Polk v. Sears Roebuck & Co et al

Filing 16

ORDER granting 8 Motion to Dismiss for failure to state a claim upon which relief can be granted. This action is dismissed with prejudice. Signed by Chief Judge William H. Steele on 5/8/2012. Copy mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

MARCIA T. POLK,
Plaintiff,
v.
SEARS, ROEBUCK, AND CO., et al.,
Defendants.

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CIVIL ACTION 11-0725-WS-B

ORDER
This matter comes before the Court on defendants’ Motion to Dismiss (doc. 8). An Order
(doc. 14) entered on April 4, 2012 directed plaintiff to file her response to the Motion, supported
by authority as appropriate, on or before April 18, 2012. That deadline expired weeks ago, with
plaintiff neither filing an opposition brief nor requesting an enlargement of time. Accordingly,
the Motion is now ripe for disposition.
I.

Relevant Background.
On December 22, 2011, plaintiff, Marcia T. Polk, proceeding pro se, filed a Complaint in

this District Court against named defendants Sears, Roebuck, and Co. and Sears Holdings
Corporation (collectively, “Sears”).1 As amended, Polk’s pleading alleges that she is bringing
this action “for violations of her individual and associational rights covered under Title VII.”
(Doc. 12-1, at 1.) The Amended Complaint states that Polk “is a qualified individual with
disabilities,” and that Sears discriminated against her in connection with her employment as a
retail support associate in the following respects: (i) “Refusal to provide reasonable
accommodations,” in the form of limiting her exposure to fragrances and other irritants,
modifying her work schedule to facilitate her Saturday medical appointments and treatments, and
1

In deference to plaintiff’s pro se status, the Court affords her pleadings a liberal
construction for purposes of the pending motion. See Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998) (“Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally construed.”).

allowing her to telecommute; (ii) failure to “respond to numerous requests to mediate and
provide remedy for severe and malicious harassment and discrimination directed towards
Plaintiff, due to [her] disabilities,” and failure “to enforce dress code policy against the wearing
of fragrances;” (iii) “Denial to access to treatment by changing work schedule,” and (iv) “Need
for Accommodations was Willfully and maliciously denied though the accommodations were
available.” (Doc. 12-1, at 2-5.) Polk contends that there is federal jurisdiction over this action
because her claim is for “Violation of ADA/Employment;” however, she also purports to bring
state-law claims relating to the same facts and circumstances, on theories of quantum meruit,
intentional infliction of emotional distress, breach of contract and negligence.
This is not the first time that Polk has sued Sears in this District Court. To the contrary,
in May 2011, Polk filed an Amended Complaint in Civil Action No. 10-0636-CG-M (hereinafter,
“Polk I”) to assert claims against Sears (again, under the names “Sears, Roebuck and Company”
and “Sears Holdings Corporation”) for “Violation of ADA/Employment.” (Civil No. 10-636,
doc. 18, at 7.) Much like her present complaint, Polk’s Amended Complaint in Polk I alleged
that Sears had failed to “provide remedy for severe and malicious harassment and discrimination
directed towards Plaintiff, due to my disabilities, covered under Title VII.” (Id. at 1.) Polk
further alleged in her pleading in Polk I that Sears “disregard[ed] the recommended
accommodations” for her disability, that she was “mocked” by Sears management for her
disabilities and that, rather than accommodating her chemical/fragrance sensitivity, Sears
exacerbated it by, for example, placing an air freshener on a manager’s desk. (Id. at 2, 4, 5.)
On February 28, 2012, Judge Granade entered an order in Polk I, granting Sears’ Rule
12(b)(6) motion in its entirety and dismissing Polk’s claims against Sears on the ground that her
claims against those corporate defendants were untimely. (See Civil No. 10-636, at doc. 53.)
Polk did not pursue an appeal from this dismissal order, which had the effect of terminating the
Polk I litigation.
In the case at bar, Sears filed a Motion to Dismiss the Complaint pursuant to Rule
12(b)(6), Fed.R.Civ.P. Defendants’ position is that this action is barred on res judicata grounds
because Polk’s claims asserted herein either were or could have been litigated in Polk I. In the
April 4 Order establishing a briefing schedule for this Rule 12(b)(6) Motion, the undersigned
specifically directed Polk’s attention to the res judicata issue. (See doc. 14, at 5 n.4 (“The Court
is particularly interested in hearing from plaintiff as to why she contends that the causes of action
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she asserts in this case survive scrutiny under the doctrine of res judicata, in light of the dismissal
order entered in Polk I.”).) Notwithstanding the Court’s directive that she address these matters,
Polk neglected to do so, or to respond to the Motion in any respect.
II.

Legal Standard for Motion to Dismiss.
On a Rule 12(b)(6) motion to dismiss for failure to state a claim, “the court construes the

complaint in the light most favorable to the plaintiff and accepts all well-pled facts alleged … in
the complaint as true.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009); see
also Speaker v. U.S. Dep’t of Health and Human Services Centers for Disease Control and
Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (“In ruling on a 12(b)(6) motion, the Court
accepts the factual allegations in the complaint as true and construes them in the light most
favorable to the plaintiff.”); Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010)
(similar).
To withstand Rule 12(b)(6) scrutiny, plaintiffs must plead “enough facts to state a claim
to relief that is plausible on its face,” so as to “nudge[] their claims across the line from
conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (citation omitted). Thus, minimum pleading standards “require[] more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. As the Eleventh Circuit has explained, Twombly/Iqbal principles
require that a plaintiff plead “enough facts to state a claim to relief that is plausible on its face,”
whose allegations are “enough to raise a right to relief above the speculative level.” Speaker,
623 F.3d at 1380 (citations omitted). The factual content of the complaint must “allow[] the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citations omitted); see also Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 958 (11th Cir.
2009) (“A plaintiff must provide enough factual allegations, which are assumed to be true, to
raise a right to relief above the speculative level.”).
As noted, Polk is proceeding pro se in this action. For that reason, her pleadings are
entitled to deferential review. See, e.g., Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30
L.Ed.2d 652 (1972) (pro se complaints are held “to less stringent standards than formal pleadings
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drafted by lawyers”). But Polk’s pro se status does not exempt her from complying with the
Federal Rules of Civil Procedure. See Moton v. Cowart, 631 F.3d 1337, 1341 n.2 (11th Cir.
2011).2 Furthermore, applicable precedents forbid this Court from acting as Polk’s de facto
counsel or rewriting pleadings on her behalf to navigate her claims past a Rule 12(b)(6)
challenge. See GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th
Cir. 1998) (“even in the case of pro se litigants this leniency does not give a court license to
serve as de facto counsel for a party … or to rewrite an otherwise deficient pleading in order to
sustain an action”). None of this can come as a surprise to Polk; after all, the Court specifically
apprised her of these requirements and restrictions in the April 4 Order. (See doc. 14, at 4 n.3.)
This Court’s inability to formulate Polk’s legal arguments for her is amplified by her
unexplained failure to offer any response to the Motion to Dismiss. It is well-established that
courts cannot make a party’s arguments for it or “fill in the blanks” on that party’s behalf. See,
e.g., Fils v. City of Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011) (“district courts cannot
concoct or resurrect arguments neither made nor advanced by the parties”); Resolution Trust
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden upon the district
court to distill every potential argument that could be made based upon the materials before it
….”); Minemyer v. B-Roc Representatives, Inc., 695 F. Supp.2d 797, 809 (N.D. Ill. 2009)
(“[T]his is an adversarial system. It is not a court’s task to research legal arguments on a party’s
behalf ….”).
The Court’s analysis and consideration of the Motion to Dismiss is informed by all of the
foregoing principles.
III.

Plaintiff’s Claims are Barred by Res Judicata.
Defendants’ straightforward argument is that the Amended Complaint fails to state a

claim upon which relief can be granted because all claims asserted therein are barred by res
judicata.
2

See also Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (explaining that
“we are to give liberal construction to the pleadings of pro se litigants,” but that “we nevertheless
have required them to conform to procedural rules”) (citation omitted); Moon v. Newsome, 863
F.2d 835, 837 (11th Cir. 1989) (a pro se party “is subject to the relevant law and rules of court
including the Federal Rules of Civil Procedure”); Williams v. Aircraft Workers Worldwide, Inc.,
--- F. Supp.2d ----, 2011 WL 2111992, *2 (S.D. Ala. May 24, 2011) (similar).

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“Res judicata is a judicially crafted doctrine, created to provide finality and conserve
resources.” Maldonado v. U.S. Atty. Gen., 664 F.3d 1369, 1375 (11th Cir. 2011).3 “The doctrine
facilitates the conclusive resolution of disputes by reducing the expense and vexation attending
multiple lawsuits, conserv[ing] judicial resources, and foster[ing] reliance on judicial action by
minimizing the possibility of inconsistent decisions.” Shurick v. Boeing Co., 623 F.3d 1114,
1116 (11th Cir. 2010) (citation and internal quotation marks omitted). The black-letter rule is a
simple one: “[A] final judgment on the merits bars the parties to a prior action from re-litigating
a cause of action that was or could have been raised in that action.” In re Piper Aircraft Corp.,
244 F.3d 1289, 1296 (11th Cir. 2001). Res judicata applies if all of the following four elements
are present: “(1) there is a final judgment on the merits; (2) the decision was rendered by a court
of competent jurisdiction; (3) the parties, or those in privity with them, are identical in both suits;
and (4) the same cause of action is involved in both cases.” Maldonado, 664 F.3d at 1375 (citing
Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999)). If those elements are
present, “[t]he court next determines whether the claim in the new suit was or could have been
raised in the prior action; if the answer is yes, res judicata applies. … If even one of these
elements is missing, res judicata is inapplicable.” Piper Aircraft, 244 F.3d at 1296.
There can be no question that the second and third elements are present here; indeed, this
District Court was plainly a court of competent jurisdiction with respect to Polk I (as to which
subject-matter jurisdiction was conferred by 28 U.S.C. §§ 1331 and 1343, given Polk’s federal
civil rights claims brought under the ADA and Title VII in that action). Likewise, all parties
named in this action were also parties in Polk I, so the identity-of-parties element is plainly
satisfied.4
3

This inquiry is governed by federal preclusion law, rather than Alabama
preclusion law, because Polk I (the ruling whose preclusive reach is at issue) was a federal
decision. See CSX Transp., Inc. v. Brotherhood of Maintenance of Way Employees, 327 F.3d
1309, 1316 (11th Cir. 2003) (“We now hold that federal preclusion principles apply to prior
federal decisions, whether previously decided in diversity or federal question jurisdiction.”).
4

To be sure, in Polk I, plaintiff initially named as defendants a host of individual
Sears employees who are not parties in the case at bar. But Polk voluntarily abandoned her
claims against those individuals in Polk I and subsequently proceeded solely against Sears. (See
Civil Action 10-636, at docs. 26 & 27.) At the time of Judge Granade’s dismissal order in Polk
I, there were no defendants other than Sears. For purposes of the res juidicata impact of Polk I,
then, the Court readily finds perfect identity of the parties in the two cases.
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The next question is whether final judgment on the merits was entered in Polk I. As
noted, Judge Granade dismissed Polk’s claims against Sears in that case on a Rule 12(b)(6)
motion for failure to state a claim. The order did not specify whether the dismissal was with or
without prejudice. However, nothing in the dismissal order suggested that she intended the
dismissal to constitute anything other than an adjudication on the merits.5 As a general
proposition, dismissal of a complaint for failure to state a claim operates as an adjudication on
the merits for res judicata purposes, even where the dismissal order does not specify whether
such dismissal was with prejudice or without prejudice. See N.A.A.C.P. v. Hunt, 891 F.2d 1555,
1560 (11th Cir. 1990) (“unless the court specifies otherwise, dismissal on the grounds that the
facts and law show no right to relief operates as an adjudication on the merits”); Bierman v.
Tampa Elec. Co., 604 F.2d 929, 930-31 (5th Cir. 1979) (where district court dismissed action sua
sponte for failure to prosecute, and did not specify whether dismissal was with or without
prejudice, dismissal acted as adjudication on merits, such that res judicata barred subsequent
action presenting same claim); Hall v. Tower Land and Investment Co., 512 F.2d 481, 483 (5th
Cir. 1975) (where district judge dismissed first action for failure to state a claim on which relief
can be granted, but did not indicate whether dismissal order was “with prejudice” or “without
prejudice,” that order “operates as an adjudication on the merits” for res judicata purposes);
Douris v. County of Bucks, 2001 WL 695019, *3-4 (E.D. Pa. June 18, 2001) (dismissal order that
did not specifiy whether it was with or without prejudice operated as an adjudication on the
merits where dismissal was for failure to state a claim under Rule 12(b)(6)); 9 Charles Alan
Wright et al., Federal Practice & Procedure § 2373 (3d ed.) (“Dismissals under Rule 12(b)(6)
for failure to state a claim on which relief can be granted ordinarily are deemed to be an

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For example, there is case law for the proposition that “[a] dismissal without
prejudice is not an adjudication on the merits and thus does not have a res judicata effect.”
Hughes v. Lott, 350 F.3d 1157, 1161 (11th Cir. 2003); see also Buck Creek Industries, Inc. v.
Alcon Const., Inc., 631 F.2d 75, 78 n. 5 (5th Cir. 1980) (explaining that if prior dismissal is
without prejudice, district court could simply brush aside res judicata defense because prior order
did not amount to dismissal on the merits); Johnson v. Eli Lilly and Co., 689 F.Supp. 170, 175
(W.D.N.Y.1988) (“a judgment rendered ‘without prejudice’ is typically considered not to be on
the merits, and insufficient to support the application of res judicata”). But the Polk I dismissal
order neither specifies nor supports a reasonable inference that Judge Granade intended for that
dismissal to be without prejudice. Polk has not argued otherwise.

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adjudication on the merits.”). Accordingly, the Court finds that the element of a “final judgment
on the merits” is present here.
The fourth initial element for res judicata is that “the same cause of action is involved in
both cases.” As to that element, “two cases are generally considered to involve the same cause
of action if the latter case arises out of the same nucleus of operative fact, or is based upon the
same factual predicate, as the former one.” Maldonado, 664 F.3d at 1375-76 (citations and
internal quotation marks omitted); see also Piper Aircraft, 244 F.3d at 1297 (“[I]f a case arises
out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former
action, … the two cases are really the same ‘claim’ or ‘cause of action’ for purposes of res
judicata.”) (citation omitted). This is not a close question. In the Amended Complaint filed in
Polk I, plaintiff alleged claims of disability discrimination and harassment in connection with her
employment at Sears, including specific claims that Sears ignored requests for accommodations
for her disabilities and mocked her by, for example, placing air fresheners in the office, knowing
that they would trigger her sensitivity to fragrances. The Amended Complaint in the present
action reads much the same way. Here, Polk is bringing claims for disability discrimination,
among others, based on allegations that Sears treated her poorly during her employment by
failing to accommodate her disabilities, harassing her because of her disabilities, irritating her
chemical sensitivity by “placing air fresheners at work stations,” and so on. It is clear that these
claims relate to the same stint of employment and the same events and occurrences that formed
the factual predicate of Polk I. A fair, side-by-side reading of the two pleadings in the two cases
unambiguously demonstrates that both sets of claims are, if not identical, at least rooted in the
very same nucleus of operative fact. They address the same events from the same time period in
the same terms asserting largely the same claims. This is the very definition of the fourth
element of the res judicata inquiry. See Maldonado, 664 F.3d at 1376 (“Res judicata acts as a
bar not only to the precise legal theory presented in the previous litigation, but to all legal
theories and claims arising out of the same operative nucleus of fact.”).
All four initial elements of res judicata being satisfied, the final inquiry is “whether the
claim in the new suit was or could have been raised in the prior action.” Piper Aircraft, 244 F.3d
at 1296. Plaintiff has offered no explanation for why her claims asserted in the case at bar could

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not have been asserted in the first suit.6 Moreover, no basis for any such assertion is readily
discernible in the record. Defendants have shown that Sears terminated Polk’s employment in
August 2010, more than eight months before she filed the Amended Complaint in Polk I that first
named Sears as a party defendant and more than 16 months before Judge Granade entered her
dismissal order in Polk I. Polk’s claims against Sears in the present action are that Sears refused
to provide reasonable accommodation, terminated her employment, failed to remedy harassment,
denied her access to treatment, and otherwise denied her accommodations, all in violation of the
Americans with Disabilities Act and also giving rise to state-law claims of quantum meruit,
intentional infliction of emotional distress, breach of contract, and negligence. All or nearly all
of these claims were actually brought and litigated in Polk I. Those that were not raised in Polk I
could have been. Defendants have presented a persuasive argument on this point that plaintiff
has made no effort to rebut. As noted supra, the Court cannot and will not act as Polk’s lawyer
or attempt to “fill in the blanks” by formulating arguments on her behalf that she has not raised
for herself. It certainly does not appear that any of Polk’s claims in this action could not have
been raised in Polk I. To the extent that Polk disagrees, it was incumbent on her to explain why.
Yet she chose to remain silent.7
The doctrine of res judicata exists for good reason. “The law does not allow [the
plaintiff] the luxury of returning to federal court with the same set of facts until he succeeds in
alleging a federal cause of action.” Begala v. PNC Bank, Ohio, Nat. Ass’n, 214 F.3d 776, 779-80
(6th Cir. 2000). Were the law otherwise, the inefficiencies visited on courts and litigants would
6

At most, she has stated in conclusory fashion that “[t]his complaint is NOT the
same as previous complaint.” (Doc. 13, at 5.) But that is not the question. The question is
whether plaintiff’s claims in this case could have been asserted in Polk I. Polk has never
identified any impediment to her ability to bring her present claims in Polk I had she so desired.
7

This is so even though this Court went out of its way to encourage Polk to explain
her position on the res judicata issue in a responsive brief. In particular, the April 4 Order placed
her on notice that “[t]he Court is particularly interested in hearing from plaintiff as to why she
contends that the causes of action she asserts in this case survive scrutiny under the doctrine of
res judicata, in light of the dismissal order in Polk I.” (Doc. 14, at 5 n.4.) Notwithstanding this
express invitation to be heard, with a focused directive that she address the res judicata issue at
the heart of Sears’ Rule 12(b)(6) motion, Polk said nothing. As such, she cannot be heard to cry
foul when this Court proves unable or unwilling to read her mind or guess what her arguments
might have been, had she seen fit to articulate them.

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be nothing short of staggering, as plaintiffs stymied in their initial attempts to bring claims in
federal court could try over and over again by stitching together various permutations of factual
allegations and legal theories – at vast expense to opposing parties and at heavy burden to
resource-strapped courts – until they came up with a combination that sticks. This case
illustrates the importance of the rule in action. Polk had an opportunity to assert all of her claims
in the first lawsuit she filed against defendants after Sears terminated her employment. There
was no apparent justification in fact or law for her to file a second lawsuit based on the same
underlying events and circumstances, and to pursue same after Judge Granade adjudicated and
dismissed the first lawsuit on the merits. In short, the Court finds that the doctrine of res judicata
bars Polk from proceeding against Sears with her claims in this action, when there was a prior
adjudication on the merits by a court of competent jurisdiction of claims involving the same
causes of action between the same parties, and all of Polk’s claims in this action were or could
have been asserted in Polk I.
IV.

Conclusion.
For all of the foregoing reasons, defendants’ Motion to Dismiss (doc. 8) is granted

pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief can be
granted. This action is dismissed with prejudice. A separate judgment will enter.

DONE and ORDERED this 8th day of May, 2012.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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