United States District Court, District of Columbia
MEMORANDUM OPINION & ORDER
D. BATES UNITED STATES DISTRICT JUDGE.
before the Court is  plaintiff Christabelle Mushala's
motion to alter or amend this Court's judgment granting
in part defendants' motions to dismiss. See Mushala
v. U.S. Bank, Nat'l Ass'n, Civ. No. 18-1680,
2019 WL 1429523, at *1 (D.D.C. Mar. 29, 2019). The complete
legal background, facts, and procedural history of this case
are set forth in the Court's earlier memorandum opinion.
See id. at *1-4. In short, after Wells Fargo
declared Mushala's 2008 mortgage loan in default, U.S.
Bank, National Association (“US Bank”) acquired
the promissory note memorializing the loan (the
“Note”). Id. at *2. U.S. Bank-which in
turn engaged Specialized Loan Servicing LLC
(“SLS”) as the loan servicer and BWW Law Group,
LLC (“BWW”) as foreclosure counsel-then filed a
foreclosure action in D.C. Superior Court to enforce the
terms of the Note. Id. at *2-3. The nearly
three-year litigation that ensued ultimately resulted in a
default judgment against Mushala and the sale of her home to
a third party. Id.
2018, Mushala filed suit against defendants, who removed the
case to this Court. Id. at 3. Mushala alleged, among
other things,  that defendants' misrepresentations
concerning the legitimacy of the Note, U.S. Bank's
standing to foreclose, and the amount due under the Note
violated the Fair Debt Collection Practices Act
(“FDCPA”), the District of Columbia Mortgage
Lender and Broker Act (“MLBA”), and the District
of Columbia Consumer Protection Procedures Act
(“CPPA”). Id. at *4. Defendants moved to
dismiss, alleging inter alia that most of those
claims were barred by res judicata. Id.;
see Partial Mot. to Dismiss Pl.'s Compl. [ECF
No. 4] (joint motion by U.S. Bank and SLS); Mot. to Dismiss
[ECF No. 5] (motion by BWW). This Court agreed, dismissing the
challenged FDCPA, MLBA, and CPPA claims as barred by res
judicata and finding, in addition, that Mushala had failed to
state a claim under the CPPA. Mushala, 2019 WL
1429523, at *7-9.
now moves to alter or amend the judgment pursuant to Federal
Rule of Civil Procedure 59(e). Mem. in Support of Pl.'s
Mot. to Alter or Amend (“Pl.'s Mot.”) [ECF
No. 34] at 1. A grant of a motion to alter or amend a
judgment under Rule 59(e) is an “extraordinary
measure.” Leidos, Inc. v. Hellenic Republic,
881 F.3d 213, 217 (D.C. Cir. 2018) (citing Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Courts
may grant such a motion only if “there is an
‘intervening change of controlling law, '”
“if new evidence becomes available, ” or
“if the judgment should be amended in order to correct
‘a clear error or prevent manifest
injustice.'” Id. (quoting
Firestone, 76 F.3d at 1208). A motion to alter or
amend a court's judgment does not provide a party with a
blank slate from which to relitigate old issues or present
new legal theories in support of its claims. Id.
(citing Exxon Shipping v. Baker, 554 U.S. 471, 486
n.5 (2008); Patton Boggs LLP v. Chevron Corp., 683
F.3d 397, 403 (D.C. Cir. 2012)).
contends that the Court committed “clear error”
in finding that res judicata applies. Pl.'s Mot. at 1-2.
She appears to argue that the Court's res judicata
analysis is erroneous because her claims are permissive
counterclaims under Federal Rule of Civil Procedure 13.
See Pl. Mushala's Reply in Supp. of her Mot. to
Alter or Amend (“Pl.'s Reply”) [ECF No. 40]
at 3-4. Rule 13 provides that counterclaims may either be
“compulsory” or “permissive.”
See Fed.R.Civ.P. 13(a), (b). As relevant here, a
party's counterclaim is compulsory-i.e., it must
be brought at the time the party faces the opposing claim and
not thereafter-if it “arises out of the transaction or
occurrence that is the subject matter of the opposing
party's claim.” Fed.R.Civ.P. 13(a)(1)(A). A
counterclaim is “permissive, ” and so may be
stated either in the initial suit or a subsequent one, if it
is not compulsory. See Fed.R.Civ.P. 13(b). However,
even permissive counterclaims are barred if their successful
prosecution would nullify or otherwise impair the judgment in
the previous suit. See Capitol Hill Grp. v. Pillsbury,
Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 492 (D.C.
Cir. 2009). While res judicata “generally bar[s]
compulsory counterclaims . . . [it does] not always bar
permissive ones.” Id. at 492. Based on the
foregoing counterclaim rules, Mushala now suggests that her
claims are not barred by res judicata because they are
permissive counterclaims that would not nullify or impair the
prior Superior Court judgment. See Pl.'s Reply
initial matter, Mushala articulated this argument in full for
the first time in her reply brief. See Pl.'s
Mot. at 2 (citing one case about nullification of a prior
judgment without explaining the impact of the principle on
Mushala's present claims in relation to defendants'
prior suit); Pl.'s Reply at 2-7 (fully articulating
Mushala's argument based on counterclaim rules, including
nullification considerations). Because her argument is not
properly raised in her opening motion, it technically is
waived. See MBI Grp., Inc. v. Credit Foncier Du
Cameroun, 616 F.3d 568, 575 (D.C. Cir. 2010)
(“‘[D]istrict courts . . . generally deem
arguments made only in reply briefs to be forfeited . . .
.'”) (quoting Pardo-Kronemann v. Donovan,
601 F.3d 559, 610 (D.C. Cir. 2010)).
were this argument properly raised, however, the Court would
reject it. This Court looks to D.C. law to determine the
preclusive effect of judgments rendered by the D.C. Superior
Court. See Quick v. EduCap, Inc., 318 F.Supp.3d 121,
139 (D.D.C. 2018). Under D.C. law, res judicata proscribes
the relitigation of claims arising from the same cause of
action that were (or could have been) litigated to final
judgment in the first action. See EDCare Mgmt., Inc. v.
DeLisi, 50 A.3d 448, 451 (D.C. 2012); Faulkner v.
Gov't Emps. Ins. Co., 618 A.2d 181, 183 (D.C. 1992);
see also Mushala, 2019 WL 1429523, at *6.
“[A]ctions arise out of the same cause of action”
when they stem from “a common nucleus of facts.”
Patton v. Klein, 746 A.2d 866, 870 (D.C. 1999)
(citation omitted). For the reasons explained in greater
length in the Court's previous opinion, res judicata
undoubtedly bars the relevant claims here. See
Mushala, 2019 WL 1429523, at *7-9. The FDCPA, MLBA, and
CPPA claims that the Court dismissed are each predicated on
factual allegations that already were litigated to conclusion
in Superior Court as part of the foreclosure action-namely,
that defendants lacked standing to foreclose, had no rights
in the Note, and charged Mushala an inflated amount under the
counterclaim rules, on which Mushala relies in her reply, do
not alter this analysis. Even if considered through the lens
of Rule 13, Mushala's counterclaims would be compulsory,
not permissive, and thus barred at this stage. To determine
whether a counterclaim arises from the same
“transaction or occurrence” as the original
claim, and therefore is compulsory, courts typically consider
one or more of the following tests: whether the counterclaim
(1) largely raises the same issues of fact and law as the
original claim; (2) is supported by substantially the same
evidence as the original claim; (3) bears any logical
relationship to the original claim; and (4) would be barred
by res judicata if brought in a subsequent lawsuit. See
Feld Entm't Inc. v. Am. Soc'y for the Prevention of
Cruelty to Animals, 873 F.Supp.2d 288, 305 (D.D.C. 2012)
(citing 6 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1410 (3d ed.
the relevant claims would unquestionably be compulsory: they
raise the same factual and legal issues as in the foreclosure
action, would draw from the same documents and other evidence
as would that suit, are logically tied to defendants'
ability to legally foreclose through that action, and are
barred by res judicata. See Mushala, 2019 WL
1429523, at *7-9; Feld Entm't Inc., 873
F.Supp.2d at 305. This is not to say that subsequent FDCPA,
MLBA, or CPPA counterclaims are in every case compulsory in
relation to prior foreclosure actions. If, for example, such
claims stem from a distinct set of facts and thus arise out
of a different transaction or occurrence, they may well be
permissive. But when they arise from identical facts, as
here, they are compulsory and therefore barred in a
subsequent suit. See Feld Entm't Inc., 873
F.Supp.2d at 305.
even if Mushala's claims were not compulsory
counterclaims under Rule 13, and were therefore permissive,
Mushala's suit would still be barred. Contrary to
Mushala's suggestion, success on the merits of her
present claims would, in fact, “impair the rights
established” by the Superior Court's judgment.
Quick, 318 F.Supp.3d at 140 (citing Capitol Hill
Grp., 569 F.3d at 492). If this Court found for Mushala,
any decision would essentially be predicated on finding
defendants lacked standing to foreclose. See
Mushala, 2019 WL 1429523, at *4. Notwithstanding
Mushala's statement that she seeks only damages and not
to unravel the foreclosure, any damages award would
necessarily be premised on a legal conclusion contradicting
the Superior Court's judgment, calling into question its
continued validity. See id.; see also
Quick, 318 F.Supp.3d at 140-41 (“[I]f [p]laintiffs
were to prove that [defendant] obtained standing in the D.C.
Superior Court matters through fraud, that would effectively
prevent [defendant], and perhaps others, from enforcing those
. . . judgments.”).
the Court did not commit clear error in holding that res
judicata bars the relevant claims. For the foregoing reasons,
and upon consideration of the parties' memoranda,
applicable law, and the entire record herein, it is hereby
that  plaintiff's motion to alter or amend is