settlement, following court-ordered mediation, with Burriss regarding " a 2003 Cadillac automobile allegedly titled in the name of the decedent." See Compl. Ex. L (District of Columbia Probate Court Consent Order, February 23, 2005, filed in In re James P. Jarvis, 2003 ADM 1036) (the " Consent Order" )at 1, ECF No. 4-1. As part of the settlement, the James Jarvis Estate agreed to " forgo any further claims the Estate might raise against Greer M. Burriss," and Burriss " agree[d] to waive, relinquish and surrender her share as an heir in the net Estate of James P. Jarvis." Id.
Following entry of the Consent Order, the plaintiffs filed suit, on July 8, 2005, in District of Columbia Probate Court alleging that Defendant Parker " breached his fiduciary duty in administering the Estate." Compl. Ex. N (District of Columbia Probate Court Order, March 10, 2009, filed in Jarvis v. Parker, 2003 ADM 1036) (the " Removal Order" )at 1, ECF No. 4-1. The majority of the breaches the plaintiffs accuse Defendant Parker of committing stem from the terms of the Consent Order, which the plaintiffs contend was improperly entered because " Burriss had undervalued the Estate and had stolen items from the decedent's abode shortly after his death." Compl. ¶ ¶ 19; see id. ¶ 27.
Before trial in Probate Court, the plaintiffs sought clarification of a ruling that limited the plaintiffs' possible relief to the removal of Defendant Parker as a personal representative. See Pls.' Opp'n Def. Brown's Mot. Dismiss Ex. A (District of Columbia Probate Court Order, July 25, 2007, filed in In re Estate of James P. Jarvis, 2003 ADM 1036) (the " Clarification Order" )at 1, ECF No. 17-4. Instead, the plaintiffs sought the ability to seek both " relief in equity and/or at law for damages owed the Jarvis Estate by Defendant Parker . . . ." See id. at 1. Prompted by the plaintiffs' request, the Probate Court issued the Clarification Order, which summarized the prior history, through 2007, of the probate litigation. See generally id.
Of particular relevance to the instant matter are two issues addressed in the Clarification Order. First, critically, the Probate Court rejected all of the plaintiffs' requests for damages based on certain purported assets not being included in the inventories and accountings of the James Jarvis Estate that Defendant Parker filed with the Probate Court. See Clarification Order at 6, 9-10. The court pointed out that the plaintiffs failed timely to object to Defendant Parker's inventories and accountings, thus waiving their right to later challenge the accuracy of those filings. See id. at 6. Consequently, the allegedly missing assets, for which the plaintiffs sought damages in their Complaint, were merely " assets that [the plaintiffs] believe the Estate might have had." Id. at 9 (emphasis in original). The court explained
that the plaintiffs could not recover damages based on assets not listed on the inventories of the James Jarvis Estate to which the plaintiffs had ample opportunity, but declined or failed to challenge within the time provided for by the relevant statute. See id. Rather, the plaintiffs would only be able to secure damages, if at all, against Defendant Parker if they could prove that certain assets were lost from the James Jarvis Estate that were properly inventoried as part of the Estate and were no longer available due to Defendant Parker's alleged breaches of fiduciary duty. See id. at 9-10.
Second, the Probate Court rejected the plaintiffs' attack on the legitimacy of the Consent Order and their allegations that Defendant Parker breached his fiduciary duty by filing the Consent Order. See id. at 6-8. The court opined that " the Court, when deciding whether to grant the petition to settle, must have determined that the settlement was in the best interest of the estate." See id. at 6. Consequently, " Mr. Parker's decision to settle with Ms. Burriss would appear able to withstand Plaintiffs' challenge of any breach," especially considering that the plaintiffs had the opportunity, pursuant to D.C. Code § 20-521, to seek an order restraining Defendant Parker from joining the Consent Decree and the plaintiffs failed to do so. See id. at 7.
The court also considered, in the context of the Clarification Order, a motion filed by the plaintiffs seeking to set aside the Consent Order, under D.C. S.Ct. Civ. R. 60, based on " newly discovered evidence." Id. at 8. The court denied this motion because the plaintiffs, as non-parties to the Consent Order, had no standing to pursue such a motion and only the successor personal representative, if Defendant Parker were removed, would be able to file such a motion " if appropriate." Id. 
The Probate Court then held a trial on eight allegations, posited by the plaintiffs as warranting Defendant Parker's removal as personal representative. The allegations were that Defendant Parker: (1) failed " to marshal for the estate a 1995 Cadillac El Dorado that the decedent owned when he died," Removal Order at 1; (2) failed " to seek to become Successor Personal Representative of the estate of Charles Jarvis, James Jarvis' father, for which James Jarvis had been Personal Representative before his death," id. at 2; (3) failed " to attempt to recoup for the estate moneys debited from the decedent's bank account in the form of automatic debits made after his death," id. ; (4) failed " to attempt to secure funds from a stale payroll check of the decedent," id. ; (5) failed " to marshal estate real property in the states of New Jersey and South Carolina owned by the decedent," id. at 1; (6) failed " to marshal for the estate certain personal property that the decedent owned at the time of his death," id. at 1-2; (7) failed " to communicate with the heirs about the administration of the estate," id. at 2; and (8) failed " to pay creditors in a timely fashion," id.
After hearing evidence at the trial, the Probate Court found that the plaintiffs had proven the first four allegations but not the last four, and removed Defendant Parker as Personal Representative. Removal Order at 24-25. Specifically, the Probate Court concluded that (1) Defendant Parker " mismanaged property, specifically the funds represented by [a] $618.00 [payroll]
check made payable to James Jarvis by a District of Columbia Agency; " (2) that Defendant Parker " failed, without reasonable excuse, to fulfill the duties of his office" by (a)" failing to conduct the basic investigation/verification required to make informed decisions about" declining to marshal the 1995 Cadillac to the James Jarvis Estate, (b) foregoing " any claims by the James Jarvis [E]state to any funds from the Charles Jarvis estate," and (c) not seeking " the return from the bank or any other individual of moneys withdrawn from James Jarvis' bank account after his death." Id. The Probate Court concluded the plaintiffs failed to prove that Defendant Parker was derelict in his duty to marshal to the estate personal property owned by the decedent, real property allegedly owned by the decedent in New Jersey and South Carolina, id. at 17-18, or that Defendant Parker failed materially to communicate with the heirs or pay creditors in a timely fashion, id. at 12-13.
Following the removal of Defendant Parker as the Estate's Personal Representative, he filed a " Petition for Award of Compensation for Personal Representative," which the Probate Court granted in part and denied in part. See Def. Brown's Mem. Supp. Def. Brown's Mot. (" Def. Brown's Mem." ) Ex. 5 (District of Columbia Probate Court Order Granting Petition for Compensation, Dec. 7, 2009, filed in Jarvis v. Parker, 2003 ADM 1036) (" Def. Parker Fees Order" ) at 1, ECF No. 12-5. The Court granted compensation to Defendant Parker in the amount of $10,762.50 for approximately seventy hours of service in the case but denied his request for an unspecified additional amount in compensation. Id. at 2. By contrast, the Probate Court denied entirely the plaintiffs' " Petition for Award of Attorney's Fees, Investigatory Fees, and Administrative Costs by Counsel for Plaintiffs, Heirs, and Beneficiaries," noting that " the litigation tactics in which this counsel engaged throughout his involvement in this litigation actually harmed the estate financially, costing it far more harm [than] by any inaction by the Removed Personal Representative." Def. Brown's Mem. Ex. 6 (District of Columbia Probate Court Order Denying Petition for Compensation, Dec. 7, 2009, filed in Jarvis v. Parker, 2003 ADM 1036) (" Pls.' Counsel Fees Order" ) at 1, ECF No. 12-6. The Probate Court further described plaintiffs' counsel's actions as " border[ing] on abuse of the litigation process, which cannot be rewarded," and opined that the plaintiffs' counsel's " lack of familiarity with the law and lack of litigation experience and skills contributed to much delay at the hearings and trial in this matter." Id. 
Defendant Brown was appointed in 2009 as successor Personal Representative following the removal of Defendant Parker. See Compl. ¶ 73. She notified the plaintiffs that she did " not plan to file" a Rule 60(b)
motion seeking to vacate the Consent Order approved by the Probate Court in 2005 and that, in her view, the plaintiffs' appeal of portions of the Probate Court's Clarification Order and Removal Order were " not meritorious." Compl. Ex. R (Email Correspondence from Defendant Brown to Plaintiffs' Counsel, December 8-12, 2011) at 1, ECF No. 5-1.
B. District of Columbia Court of Appeals Ruling
Defendant Parker appealed the Removal Order and the plaintiffs appealed portions of the Probate Court's Clarification Order and Removal Order. See Compl. Ex. M (Mem. Op. and J., Nos. 09-PR-1131 and 10-PR-0248, In re Estate of James P. Jarvis (D.C. Apr. 30, 2012) (the " 2012 Appeal" )) at 1, ECF No. 4-1. The District of Columbia Court of Appeals affirmed the Clarification Order and the Removal Order " in all respects." See id. The appellate court considered explicitly the plaintiffs' " claim [that] the trial court erred in denying their motion to vacate a consent order secured by Mr. Parker as personal representative, and that the trial court improperly deprived appellants of their right to seek damages against Mr. Parker."  Id. The D.C. Court of Appeals upheld the trial court's finding that the plaintiffs " lack standing to challenge the [Consent] [O]rder" because " [i]f, as appellants allege, the 2005 Consent Order was procured by fraud, the remedy is to have the personal representative removed in favor of a successor personal representative who has the authority to seek relief from that order of the trial court." Id. at 2. The D.C. Court of Appeals also held that the trial court was correct " in not awarding damages against Mr. Parker for breach of his fiduciary duties," since it " reserved the right to consider the issue of damages upon the removal of Mr. Parker as personal representative and the appointment of a successor personal representative." Id. The court stated that it was not " constru[ing] the trial court's order as foreclosing appellants' opportunity to obtain damages from Mr. Parker if the successor personal representative elects not to pursue damages." Id. (citing In re Estate of Bernstein, 3 A.3d 337, 342 n.6 (D.C. 2010)). Finally, the Court of Appeals denied Defendant Parker's cross-appeal and upheld the trial court's removal of him from his former position as the James Jarvis Estate's personal representative. Id. at 2-3.
C. Federal Court Proceedings
In March, 2013, the plaintiffs filed a complaint in this Court that is virtually identical to the instant Complaint, but failed timely to respond to the defendants' motions to dismiss that case, leading to the dismissal without prejudice of the suit. See Jarvis v. Parker, No. 13-350, 13 WL 2406293, at *1-2 (D.D.C. June 3, 2013). The plaintiffs' subsequent motion for relief from the judgment of dismissal pursuant to Federal Rules of Civil Procedure 60(b)(1) and (b)(6) was denied because the plaintiffs' failure to respond to the defendants' motions to dismiss was the result of the plaintiffs' counsel " mistake or ignorance of the rules of this Court," which did not constitute " 'excusable neglect'" under Rule 60(b)(1), Jarvis v. Parker, No. 13-350, 13 F.Supp.3d 74, 13 WL 346077, at *4 (D.D.C. Jan. 31, 2014), and did not otherwise show the requisite " extraordinary
circumstances" to warrant relief under Rule 60(b)(6), [WL] at *5.
Within four days of the dismissal of the initial federal complaint, the plaintiffs re-filed their claims in the instant Complaint. See generally Compl. With regard to Defendant Parker, the plaintiffs allege that he breached his " fiduciary duty of care" to the James Jarvis Estate and the plaintiffs as estate beneficiaries, Compl. ¶ ¶ 117-18, some of which breaches have " already been judicially determined," id. ¶ 119, and thereby " actually and proximately caused monetary damage to the Plaintiffs [sic] inheritance rights," id. ¶ 120. The actions allegedly constituting breaches of fiduciary duty are the same actions that were considered by the Probate Court, including (1) entry of the Consent Order with Burriss, id. ¶ ¶ 27-37; (2) failing to obtain from Burriss " valuable personal property," id. ¶ 38, amounting to " $5,299.00 in jewelry purchased by the decedent just months prior to his death," id. ¶ 43; (3) failing to secure " the decedent's second older 1995 Cadillac El Dorado," which was " held by a mechanic" and valued at " $7,300.00," id. ¶ 55(i); (4) failing to investigate the decedent's inheritance from the estate of the decedent's father, in the amount of " $1,975.83," and the decedent's mother, which estates allegedly included real property in New Jersey and South Carolina and amounted to a total of " $291,667.00," id. ¶ 55(ii-iii); (5) failing to investigate post-death withdrawals of " $2,398," id. ¶ 55(iv); and (6) failing to ensure a stale payroll check of the decedent did not bounce, resulting in " a $10.00 bounced check fee," id. ¶ 55(v). The plaintiffs also allege that Defendant Parker committed civil conversion of some of the James Jarvis Estate's assets by petitioning for and being awarded administration and attorneys' fees for his work. See id. ¶ ¶ 83-87, 124-128.
With regard to Defendant Brown, the plaintiffs allege that she breached her " fiduciary duty of care" to the James Jarvis Estate and the plaintiffs, by failing (1) " to provide statutorily requisite accounts," Compl. ¶ 132; (2) " to marshal known Estate assets," id. ; and (3) " to keep herself apprised of Appellate proceedings related to the Estate," id. According to the plaintiffs, these breaches " proximately caused monetary damages to Plaintiffs [sic] inheritance rights" causing the plaintiffs to suffer " monetary damages" for which Defendant Brown " must be held directly liable" to the plaintiffs, id. ¶ ¶ 133-35.
II. LEGAL STANDARD
A. Motion To Dismiss For Failure To State A Claim
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff need only plead " enough facts to state a claim to relief that is plausible on its face" and to " nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Fed.R.Civ.P. 12(b)(6). " [A] complaint [does not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557). Instead, the complaint must plead facts that are more than " 'merely consistent with' a defendant's liability" but provide sufficient " factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (quoting Twombly, 550 U.S. at 556); accord Rudder v. Williams, 666 F.3d 790, 794, 399 U.S.App.D.C. 45 (D.C. Cir. 2012). The Court " must assume all the allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17, 381 U.S.App.D.C. 76 (D.C. Cir. 2008) (citations and internal quotation marks omitted).
B. Res Judicata (Claim Preclusion and Issue Preclusion)
" The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as 'res judicata.'" Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). Claim preclusion " forecloses 'successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.'" Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). In contrast, issue preclusion, which was " once known as 'collateral estoppel' and 'direct estoppel,'" bars " successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim." Id. at 892 and n.5 (internal quotations and citations omitted); see also Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (under " res judicata, 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" and collateral estoppel " preclude[s] relitigation of the issue in a suit on a different cause of action" ); U.S. Postal Serv. v. Am. Postal Workers Union, 553 F.3d 686, 696, 384 U.S.App.D.C. 257 (D.C. Cir. 2009) (" Under 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." ) (internal quotation marks and citation omitted). The Supreme Court has explained that these preclusion doctrines serve important functions to " protect against 'the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.'" Taylor, 553 U.S. at 892 (quoting Montana v. United States, 440 U.S. 147, 153-154, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979)) (alteration in original); see also Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254, 295 U.S.App.D.C. 158 (D.C. Cir. 1992) (" The objective of the doctrine of issue preclusion . . . is judicial finality; it fulfills 'the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdiction.'" ) (quoting Kremer v. Chemical Constr. Corp., 456 U.S. 461, 467 n.6, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)); Washington Water Power Co. v. FERC, 775 F.2d 305, 341, 249 U.S.App.D.C. 255 (D.C. Cir. 1985) (the purpose of res judicata is " to prevent relitigation of issues that were, or should have been, previously tried" ).
In applying issue preclusion, three elements must be satisfied for a final judgment to preclude litigation of an issue in a subsequent case: " , the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case[; 2], the issue must have been actually and necessarily determined by a court of competent jurisdiction in that prior case[; and] preclusion in the second case must not work a basic unfairness to the party bound
by the first determination." Martin v. Dep't of Justice, 488 F.3d 446, 454, 376 U.S.App.D.C. 293 (D.C. Cir. 2007) (quoting Yamaha, 961 F.2d at 254 (D.C. Cir. 1992)) (alterations in original). " [O]nce 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." McLaughlin v. Bradlee, 803 F.2d 1197, 1201, 256 U.S.App.D.C. 119 (D.C. Cir. 1986) (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)).
The overriding goal of the issue preclusion doctrine is to " avert needless relitigation and disturbance of repose, without inadvertently inducing extra litigation or unfairly sacrificing a person's day in court." Otherson v. U.S. Dep't of Justice, 711 F.2d 267, 273, 228 U.S.App.D.C. 481 (D.C. Cir. 1983). When the first two prerequisites for application of the issue preclusion doctrine are met, the plaintiff " must be permitted to demonstrate, if he can, that he did not have a fair opportunity procedurally, substantively, and evidentially to pursue his claim the first time." Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 333, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (internal quotation marks omitted). As the Supreme Court explained, " a party who has had one fair and full opportunity to prove a claim and has failed in that effort, should not be permitted to go to trial on the merits of that claim a second time. Both orderliness and reasonable time saving in judicial administration require that this be so unless some overriding consideration of fairness to a litigant dictates a different result in the circumstances of a particular case." Id. at 324-25.
Notably, " [a] court conducting an issue preclusion analysis does not review the merits of the determinations in the earlier litigation." Consol. Edison Co. of N.Y. v. Bodman, 449 F.3d 1254, 1257, 371 U.S.App.D.C. 236 (D.C. Cir. 2006); see also Nat'l Post Office Mail Handlers, Watchmen, Messengers, and Grp. Leaders Div. of Laborers' Int'l Union of N. Am. v. Am. Postal Workers Union, 907 F.2d 190, 194, 285 U.S.App.D.C. 120 (D.C. Cir. 1990) (" The doctrine of issue preclusion counsels us against reaching the merits in this case, however, regardless of whether we would reject or accept our sister circuit's position." ); Yamaha Corp. of Am. v. United States, 745 F.Supp. 734, 738 (D.D.C. 1990) (noting the D.C. Circuit's instruction " that collateral estoppel prevents a court from ever reaching the merits" ).
For claim preclusion, " 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." Havens v. Mabus, No. 12-5339, 759 F.3d 91, 411 U.S.App.D.C. 282, 14 WL 3674599, at *4 (D.C. Cir. July 25, 2014) (quoting Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 490, 386 U.S.App.D.C. 328 (D.C. Cir. 2009)). Under the doctrine of claim preclusion, a final judgment on the merits in a prior suit involving the same parties bars subsequent suits based on the same cause of action, since a plaintiff is expected to " present in one suit all the claims for relief that he may have arising out of the same transaction or occurrence." U.S. Indus., Inc. v. Blake Constr. Co., Inc., 765 F.2d 195, 205, 246 U.S.App.D.C. 326 (D.C. Cir. 1985) (quoting 1B J. Moore, Moore's Federal Practice, ¶ 0.410 (1983)); see Montana, 440 U.S. at 153; Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). " Whether two cases implicate the same cause of action turns on whether they share the same 'nucleus of facts.'" Apotex, Inc. v. FDA, 393 F.3d 210, 217, 364 U.S.App.D.C. 187 (D.C. Cir. 2004) (quoting Drake v. FAA, 291 F.3d 59, 66, 351 U.S.App.D.C. 409 (D.C. Cir. 2002)). Parties are thus prevented from relitigating in a separate proceeding " any
ground for relief which they already have had an opportunity to litigate[,] even if they chose not to exploit that opportunity," and regardless of the soundness of the earlier judgment. Hardison v. Alexander, 655 F.2d 1281, 1288, 211 U.S.App.D.C. 51 (D.C. Cir. 1981); I.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 949, 232 U.S.App.D.C. 418 (D.C. Cir. 1983) (noting that claim preclusion " forecloses all that which might have been litigated previously" (citation omitted)).
The plaintiffs, dissatisfied with the clear and unambiguous rulings provided by the District of Columbia's Probate Court and Court of Appeals, have now filed suit twice in this Court, attempting to recover damages allegedly due the James Jarvis Estate as a result of Defendant Parker's alleged fiduciary breaches. See Pls.' Opp'n Def. Brown's Mot. (" Pls.' Brown Opp'n" ) at 7-8, ECF No. 17-1. As discussed below, the two claims against Defendant Parker are barred by res judicata, since these claims and issues have been litigated already in the local courts of the District of Columbia. The claim against Defendant Brown is barred by the applicable statute of repose and the factual allegations made in the plaintiffs' own filings. The claims against each defendant are examined in turn.
A. The Claims Against Defendant Parker
The plaintiffs assert two claims against Defendant Parker: breach of fiduciary
duty stemming from his actions as Personal Representative of the James Jarvis Estate, Compl. ¶ ¶ 116-22, and civil conversion of the payments made to him for administering the James Jarvis Estate and the attorneys' fees awarded him following the Removal Order, id. ¶ ¶ 83-87, 123-28. The elements of each claim and whether those claims are precluded on res judicata grounds are examined individually.
1. Breach of Fiduciary Duty
The seven allegations raised against Defendant Parker in this action are properly precluded. The elements and application of claim preclusion are addressed first before turning to issue preclusion.
a) Claim Preclusion
The first element in the application of the claim preclusion bar is whether the same claim or cause of action is being raised as one raised in a previous suit. See Havens, 2014 WL 3674599, at *4. In their Complaint before the District of Columbia Probate Court, the plaintiffs alleged that " Mr. Parker has breached his fiduciary duty to the Jarvis estate." Def. Parker's Mot. Ex. 1 (Complaint [for] Removal of Personal Representative, Appointment of Successor Representative, Demand for Completion of Accounting and Damages, July 7, 2005, filed in In re Estate of James P. Jarvis, 2003 ADM 1036) (the " Probate Complaint" ) ¶ 38, ECF No. 11. As support for this assertion before the D.C. Probate Court, the plaintiffs alleged, inter alia, that Defendant Parker (1) improperly " engaged in a mediation proceeding" with Burriss regarding the decedent's 2003 Cadillac, id. ¶ 22; (2) failed to obtain property allegedly stolen by Burriss from the decedent's apartment, id. ¶ 15; (3) failed to follow-up on a $618.00 payroll check to the decedent, id. ¶ 6(h); (4) failed to include real property from the decedents' mother's and father's estates in the James Jarvis Estate inventory, id. ¶ 13(c); (5) failed to marshal a 1995 Cadillac for the estate, id. ¶ 24; and (6) failed to investigate certain automatic debits to the decedent's bank accounts that occurred after his death, id. ¶ 6(g). These are the same allegations underlying the plaintiffs' breach of fiduciary duty claim against Defendant Parker in the instant matter. See Compl. ¶ ¶ 44-46 (alleging Defendant Parker improperly entered into settlement after mediation regarding decedent's 2003 Cadillac); id. ¶ ¶ 25, 38-43 (alleging failure to obtain property allegedly stolen by Burriss from decedent's apartment); id. ¶ 55(v) (alleging failure to follow-up on $618.00 payroll check); id. ¶ 55(ii) (alleging failure to include property from decedent's mother's and father's estates in James Jarvis Estate inventory); id. ¶ 55(i) (alleging failure to secure 1995 Cadillac for decedent's estate); id. ¶ 55(iv) (alleging failure to investigate " post-death electronic withdrawals from the decedent's bank account . . . [totaling] $2,398.00" ). Thus, the first element for application of the claim preclusion bar is met as to the breach of fiduciary duty claim.
The second element for the claim preclusion bar is whether the same parties or their privies were involved in the prior suit and the instant suit. See Havens, 2014 WL 3674599, at *4. In the instant matter, all of the plaintiffs and Defendant Parker were parties to the Probate Court and D.C. Court of Appeals
proceedings. See Probate Compl. at 1; 2012 Appeal at 1. Thus, the second element is met.
The third element for the claim preclusion bar is whether there has been a final, valid judgment on the merits. See Havens, 2014 WL 3674599, at *4. As previously noted, the District of Columbia courts have issued final judgments on the merits as to each of the plaintiffs' allegations in this matter. Specifically, in the Clarification Order the Probate Court held that entry into the Consent Order with Burriss and failure to secure real property for the James Jarvis Estate in South Carolina in which the decedent allegedly held an interest were not breaches of Defendant Parker's fiduciary duty, see Clarification Order at 7; Removal Order at 18. The plaintiffs' five remaining allegations in the instant case, i.e., the failure to (1) obtain property from the estate allegedly stolen from the decedent's apartment; (2) follow-up on the stale payroll check; (3) pursue property from the decedent's father's estate; (4) secure the 1995 Cadillac for the decedent's estate; and (5) pursue the return of automatic post-death debits to the decedent's bank account, were rejected by the Probate Court as untimely and, therefore, waived. See Clarification Order at 9-10. This prior, final judicial ruling is fatal to the plaintiffs' damages claim here against Defendant Parker for breach of fiduciary duty since none of the purported assets subject to a breach were included in the inventory of Estate assets. See id.
While Defendant Parker's actions in failing to marshal certain assets to the Estate amounted to a breach of fiduciary duty warranting his removal as personal representative, the fact that the plaintiffs failed to object to his accountings and inventories as insufficient or improper precluded any award of damages based on those un-marshaled assets. See Clarification Order at 6, 9-10. Instead, the only damages for which Defendant Parker might be personally liable, and to which the D.C. Court of Appeals expressly referred in the 2012 Appeal, see 2012 Appeal at 2, are for any assets of the James Jarvis Estate that were included on the unchallenged inventories and accountings but were subsequently lost due to Defendant Parker's wrongful action or inaction. See Clarification Order at 9. None of the items alleged in the instant matter were included in the inventories and accountings and were instead, as the Probate Court held, assets that the " plaintiffs believe the Estate might have had." Id. (emphasis in original). Thus, contrary to the plaintiffs' contention, the actions for which the plaintiffs are seeking damages in this Court were actually and necessarily determined to have been waived by the D.C. Probate Court, a ruling affirmed by the D.C. Court of Appeals.
Thus, all of the plaintiffs' allegations in this matter are the subject of a final, valid judgment on the merits through either the Clarification Order or the Removal Order.
The final element for the application of the claim preclusion bar is whether the final judgments were rendered by a Court of competent jurisdiction. See Havens, 2014 WL 3674599, at *4. The parties do not dispute this element, and the 2012 Appeal approved all of the Probate Court's Orders in all respects, indicating that the Probate Court was a court of competent jurisdiction to issue its rulings. See 2012 Appeal at 1. Thus, this fourth element for the application of claim preclusion is met.
Consequently, all of the plaintiffs' allegations in the instant suit are barred by claim preclusion and, on this ground alone, the plaintiffs' complaint must be dismissed.
b) Issue Preclusion
Even if the plaintiffs' allegations were not barred by claim preclusion, many of the allegations, if not all, would be barred by issue preclusion as well. The first element of issue preclusion, whether the same issue raised in the instant suit was raised in the prior suit, is substantively similar to the first element of claim preclusion and, as such, the Court need not repeat its analysis of this element here to determine that the first element of the issue preclusion bar is met. See supra Part III.A.1.a.
The second element for issue preclusion to apply is whether a court of competent jurisdiction actually and necessarily determined the issue previously. See Martin, 488 F.3d at 454. As previously noted and, indeed, as pleaded in the Complaint, the Probate Court and the D.C. Court of Appeals addressed the plaintiffs' instant claims and allegations in their previous rulings. See supra Part III.A.1.a; see also 2012 Appeal at 1; Clarification Order at 8-10. The second element for application of the issue preclusion bar is met.
The final element of issue preclusion is whether its application would result in unfairness to the party against whom this doctrine is to be applied. See Martin, 488 F.3d at 454. In examining " unfairness" for the purposes of issue preclusion, the D.C. Circuit has been primarily concerned with whether " the losing party clearly lacked any incentive to litigate the point in the first trial, but the stakes of the second trial are of a vastly greater magnitude." Yamaha, 961 F.2d at 254. In other words, where the court " can discern no difference between the incentives the [plaintiffs] may have had in" their earlier case and the instant matter, the application of issue preclusion does not result in the compelling showing of unfairness that
would render the issue preclusion bar inapplicable. See Venetian Casino Resort, LLC v. NLRB, 484 F.3d 601, 610, 376 U.S.App.D.C. 103 (D.C. Cir. 2007). The plaintiffs offer no argument, nor can the Court discern one, as to why the incentive to litigate Defendant Parker's alleged breaches of fiduciary duty in the Probate Court were any different from their incentives here. Considering that the facts underpinning the plaintiffs' Complaint in the instant matter are identical to those raised in the probate proceedings, and the plaintiffs zealously litigated and appealed those issues in the local courts, there is no " vastly greater incentive" in this action that would negate the application of the issue preclusion bar.
Consequently, the Court finds that the plaintiffs' claim for breach of fiduciary duty against Defendant Parker is also barred by issue preclusion.
2. Civil Conversion
The plaintiffs' second claim against Defendant Parker is for civil conversion. " The essence of a conversion is a wrongful taking or a wrongful retention of property after a rightful possession." Shehyn v. District of Columbia, 392 A.2d 1008, 1012 (D.C. 1978). Central to a conversion claim is the " dispossession of property rights," since absent such dispossession " there can be no action for conversion." Kaempe v. Myers, 367 F.3d 958, 964, 361 U.S.App.D.C. 335 (D.C. Cir. 2004).
The Complaint alleges that Defendant Parker converted " $38,705.87 of Estate cash in its bank account to fund his failed defense" to the plaintiffs' prior action to remove him as Personal Representative. Compl. ¶ 83. The gravamen of the plaintiffs' Complaint is that Defendant Parker required " a court order prior to taking any funds from the Estate bank account in defending a removal action." Id. ¶ 87 (emphasis in the original). Similarly to the claim against Defendant Parker for breach of fiduciary duty, however, the plaintiffs' Complaint reveals that this issue, too, has been previously decided by the District of Columbia Probate Court.
The plaintiffs state in their Complaint that " [t]he fact that a Judge subsequently attempted to right Parker's wrong by ordering that the already removed funds was proper after-the-fact does not comply [with] D.C. Statutes § § 20-526 & 20-533 or excuse Defendant Parker's breach thereof." Compl. ¶ 89 (emphasis in the original). This statement makes clear that (1) the issue was brought before a court of competent jurisdiction and (2) that the court necessarily decided the issue, since the Court entered an Order stating the removal of funds " was proper after-the-fact." See id.; see also Martin, 488 F.3d at 454. Whether the court's decision is correct as a matter of law is immaterial to whether the issue preclusion bar applies to this action. See City of Arlington v. FCC,
133 S.Ct. 1863, 1869, 185 L.Ed.2d 941 (2013).
The plaintiffs offer no argument as to why it would be unfair to apply issue preclusion to this claim, nor can the Court discern any reason why the incentives for seeking funds allegedly improperly retained by Defendant Parker are any greater than the incentives the plaintiffs had in seeking to prevent the disbursement of those funds to Defendant Parker in the first instance. Thus, issue preclusion applies to this civil conversion claim and it must be dismissed.
* * *
To sum up, the two claims raised by the plaintiffs in the instant complaint against Defendant Parker, and the factual bases for those claims, were raised, addressed, and necessarily decided by courts of competent jurisdiction, and the application of claim and issue preclusion to these claims does not work an unfairness on the plaintiffs. The plaintiffs had their day in court and this Court need not provide the proverbial " second bite at the apple."  Defendant Parker's motion to dismiss on the grounds of res judicata is granted as to all claims against him.
B. The Claim Against Defendant Brown
The plaintiffs assert a single claim against Defendant Brown: breach of fiduciary duty to the James Jarvis Estate. See Compl. ¶ ¶ 129-35. The basis for the claim against Defendant Brown is difficult to disentangle from the plaintiffs' claims against Defendant Parker, and the parties' briefing does little to alleviate this opaqueness. Nevertheless, the allegations that appear to underlie the claim fail to state a claim upon which relief can be granted.
The factual allegations relating exclusively to Defendant Brown are contained in paragraphs 73 through 82 and paragraphs 109 through 115 of the Complaint. In sum, the plaintiffs allege that Defendant Brown (1) did not provide the plaintiffs with the " requisite periodic Accounting" owed to them " pursuant to D.C. [Code] § 20-721," Compl. ¶ 110; " failed to keep herself apprised of the status of Appellate proceedings directly touching on her fiduciary duties to the Estate," id. ¶ 112; and (3) closed the estate " with no notice to Plaintiffs or their counsel" which " foreclosed the opportunity for her or Plaintiffs to seek vacating the Consent Order," id. ¶ 114; see also id. ¶ 76 (noting Defendant Brown was opposed to moving to vacate the Consent Order); id. ¶ 80 (alleging Defendant Brown failed to provide accountings to beneficiaries). The Complaint alleges that as a result of these perceived failures, " Defendant Brown must be held 'directly liable' to Plaintiffs for approximately $11,000 remaining in the
Estate Wachovia bank account as of circa December 2009 when Defendant Brown assumed office." Id. ¶ 82 (errors in original).
As to the first allegation, that Defendant Brown failed to notify the plaintiffs of her accountings, the plaintiffs' own opposition references the Probate Court docket in this matter and the attached exhibit includes excerpts from that docket. See generally Pls.' Opp'n Def. Brown's Mot. Dismiss Ex. F (Probate Court Docket for In re Estate of James P. Jarvis (" Probate Docket" )), ECF No. 17-9. This exhibit shows that Defendant Brown's accountings were mailed to the parties on August 19, 2010, May 24, 2011, December 30, 2011, and November 2, 2012. See id. at 3-5. Thus, contrary to the plaintiffs' allegation that from " circa December 2009 to date Brown has failed to provide Plaintiffs or their counsel with a single statutorily requisite periodic Accounting," Compl. ¶ 110, the plaintiffs' own exhibit reveals that at least four such accountings were mailed to them, see Probate Docket at 3-5.
The second allegation, that Defendant Brown failed to keep herself apprised of the appellate proceedings in this matter, appears to be based on the plaintiffs' assertion that Defendant Brown sent an email to the plaintiffs' counsel on March 15, 2013 stating that " she had thought that 'the appeal had been dismissed' and requested a copy of the opinion." Compl. ¶ 113; see id. ¶ ¶ 76-77 (noting Defendant Brown declined to join in the D.C. Court of Appeals proceeding). Defendant Brown's evaluation of the merits of the plaintiffs' appeal was proven correct: the Court of Appeals rejected all of the plaintiffs' claims on appeal and affirmed all of the Probate Court's Orders. See 2012 Appeal at 1 and n.1. Thus, the plaintiffs' Complaint indicates that Defendant Brown was keeping abreast of the appellate proceedings, as she correctly described the disposition of the appellate proceedings when asked, since the D.C. Court of Appeals affirmed the Probate Court's Orders in full. See 2012 Appeal at 1.
The plaintiffs' third allegation, that Defendant Brown closed the James Jarvis Estate and foreclosed an attack on the Consent Order is, in essence, a disagreement between the plaintiffs and Defendant Brown as to whether such a motion to vacate would have been successful. Defendant Brown, as the Personal Representative, made plain her view that the plaintiffs' allegations regarding the Consent Order lacked merit and, consequently, did not move to vacate the Consent Order on behalf of the James Jarvis Estate. See Def. Brown's Reply Pls.' Opp'n Def. Brown's Mot. Dismiss (" Def. Brown's Reply" ) at 3, ECF No. 29 (" Defendant Brown clearly stated that the fraud allegations made by Plaintiffs appeared 'flawed and unsupportable' and that there was no basis for vacating the Consent Order." ). In any event, whether Defendant Brown exercised her judgment properly with regard to seeking to undo the Consent Order is immaterial, since such a challenge would have been statutorily barred at the time she assumed her duties as personal representative.
D.C. Code § 20-108.01 provides the applicable statute of limitations and statute of repose for probate matters when there are allegations of fraud, specifically providing that " [w]henever fraud has been perpetrated in connection with any proceeding" relating to the probate and administration of decedents' estates, " any person injured thereby may obtain appropriate relief against the perpetrator of the fraud . . . ."
D.C. Code § 20-108.01(a). The statute further states that " [a]ny proceeding must be commenced within 2 years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than 5 years after the time of the commission of the fraud." Id.
The plaintiffs made their allegations that the Consent Order was procured by fraud in their initial Probate Complaint, filed in 2005, referring to Burriss' 2003 actions regarding a 2003 Cadillac and the decedent's personal property. See Probate Complaint ¶ 22-23 (alleging Burriss committed fraud regarding her ownership of the disputed 2003 Cadillac and that Defendant Parker should have sued Burriss " for the return of the 2003 Cadillac and other personal property taken from the decedent's apartment" ). The plaintiffs do not allege that Defendant Brown actually committed the fraud that led to the Consent Decree, but rather that Burriss, the decedent's daughter, was the fraudster who allegedly " stole" the decedents' 2003 Cadillac, Compl. ¶ 37, and " gained entry to the decedent's apartment to rape, pillage, and plunder it," id. ¶ 40. Thus, any claim against Burriss for the alleged theft and fraud in connection with the 2003 Cadillac would have had to have been brought within two years of the plaintiffs' discovery of the fraud, i.e., no later than 2007, and against Defendant Brown as " one not a perpetrator of the fraud" no " later than 5 years after the time of commission of the fraud," or, more specifically, in 2008. See D.C. Code § 20-108.01(a).
The language regarding a non-perpetrator of fraud in D.C. Code § 20-108.01(a) is the classic language of a statute of repose, not a statute of limitation. The Supreme Court held, in CTS Corp. v. Waldburger, that statutes of repose " put an outer limit on the right to bring a civil action . . . measured not from the date on which the claim accrues, but instead from the date of the last culpable act or omission of the defendant." 134 S.Ct. 2175, 2182, 189 L.Ed.2d 62 (2014). The difference between a statute of limitation and a statute of repose is apparent in the statute at issue, since the two year limit on commencement of an action is measured from " the discovery of the fraud," i.e., when the claim accrued, but the five year limit is measured from " the time of commission of the fraud." D.C. Code § 20-108.01(a). As the Supreme Court noted, a " statute of repose limit is not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered." CTS Corp., 134 S.Ct. at 2182 (internal quotation marks omitted). A statute of repose is " an 'absolute . . . bar' on a defendant's temporal liability." Id. at 2183 (alteration in original). Since no tolling applies to a statute of repose and the statute is an " absolute bar" to liability, the plaintiffs' claims based on the allegedly fraudulently obtained Consent Order are time-barred as to Defendant Brown, since the Complaint alleges that the fraud occurred in 2003, see Compl. ¶ ¶ 15, 17 (alleging " Burriss forged the signature of the decedent . . . on the title to his then new custom Cadillac Deville" shortly after his death on June 3, 2003), any claim was barred by 2008, and Defendant Brown became the estate's personal representative in 2009. In short, the statute of repose would have barred any effort on her part--even if she thought the claim had merit--to pursue Defendant Parker, who was not the perpetrator of the alleged fraud, for damages in 2009 or later. In any event, since the Probate Court found that neither Defendant Parker's entry into the Consent Order or decision not to seek its vacatur was a breach of fiduciary duty, see Clarification Order at 7, the plaintiffs' claim for breach
of fiduciary duty based on Defendant Brown's failure to seek to set aside the Consent Order is legally untenable even if it were not barred by the statute of repose.
None of the allegations against Defendant Brown state a claim upon which relief can be granted since the allegations either refer to facts specifically contradicted by the plaintiffs' filings or are barred by a statute of repose. Consequently, Defendant Brown's motion to dismiss is granted.
C. The Plaintiffs' Suit Is Dismissed With Prejudice
In this Circuit, dismissals with prejudice under Rule 12(b)(6) are disfavored and " warranted only when a trial court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Firestone v. Firestone, 76 F.3d 1205, 1209, 316 U.S.App.D.C. 152 (D.C. Cir. 1996) (internal quotation marks and citations omitted); accord Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 132-33, 403 U.S.App.D.C. 215 (D.C. Cir. 2012) (Kavanaugh, J. concurring) (noting that this Circuit's " decisions have imposed a 'high' bar for Rule 12(b)(6) dismissals with prejudice," and that such " case law on Rule 12(b)(6) dismissals is not fully aligned with the Rules" since " [o]n the contrary, Rule 41(b) contemplates that a Rule 12(b)(6) dismissal ordinarily operates as a dismissal with prejudice, unless the district court in its discretion states otherwise." ). This Court must balance the interests of efficiency and the timely resolution of complaints, as required by Federal Rule of Civil Procedure 1, with the liberal pleading standards contained in Rule 15(a) and the " high" Firestone standard in this Circuit for dismissal with prejudice. See Belizan v. Hershon, 434 F.3d 579, 583, 369 U.S.App.D.C. 160 (D.C. Cir. 2006) (" The standard for dismissing a complaint with prejudice is high." ); cf. In re APA Assessment Fee Litigation, No. 13-7032, 766 F.3d 39, 412 U.S.App.D.C. 324, 2014 WL 4377770, at *14, (D.C. Cir. Sept. 5, 2014) (reversing district court's grant of dismissal with prejudice where plaintiffs committed procedural violation but defendants made no showing of prejudice against them). In keeping with these various requirements, dismissal with prejudice is warranted here since the plaintiffs' complaint is barred in its entirety by claim preclusion, issue preclusion, the plaintiffs' own filings, or the applicable standard of repose. See supra Part III.A-B. Thus, any amendment of the plaintiffs' complaint would be futile since any claim based on the factual allegations made in the instant complaint would also be barred by preclusion as arising out of the same " transaction or occurrence." See U.S. Indus., Inc., 765 F.2d at 205. Moreover, the plaintiffs have not asked for leave to amend their Complaint and, indeed, have filed the identical Complaint in this District twice. As the D.C. Circuit has held, " it [can] hardly . . . be an abuse of discretion for the District Court not to . . . afford[ the plaintiffs] such leave sua sponte." Confederate Memorial Ass'n, Inc. v. Hines, 995 F.2d 295, 299, 301 U.S.App.D.C. 395 (D.C. Cir. 1993). Consequently, the plaintiffs' Complaint is dismissed with prejudice.
For the foregoing reasons, the defendants' motions to dismiss are granted. Since the fatal deficiencies in the plaintiffs' claims cannot be remedied by additional
factual pleading, this action is dismissed with prejudice.
The Court notes that, in the plaintiffs' previous action filed in this District, they filed two motions for reconsideration and multiple additional motions and amended memoranda to accompany those motions for reconsideration. See Case No. 13-350, Jarvis v. Parker, ECF Nos. 24, 28, 31, 36-44. The plaintiffs have continued the practice of filing multiple motions for leave to amend and supplement filings in this action. See ECF Nos. 16 (Pls.' Am. Opp'n Def. Parker's Mot. Dismiss); 19 (Pls.' Mot. Lv. File Suppl. Opp'n); 20 (Pls.' Mot. Lv. File Corrected Am. Opp'n); 25 (Pls. Reply Opp'n Mot. Lv. File); 27 (Pls.' Reply Opp'n Mot. Lv. File); 28 (Pls. Suppl. Opp'n). The parties are directed to review carefully this Court's Standing Order ¶ 12, ECF No. 9, which states in relevant part that " [m]otions to alter or amend judgment . . . are strongly discouraged. . . . The Court will not entertain a motion that (a) reasserts arguments previously raised and rejected by the Court; or (b) raises for the first time arguments which should have been advanced in the original motion." The parties' counsel are cautioned that any submission of a motion for reconsideration that does not comply with the aforementioned Order may subject the submitting counsel to sanctions under Federal Rule of Civil Procedure 11(c).
An appropriate Order accompanies this Memorandum Opinion.
Upon consideration of Defendant Darryl Parker's Motion to Dismiss, ECF No. 11, Defendant C. Hope Brown's Motion to Dismiss, or, in the alternative, Motion for Summary Judgment, ECF No. 12, the plaintiffs' Motion for Partial Summary Judgment, ECF No. 13, the plaintiffs' Motion for Hearing, ECF No. 18, the related legal memoranda in support and in opposition, the exhibits and declarations attached thereto, and the entire record herein, for the reasons set forth in the accompanying Memorandum Opinion, it is hereby
ORDERED that, because the plaintiffs' claims against Defendant Parker are barred by claim and issue preclusion, Defendant Parker's Motion to Dismiss is GRANTED; and it is further
ORDERED that, because the plaintiffs' claim against Defendant Brown is barred by the applicable statute of repose and otherwise does not state a claim upon which relief can be granted, Defendant Brown's Motion to Dismiss is GRANTED; and it is further
ORDERED that the plaintiffs' Motion for Partial Summary Judgment is DENIED as moot; and it is further
ORDERED that the plaintiffs' Motion for Hearing is DENIED; and it is further
ORDERED that the Clerk of the Court close this case.