EL-AMIN v. VIRGILLO
MEMORANDUM OPINION accompanying final order issued separately this day. Signed by Judge Amy Berman Jackson on 5/5/17.(ah)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 16-75 (ABJ)
Plaintiff, appearing pro se, has sued his former attorney, Joseph Virgilio, for legal
malpractice and fraud. The claims are based on Virgilio’s representation of plaintiff in the
District of Columbia Court of Appeals (“DCCA”) on direct appeal of his state conviction for
armed robbery. The defendants, Joseph Virgilio, Esq. and Office of Attorney at Law, PLLC,
have moved to dismiss on several grounds, including res judicata. See Defs.’ Mot. to Dismiss
the Am. Compl. [Dkt. # 25]. Since the Superior Court of the District of Columbia previously
adjudicated the merits of the same claims against the same defendants, the court agrees that this
action is precluded. So the court will grant defendants’ motion without addressing their other
valid reasons for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See
Mot. at 1-2.
1. Plaintiff’s Criminal Proceedings
In May 2014, plaintiff was charged with armed robbery. In July 2014, the grand jury
returned a superseding indictment adding a second count of assault with a dangerous weapon
(“ADW”). See Defs.’ Mem. at 2 [Dkt. # 25-1] and Ex. 1. In September 2014, a jury trial was
held in D.C. Superior Court before Judge William M. Jackson. Plaintiff was represented by
appointed counsel, April Downs.
Based on the facts adduced at trial, the trial judge
determined that the assault with a dangerous weapon was simply a lesser included offense of
armed robbery. Therefore, he dismissed the separate ADW charge on September 16, 2014, and
declined defense counsel’s request to instruct the jury on that charge. See Am. Compl. and
Attachs. [Dkt. # 23]; Defs.’ Mem. at 2. Plaintiff was convicted of armed robbery and sentenced
on November 14, 2014, to a prison term of ten years. Defs.’ Mem. at 2.
On April 2, 2015, the DCCA appointed Virgilio to represent plaintiff on direct appeal.
After unsuccessfully moving in the DCCA to withdraw as appellate counsel and to permit
plaintiff to proceed pro se, Virgilio filed an appellate brief on November 23, 2015. Id. at 2-3.
While the appeal was pending, Virgilio was served with plaintiff’s lawsuit filed in D.C. Superior
Court. Virgilio then filed a motion on January 21, 2016, to withdraw as appellate counsel, which
was granted on February 17, 2016. The DCCA appointed new counsel to represent plaintiff on
direct appeal. See Defs.’ Mem. at 3.
2. Plaintiff’s Prior Lawsuits
Plaintiff filed two separate actions against the defendants in Superior Court. The first
complaint, filed on December 31, 2015, alleging fraud, was summarily dismissed on March 8,
2016. Defs.’ Mem. at 3; see Order [Dkt. # 25-2 at 30]. The second complaint, filed on January
4, 2016, and amended on January 15, 2016, to add Virgilio’s law office, alleged negligent
misrepresentation and fraud. Defs.’ Mem. at 3-4.
The Superior Court resolved the merits of the latter action in a decision issued in April
2016. There, plaintiff alleged that Virgilio had “omitted a legal argument from the appellate
brief he submitted on Plaintiff’s behalf” with respect to the alleged “acquittal” of the ADW
charge. El-Amin v. Virgilio, No. 2016 CA 00009 B, at 1 (D.C. Super. Ct. Apr. 5, 2016) [Dkt. #
25-2 at 32-38]. He contended that Virgilio had “erred by not addressing the judge’s decision not
to instruct the jury on the lesser included offense,” thereby “omitt[ing] a material fact that he had
a duty to disclose.” Id. at 2. Plaintiff sought “injunctive relief of incarceration” and $1.6 million
in monetary damages. Id.
The Superior Court determined as to plaintiff’s “claims for fraudulent and negligent
misrepresentation or omission” that he had “failed to adequately plead reliance or damages . . . as
is required in a case pleading fraudulent misrepresentation.” Id. at 6. As to plaintiff’s assertion
“that his ‘fact of acquittal’ was omitted from the appellate brief prepared by Defendant Virgilio,”
the court determined that because plaintiff was convicted of armed robbery, his “claim that the
Defendants acted negligently by failing to include an acquittal which did not occur is without
merit.” Id. Finally, as to plaintiff’s claim that defendants had “falsely omitted or represented a
material fact, namely, Defendant Virgilio’s failure to include the trial court’s decision not to
instruct the jury on the lesser included charge of [ADW] among the grounds for [his] appeal,”
the court found that “Virgilio’s decisions regarding which legal arguments to put forth in
furtherance of Plaintiff’s appeal is [sic] a matter of discretion, which if made with ‘informed
professional judgment’ and ‘reasonable care and skill,’ cannot form the basis of a malpractice
claim . . . nor constitute professional negligence or fraud.” Id. at 6-7; see also Pl.’s App’x A
[Dkt. # 37 at 6] (Virgilio letter to plaintiff opining on the correctness of the trial judge’s
treatment of the ADW charge).
The Superior Court concluded that plaintiff had failed to allege any facts to demonstrate
that Virgilio’s decisions “with respect to legal arguments fell below the applicable standard of
care as required in a legal malpractice action.” Id. at 7. “That decision is currently on appeal.”
Defs.’ Mem. at 4.
In ruling on a Rule 12(b)(6) motion to dismiss, the court “may consider only the facts
alleged in the complaint, any documents either attached to or incorporated in the complaint[,]
and matters of which . . . judicial notice” may be taken. EEOC v. St. Francis Xavier Parochial
School, 117 F.3d 621, 624 (D.C. Cir. 1997). Court proceedings are matters of which judicial
notice may be taken. See Jenson v. Huerta, 828 F. Supp. 2d 174, 179 (D.D.C. 2011), quoting
Lewis v. Drug Enforcement Admin., 777 F. Supp. 2d 151, 159 (D.D.C. 2011) (“The court may
take judicial notice of public records from other court proceedings.”); Akers v. Watts, 589 F.
Supp. 2d 12, 15 (D.D.C. 2008) (taking “judicial notice of the records of this Court and of other
federal courts”) (citations omitted). And “res judicata may be asserted in a motion to dismiss
when ‘all relevant facts are shown by the court’s own records, of which the court takes notice.’ ”
Nader v. Democratic Nat. Comm., 590 F. Supp. 2d 164, 169 (D.D.C. 2008), citing Hemphill v.
Kimberly-Clark Corp., 530 F. Supp. 2d 108, 111 (D.D.C. 2008) (other citation omitted).
Under the doctrine of res judicata, a claim previously adjudicated on the merits is
foreclosed from being relitigated in a new action. Specifically, “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.” Smalls v. United States, 471 F.3d 186, 192
(D.C. Cir. 2006). An “order is ‘final’ for res judicata purposes even though it is pending on
appeal.” Nader, 590 F. Supp. 2d at 169, citing Nat’l Post Office Mail Handlers v. Am. Postal
Workers Union, 907 F.2d 190, 192 (D.C. Cir. 1990); Hunt v. Liberty Lobby, Inc., 707 F.2d 1493,
1497 (D.C. Cir. 1983).
Res judicata bars not only claims that were actually brought in the prior action, but also
those claims or causes of action that “ ‘could have been raised in that action.’ ” Drake v. FAA,
291 F.3d 59, 66 (D.C. Cir. 2002) (emphasis in original), quoting Allen v. McCurry, 449 U.S. 90,
94 (1980); see also Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981) (“[P]arties to a
suit . . . may not relitigate any ground for relief which they already have had an opportunity to
litigate--even if they chose not to exploit that opportunity whether the initial judgment was
erroneous or not.”). Consequently, for res judicata purposes, a “ ‘cause of action is determined
by the factual nucleus, not the theory on which a plaintiff relies.’ ” Sheptock v. Fenty, 707 F.3d
326, 330 (D.C. Cir. 2013), quoting Faulkner v. GEICO, 618 A.2d 181, 183 (D.C. 1992). To
determine whether claims derive from the same nucleus of facts, the D.C. Circuit has adopted a
transactional, pragmatic approach. Smalls, 471 F.3d at 192, citing Stanton v. D.C. Court of
Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997). A court looks at “ ‘whether the facts are related in
time, space, origin, or motivation, whether they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties’ expectations.’ ” Stanton, 127 F.3d at 78, quoting
Restatement (Second) of Judgments § 24(2) (1982).
The instant complaint arose from the same events that formed the basis of plaintiff’s
January 4, 2016 complaint adjudicated in Superior Court, and it names the same defendants.
Here, plaintiff reiterates that in September 2014, he was “acquitted” of assault with a dangerous
weapon “as a procedural dismissal,” and that the Superior Court “failed to submit assault w/
dangerous to jury for a verdict,” thereby “invading the Sixth Amendment right to a jury trial[.]”
Am. Compl. ¶¶ 1, 2. Plaintiff then contends that Virgilio violated professional standards “when
he did not disclose [on direct appeal] that [Judge] William Jackson invad[ed] [his] sixth
amendment right to a jury when he removed the assault w/dangerous weapon from jury without a
verdict harming my rights under Declaration of Independence and Fifth Amendment due process
clause . . . of the constitution.” Id. ¶ 3. Plaintiff demands $1.5 million in monetary relief for
alleged “legal malpractice and fraud,” id. ¶ 4, and he adds “injunctive relief” in his opposition
[Dkt. # 37 at 4].
The D.C. Superior Court exercised proper jurisdiction over plaintiff’s claims of
malpractice and fraud arising from defendant Virgilio’s performance as appellate counsel, and it
resolved those claims on the merits. Therefore, plaintiff cannot litigate his claims again.
Because the D.C. Superior Court has already adjudicated the merits of the underlying
claims against the named defendants, the court concludes that this action is barred by res
judicata. Consequently, plaintiff’s pending motions for partial judgment and his “incidental
motion” will be denied as moot. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: May 5, 2017
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