United States District Court, District of Columbia
F. Hogan Senior United State Judge
before the Court is defendant District of Columbia's (the
"District") Motion to Dismiss [ECF No. 7],
requesting that the Court dismiss this action as duplicative
of plaintiff Allan Earl Lucas, Jr.'s lawsuit in Lucas
v. District of Columbia, Civil Action No. 13-00143
(TFH). Plaintiff has filed an opposition [ECF No. 8] and
defendant a reply [ECF No. 10]. For the reasons that follow,
the Court will grant the District's motion and dismiss
this action without prejudice to plaintiffs pursuit of any
claims against the District raised in any amended complaint
he may file in Lucas v. District of Columbia, Civil
Action No. 13-00143 (TFH).
September 30, 2015, in Lucas v. District of
Columbia, Civil Action No. 13-00143 (TFH), this Court
dismissed without prejudice plaintiffs First Amended
Complaint against the District for failure to exhaust
administrative remedies pursuant to the Comprehensive Merit
Personnel Act ("CMP A"). See Lucas v. District
of Columbia, 133 F.Supp.3d 176, 178 (D.D.C. 2015);
see generally Jackson v. District of Columbia, 254
F.3d 262, 270-71 (D.C. Cir. 2001) ("Because the
[plaintiffs] failed to exhaust their administrative remedies,
the district court should have dismissed the complaint
without prejudice, allowing the [plaintiffs] to refile once
they have completed the [administrative] grievance
procedures."). On November 17, 2015, plaintiff filed a
Motion to Reconsider and/or Motion for Leave to Amend.
November 25, 2015, while his Motion to Reconsider and/or
Motion for Leave to Amend was pending in Lucas v.
District of Columbia, Civil Action No. 13-00143 (TFH),
plaintiff filed his Complaint in this action, raising the
same legal claims and alleging substantially the same facts
as he did in the prior action-although he includes some
additional facts and more details that, according to him,
demonstrate he has exhausted his administrative remedies
under the CMPA. Compare First Amended Complaint,
Civil Action No. 13-00143 (TFH), ECF No. 34 with
Complaint, Civil Action No. 15-02059 (TFH), ECF No. 1. The
District argues that this action should be dismissed because
it is duplicative of plaintiff s prior action. Def.'s
Mem. in Supp. of Mot. to Dismiss ("Def.'s
plaintiff has no right to maintain two separate actions
involving the same subject matter at the same time in the
same court and against the same defendant.'"
Baird v. Gotbaum, 792 F.3d 166, 171 (D.C. Cir. 2015)
(quoting Zerilli v. Evening News Ass'n, 628 F.2d
217, 222 (D.C. Cir. 1980)). "To prevent duplicative
pleadings, this [Court] has the 'discretion to control
[its] docket[ ] by dismissing duplicative cases.'"
Sweeney v. United States Parole Comm 'n,
___F.Supp.3d ___, Civil Action No. 16-00404 (JEB), 2016
WL 3922335, at *2 (D.D.C. July 18, 2016) (quoting Clayton
v. District of Columbia, 36 F.Supp.3d 91, 94 (D.D.C.
2014)); see also Columbia Plaza Corp. v. Sec. Nat'l
Bank, 525 F.2d 620, 626 (D.C. Cir. 1975) ("Sound
judicial administration counsels against separate
proceedings, and the wasteful expenditure of energy and money
incidental to separate litigation of identical issues should
as noted above, plaintiff has filed a Complaint against the
same party, raising the same legal claims, and alleging
substantially the same facts as he did in his First Amended
Complaint in Lucas v. District of Columbia, Civil
Action No. 13-00143 (TFH). Although in that case the Court
dismissed without prejudice plaintiffs First Amended
Complaint, its dismissal order was non-final. See
Ciralsky v. C.I.A., 355 F.3d 661, 666 (D.C. Cir. 2004)
("[T]he dismissal without prejudice of a
complaint [i]s not final... because the plaintiff is
free to amend his pleading and continue the litigation[, ] ..
. [whereas] dismissal without prejudice of an action
(or 'case'), by contrast, . .. end[s] th[e] suit
[and] ... is final. ..."); see also Murray v.
Gilmore, 406 F.3d 708, 712 (D.C. Cir. 2005) ("Under
Ciralsky..., dismissal of an action without
prejudice is a final disposition but dismissal of a complaint
without prejudice typically isn't."). Moreover,
Plaintiff has indicated his desire to continue the litigation
in Lucas v. District of Columbia, Civil Action No.
13-00143 (TFH), by filing a Motion to Reconsider and/or
Motion for Leave to Amend in that case-indeed, prior to
filing his Complaint in this case.
plaintiff is "free to amend his pleading" in the
prior action, Ciralsky, 355 F.3d at 666,
is not free to pursue a separate and virtually identical
action "at the same time in the same court and against
the same defendant, " Baird, 792 F.3d at 171.
Therefore, dismissal of this action as duplicative of the
already-pending action in Lucas v. District of
Columbia, Civil Action No. 13-00143 (TFH), is wan-anted.
Cf. Sweeney, ____ F.Supp.3d at ____, 2016 WL
3922335, at *2 (noting that '"[w]here a plaintiff
brings duplicative claims against the same defendant, ...
[t]he [best] course is to dismiss the claims in the new case
as duplicative of the already-pending claims'"
(quoting Bowe-Connor v. McDonald, Civil Action No.
15-00269 (KBJ), 2015 WL 807537, at *1 (D.D.C. Feb. 25,
Court notes that the District raises, for the first time in
its reply memorandum, other legal bases for dismissal. In
doing so, the District denies plaintiff the opportunity to
respond to its previously unraised arguments and disregards
the structure of motions practice provided for in the Federal
Rules of Civil Procedure and in this Court's Local Rules.
Therefore, the Court has not considered these arguments in
rendering its decision on the District's Motion to
Dismiss. See, e.g, Long v. United States, 604
F.Supp.2d 119, 123 (D.D.C. 2009) (declining to consider
arguments raised for the first time in movant's reply
brief); see also Rollins Envtl. Servs. (NJ) Inc. v. U.S.
E.P.A., 937 F.2d 649, 652-53 n.2 (D.C. Cir. 1991)
("Issues may not be raised for the first time in a reply
brief."); Demery v. Montgomery Cty., MD, 602
F.Supp.2d 206, 212 n.4 (D.D.C. 2009) ("Because this
argument was raised for the first time in [the movants']
reply brief, it will not be considered."); Baloch v.
Norton, 517 F.Supp.2d 345, 348-49 n.2 (D.D.C. 2007)
("If the movant raises arguments for the first time in
his reply to the non-movant's opposition, the court [may]
ignore those arguments in resolving the motion ... ."),
aff'd sub nom. Baloch v. Kempthorne, 550 F.3d
1191 (D.C. Cir. 2008).
foregoing reasons, the Court will grant the District's
Motion to Dismiss [ECF No. 7] and dismiss this action. The
Court's dismissal will be without prejudice to plaintiffs
pursuit of claims against the District raised in any amended
complaint he may file in Lucas v. District of
Columbia, Civil Action No. 13-00143 (TFH). A separate
Order accompanies this Memorandum Opinion.