HALL v. NIELSEN

Filing 36

MEMORANDUM OPINION re 35 Order. Signed by Judge James E. Boasberg on 11/8/2018. (lcjeb2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

STEVEN H. HALL,
Plaintiff,
v.

Civil Action No. 18-461 (JEB)

KIRSTJEN M. NIELSEN, et al.,
Defendants.

MEMORANDUM OPINION
The Department of Homeland Security terminated Plaintiff Steven Hall’s employment
following a variety of misconduct allegations, prompting him to retain the legal services of
Defendant Rosemary Dettling. Unhappy with the result of the subsequent proceedings, Plaintiff
has filed a barrage of suits over the last few years, mostly in a pro se capacity, against Dettling
and DHS. This is one such case. Dettling alone now moves to dismiss, contending that the
doctrine of claim preclusion bars this action against her because she previously prevailed in a
substantially similar suit in D.C. Superior Court. The Court agrees and will grant her Motion.
I.

Background
This is not the Court’s first foray into the facts underlying Hall’s termination and

grievance with Dettling. See Hall v. Dep’t of Homeland Sec., 219 F. Supp. 3d 112 (D.D.C.
2016), aff’d sub nom. Hall v. Dettling, No. 17-7008, 2017 WL 2348158 (D.C. Cir. May 17,
2017). Because only a summary rehearsal of this saga is necessary to tee up the legal issue in
this case, the Court directs readers curious about the full production to its past Opinion.
Beginning in 2010, DHS employed Hall at the GS-12 grade level. See ECF No. 12 (Am.
Compl.) at 2. The Agency reported several disciplinary issues with Plaintiff and decided, in

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early 2013, to place him on administrative leave. Id., Exh. N (Facts) at 2–3; ECF No. 28 (Pl.
Opp.) at 7. This action was followed by an indefinite suspension, which culminated in the
termination of Hall’s employment. See Am. Compl. Facts at 3. Plaintiff also reports that,
preceding his suspension, he had requested relocation to a new facility because his work site —
the St. Elizabeth’s building in Southeast D.C. — contained dust that exacerbated his respiratory
ailments. Id. at 1. Believing his suspension and termination to have been the result of retaliation
and discrimination, Hall filed several complaints with the Equal Employment Opportunity
Commission and the Merit Systems Protection Board. Id. at 5. He hired Dettling to represent
him in these matters. Id. She in turn sought the assistance of other attorneys contracted with her
firm, the Federal Employees Legal Services Center (FELSC). Id. at 6.
Aided by counsel, Hall eventually signed a settlement agreement with the Agency.
Suffice it to say, however, that the path to this resolution was far from smooth. The record
reveals that Hall repeatedly wavered before ultimately agreeing to the settlement, which did not
reinstate his employment but did provide for a financial award and attorney fees. Id. at 6–7. In
the midst of this process, Hall ended his professional relationship with Dettling and her firm. Id.
at 7. Plaintiff makes no bones about his current dissatisfaction with the deal he entered into.
See, e.g., Pl. Opp. at 13–15.
Hall’s discontent with his termination, legal representation, and eventual settlement
spurred a flurry of lawsuits. By this Court’s count, he has filed eight cases in this jurisdiction.
See Nos. 16-846, 16-1471, 16-1619, 17-1469, 18-444, 18-461, 18-1283, 18-1548.
Plaintiff also brought his grievance across the street. On December 30, 2016, he filed suit
pro se in D.C. Superior Court against Dettling and FELSC, centrally alleging legal malpractice in
their representation in connection with his employment dispute. See Sup. Ct. Dkt. 2016-CA-

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9316-B. What happened there plays a central role here. On February 1, 2017, Dettling moved to
dismiss that matter, contending that Hall’s complaint failed to state a legally viable claim against
her. A little over two weeks later, an attorney entered an appearance on behalf of Hall and filed a
motion for default judgment, which the court denied. Neither Hall nor his attorney filed any
opposition to Dettling’s motion to dismiss. On March 20, 2017, Superior Court Judge Jennifer
Di Toro granted her motion and dismissed the case. See Sup. Ct. 03/20/2017 Dkt. Entry (Sup.
Ct. Op.) (attached to this Opinion as Appendix A). Although the Superior Court noted the lack of
any opposition, it nevertheless addressed the motion on its merits, rather than treating it as
conceded. Id. at 1, 5. Two days after the Superior Court ruled, Hall filed an opposition to
Dettling’s motion. He later filed a motion to reconsider. Judge Di Toro considered his motion
but held fast to her prior ruling. See Sup. Ct. 09/19/2017 Dkt. Entry. Hall did not appeal.
Plaintiff now returns to this Court. The players and the protests look familiar. On
February 27, 2018, Hall filed his Complaint against Dettling and DHS, signed by the same
attorney who had represented him in Superior Court. See ECF No. 1. In May of this year, that
attorney withdrew and Hall continued pro se. See ECF No. 5. After several additional filings,
Hall submitted the operative Complaint on July 24, 2018. In this Amended Complaint, he again
takes aim at Dettling’s representation. Although his precise allegations are no beacon of clarity,
the Court has done its best to discern the causes of action that Hall seeks to assert against
Dettling. A generous reading yields claims for legal malpractice, fraud or misrepresentation,
breach of contract, and intentional infliction of emotional distress.
Dettling now moves to dismiss under Rule 12(b)(6), arguing that the Superior Court
decision bars Plaintiff’s current suit from proceeding against her.

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II.

Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails “to state a claim upon which relief can be granted.” In evaluating Defendant’s
Motion to Dismiss, the Court “must treat the complaint’s factual allegations as true . . . and must
grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow
v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States,
617 F.2d 605, 608 (D.C. Cir. 1979)); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d
1249, 1253 (D.C. Cir. 2005). The Court need not accept as true, however, “a legal conclusion
couched as a factual allegation,” nor an inference unsupported by the facts set forth in the
Complaint. See Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986)). Although “detailed factual allegations” are not necessary to
withstand a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citation omitted). For a plaintiff to survive a 12(b)(6) motion, the facts
alleged in the complaint “must be enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
While claim preclusion may be brought as “an affirmative defense that is generally
pleaded in a defendant’s answer, [it] is also properly brought in a pre-answer Rule 12(b)(6)
motion when all relevant facts are shown by the court’s own records, of which the court takes
notice.” Hemphill v. Kimberly-Clark Corp., 605 F. Supp. 2d 183, 186 (D.D.C. 2009) (internal
quotation marks and citations omitted); see also Stanton v. D.C. Court of Appeals, 127 F.3d 72,
76–77 (D.C. Cir. 1997) (collecting cases allowing parties to assert res judicata on 12(b)(6)
motion). In addition, “[a] court may take judicial notice of public records from other

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proceedings.” Hemphill, 605 F. Supp. 2d at 186 (citing Covad Comms. Co. v. Bell Atl. Corp.,
407 F.3d 1220, 1222 (D.C. Cir. 2005)); see also Does I through III v. District of Columbia, 238 F.
Supp. 2d 212, 216–17 (D.D.C. 2002).
III.

Analysis
The Court first addresses the claim-preclusion argument central to Defendant’s Motion,

before turning to two additional issues: the one cause of action that falls outside that analysis and
Defendant’s request for sanctions.
A. Claim Preclusion
If one thing is clear from Hall’s Amended Complaint, it is this: he does not believe that
he was given a fair shake. He is upset about both the terms of his settlement with DHS and the
process that led to his ultimate agreement. These are issues that Hall has the right to raise in
court. But that entitlement is not without limitation. Once a court hears and decides a case, a
litigant may not bring the same claims in another tribunal, hoping for a different result. This
intuitive principle is given life by the doctrine of claim preclusion, which is a variety of res
judicata. See Taylor v. Sturgell, 553 U.S. 880, 892 (2008). It serves to shield parties from
vexatious litigation and establishes the finality of judgments necessary to engender reliance. See
Does I through III, 238 F. Supp. 2d at 217.
When faced with a defense of claim preclusion, the Court draws the applicable rule from
the jurisdiction that handed down the initial determination. That is because, under the Full Faith
and Credit Act, 28 U.S.C. § 1738, federal courts must grant a state-court judgment “the same
respect that it would receive in the courts of the rendering state.” Matsushita Elec. Indus. Co. v.
Epstein, 516 U.S. 367, 373 (1996). The Court, therefore, looks to the law of the District of
Columbia. See Stanton, 127 F.3d at 77 (holding that this rule applies to D.C. courts). Before

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embarking on this task, one quick preliminary note: As courts have observed, no “material
differences” are readily discernable between “the District of Columbia’s law of res judicata and
the federal common law of res judicata.” Id. at 78 n.4 (quoting U.S. Indus., Inc. v. Blake Constr.
Co., 765 F.2d 195, 204 n.20 (D.C. Cir. 1985)). When helpful, this Court thus may also turn to
federal common law for guidance.
Under D.C. law, the application of claim preclusion rests on a three-part test. The Court
must ask:
(1) whether the claim was adjudicated finally in the first action; (2)
whether the present claim is the same as the claim which was raised
or which might have been raised in the prior proceeding; and (3)
whether the party against whom the plea is asserted was a party or
in privity with a party in the prior case.
Peterson v. Washington Teachers Union, 192 A.3d 572, 575 (D.C. 2018) (quoting Calomiris v.
Calomiris, 3 A.3d 1186, 1190 (D.C. 2010)).
The application of this framework to the facts at hand yields a straightforward answer.
The first and third prongs warrant particularly little discussion. Starting with the first, an action
is adjudicated finally when a court decides it “on the merits.” Carr v. Rose, 701 A.2d 1065, 1070
(D.C. 1997). A “ruling is a judgment on the merits,” in turn, “if it is based on legal rights as
distinguished from mere matters of practice, procedure, jurisdiction, or form.” Polsby v.
Thompson, 201 F. Supp. 2d 45, 48–49 (D.D.C. 2002) (internal quotation marks and citations
omitted). There can be no question here that the Superior Court’s decision qualifies. Judge Di
Toro went through each of Hall’s grievances and found on the merits that he had not established
the elements necessary to state a viable claim. On the third prong, in this case, as in Superior
Court, Hall and Dettling are adverse parties. No more is needed to satisfy that element.

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The second prong — which is often the crux of the claim-preclusion analysis — requires
the most ink, although the resolution is equally clear. The core inquiry here looks to whether the
two cases are built on the same factual foundation. That is because, under D.C. law, claim
preclusion “bars not only claims actually litigated in the first action but ‘all issues arising out of
the same cause of action’ that could have been litigated.” EDCare Mgmt., Inc. v. DeLisi, 50
A.3d 448, 451 (D.C. 2012) (quoting Faulkner v. Gov’t Emps. Ins. Co., 618 A.2d 181, 183 (D.C.
1992)); see also NRDC v. EPA, 513 F.3d 257, 261 (D.C. Cir. 2008) (stating that claim preclusion
prevents “litigation of matters that should have been raised in an earlier suit”). The test for
whether a claim constitutes the same “cause of action” — thus removing it from the scope of
viable subsequent litigation — asks if “there is a common nucleus of facts.” EDCare Mgmt., 50
A.3d at 451 (citation omitted). Put another way, a “claim or cause of action, for purposes of
claim preclusion, comprises all rights of the plaintiff to remedies against the defendant with
respect to all or any part of the transaction, or series of connected transactions, out of which the
action arose.” Smith v. Greenway Apartments LP, 150 A.3d 1265, 1273 (D.C. 2016) (citation
and internal quotation marks omitted). To determine whether this second prong is met, the Court
thus looks primarily to the commonality of the factual underpinnings of the two actions, rather
than the precise identity of the assertions of legal liability. See Alford v. Providence Hosp., 60 F.
Supp. 3d 118, 125 (D.D.C. 2014) (“[C]laim preclusion bars subsequent complaints arising from
the same set of facts, even if the complaints bring claims under different statutes, or different
legal theories.”).
In this case, the gravamen of Hall’s grievances stems from his attorneys’ conduct during
the negotiation of his settlement with DHS. See Compl. at 4–7; Compl., Exh. O (Counts) at 1–3.
This statement is equally true of his Superior Court action. There, like here, Plaintiff lodged

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allegations of breach of contract, malpractice, misrepresentation, and other misconduct against
his attorneys for their role in developing the agreement that he ultimately signed. See Sup. Ct.
Op. at 1–3, 5–9. Although the precise concerns raised here may differ in some respects, what
matters for the claim-preclusion analysis is that both complaints clearly arise out of the same
“transaction or occurrence” — namely, Dettling’s representation of Hall related to his
termination and subsequent settlement. See Greenway Apartments LP, 150 A.3d at 1273
(internal quotation marks and citation omitted). The Court has perused Hall’s Amended
Complaint and, with one exception (more on this in the next section), has found no potentially
viable allegation that falls outside of this realm. See Ashbourne v. Hansberry, 894 F.3d 298, 302
(D.C. Cir. 2018) (finding preclusion for suits arising from termination of federal employment).
In fact, the Superior Court opinion separately addressed claims for legal malpractice, breach of
contract, and fraud. The few sparse accusations that Plaintiff sprinkles in his Amended
Complaint that hint at more recent conduct are untethered from the legal claims he conceivably
articulates. Because Hall’s Amended Complaint thus shares a common “nucleus of facts” with
one already decided on the merits, his suit cannot proceed. See EDCare Mgmt., 50 A.3d at 451
(citation omitted).
Faced with this application of law, Plaintiff offers one primary responsive objection. He
contends that the Superior Court action should not be given preclusive power because he did not
submit an opposition to Dettling’s motion to dismiss in that court. See Pl. Opp. at 10. For this
omission, Hall faults Dettling and Judge Di Toro’s clerks, whom he says failed to notify him of
the motion. Id. What Hall seems to be getting at with this allegation is an argument that he did
not have a fair opportunity to litigate in the prior case. See, e.g., Hurd v. District of Columbia,
864 F.3d 671, 679 (D.C. Cir. 2017) (finding claim not precluded when plaintiff could not have

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raised relevant damages claim in earlier proceeding); Nat’l Harbor GP, LLC v. Gov’t of D.C.,
121 F. Supp. 3d 11, 20 (D.D.C. 2015) (“Claim preclusion requires that the litigants had a fair
opportunity to litigate all the issues.”). This contention proves incapable of saving his cause.
For one, it is not clear that being denied an opportunity to oppose a motion — if that is
indeed a fair characterization of Hall’s factual allegations — can deprive a resulting decision of
preclusive power, in the way that an inability to raise a claim can. Cf. Hurd, 864 F.3d at 679.
Unlike an action in which a plaintiff is barred in an earlier proceeding from seeking certain
remedies, Hall squarely raised the same categories of issues in Superior Court that he now seeks
to litigate here, and which the Superior Court addressed on the merits.
The Court need not, however, opine on the significance of this differentiating
characteristic. Plaintiff’s more-pressing problem is that the Superior Court docket (of which the
Court takes judicial notice) clearly shows that he was not denied a fair opportunity to oppose
Dettling’s motion. Just over two weeks after Dettling filed, Hall’s attorney entered an
appearance. See Sup. Ct. 02/19/2017 Dkt. Entry (Notice). He promptly filed a motion of his
own, seeking default judgment. See Sup. Ct. 02/19/2017 Dkt. Entry (Motion). It is not a stretch
to conclude that any good-faith motion for default judgment — the basis of which is the
counterparty’s lack of response to a complaint — would require the attorney to review the
court’s docket, which would have quickly turned up Dettling’s motion. A full month nonetheless
passed without any opposition from Hall or his attorney. In that time, the court denied Hall’s
motion for default judgment, see Sup. Ct. 03/10/2017 Dkt. Entry, but still did not rule on the
motion to dismiss. Finally, on March 20, 2017 — approximately seven weeks after Dettling filed
her motion, four weeks after Hall’s attorney entered an appearance, and ten days after the
Superior Court denied the motion for default judgment — the Superior Court dismissed the case

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on the merits. After the decision, Hall (or, more precisely, his attorney) did file a motion for
reconsideration, which the Superior Court considered and denied. See Sup. Ct. 09/19/2017 Dkt.
Entry. If Plaintiff still believed at this point that his case had been improperly dismissed, his
recourse was with the D.C. Court of Appeals. Hall, however, did not appeal. Given this course
of events, the conclusion that Plaintiff had a fair opportunity to litigate the relevant issues in
Superior Court seems inescapable.
B. Intentional Infliction of Emotional Distress
Although this conclusion completes the claim-preclusion discussion, there remains one
wrinkle, as the Court hinted earlier. Hall asserts that Dettling’s attempt to collect $30,269 in
legal fees from him “exacerbated Plaintiff’s medical conditions and mental health issues.”
Compl. at 6. A careful reading of the record reveals that a fee arbitrator awarded Dettling this
sum in November of 2017, after the Superior Court action concluded. This allegation thus falls
outside the “nucleus of facts” of Hall’s Superior Court action and must be addressed separately.
Plaintiff does not expressly set forth the cause of action he seeks to assert. The Court
nevertheless will read his Amended Complaint charitably, given Hall’s pro se status. The best fit
for his grievance seems to be intentional infliction of emotional distress. To state a viable claim
under this tort, a plaintiff must allege conduct that is “so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized society.” Nagy v. Corrections Corp. of Am., 79 F. Supp. 3d 114,
120 (D.D.C. 2015) (quoting Joyner v. Sibley Mem’l Hosp., 826 A.2d 362, 373 (D.C. 2003)).
Hall’s assertion that Dettling attempted to collect a debt owed to her, even if she “threaten[ed]
him with a lien on his home and garnishment order for future earnings,” does not even enter the

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ballpark. See Compl. at 6. No part of Hall’s Amended Complaint can therefore survive
Dettling’s Motion.
C. Sanctions
There is one final issue that the Court must address. In her Reply, Dettling requested that
the Court sanction Hall. See ECF No. 30 (Def. Reply). Although pro se parties are generally
held to a more lenient standard than their barred counterparts, sanctions can still be imposed.
See Stankevich v. Kaplan, 156 F. Supp. 3d 86, 97–98 (D.D.C. 2016). Federal Rule of Civil
Procedure 11(b) requires that filings made by both “an attorney” and an “unrepresented party” be
non-frivolous and made for a proper purpose. Given Hall’s repeated filings — which at times
contain disparaging language — the Court is sympathetic to Dettling’s request and her continual
efforts to defend herself from suit. Defendant has also pointed the Court to an email from Hall to
Dettling that, to say the least, is not becoming of someone engaged in legal practice, whether or
not pro se. See Def. Reply, Exh. C. That said, the Court exercises its discretion not to impose
any sanctions at this time. It cautions Plaintiff, however, that the Court may consider a pre-filing
injunction should he continue to sue Dettling for issues arising out of her legal representation.
IV.

Conclusion
For these reasons, the Court will grant Defendant’s Motion to Dismiss and deny

Defendant’s Motion for Sanctions. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: November 8, 2018

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APPENDIX A

Rosemary Dettling’s

filed. For the reasons discussed herein, Defendant’s motion shall be granted.

(“DHS”) from August 2, 2010 until November 18, 2013. Compl. ¶ 2. Plaintiff was employe

“regarding
work environment.”

“Administrative Specialist, GS
(“CRSO”), Department of Homeland Security, and Federal Service.”
1

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ppeal of his termination to the Merit Systems Protection Board (“MSPB”). Compl. ¶ 3,

’s fees in the amount of $30,000 and an additional $55,000 if he

On December 1, 2015, Ms. Byers emailed Defendant to inform her that her “former

” MTD at 15, ¶ 21. In his rescissio

sion on December 1, 2015, dismissing Plaintiff’s appeal as

eview with the MSPB, alleging that “DHS attorneys and my former private

2

of Evidence.” Compl. Ex. G. On January 16, 2016

The MSPB denied Plaintiff’s
Petition for Review on June 23, 2017, finding that “by the terms of the

rights concerning the issues raised in this appeal, and the waiver is enforceable.”

Hall v. Dep’t

“
”

with the District of Columbia Bar’s Office of Disciplinary Counsel, alleging
that her “professional misconduct … resulted in my District Court case being dismissed.”

the District of Columbia issued an “Order Granting Sanctions” which included,
finding that Plaintiff “eventually decided
Dettling’s representation.” MTD at 19 ¶ 30.

that Plaintiff’s Complaint should be dismissed
d by Super. Ct. Civ. R. 12(b)(6). “To survive a

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liable for the misconduct alleged.”

allegations in the complaint, however, “must be enough to raise a right to relief above the
speculative level.”
(1974)). “Threa
statements, do not suffice.”

, 931 A.2d 1018, 1025 (D.C. 2007) (“Documents that a

to in plaintiff’s complaint and are central to her claim.”);

upon “‘documents at
about which the Court may take judicial notice.’”). For example, documents attached to the
motion to dismiss such as opinions, orders, briefs, transcripts, and arbitrator’s findi

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Mart Dev’t Co

Ct. Civ. R. 12(b) (if the defendant moves for failure to dismiss under 12(b)(6), and “matters

one for summary judgment and disposed of as provided in Rule 56.”) When the court converts a

Defendant has attached MSPB Judge Hudson’s Initial Decision, Judge Boasberg’s
aintiff’s

Complaint and are relevant to this Court’s resolution of Plaintiff’s claims and Defendant’s

Defendant’s Motion to Dismiss on the merits.

attorney’s employment, 2) neglect of a reasonable duty, 3) that suc

alleges that Defendant “engaged in malpractice for forwarding a

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known fraudulent settlement agreement/contract,” failing “to adequately represent Plaintiff by

laced phone message,” and f ling to “repres
ied [reasonable accommodation].” Compl. at ¶¶ 3 –

Plaintiff elected to move forward with the agreement after he terminated Defendant’s

Plaintiff’s signature appears on the settlement agreement; the two MSPB decisions both indicate

Plaintiff. Plaintiff’s claim

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Civ. R. 9(b) (“In all averments of fraud or mistake, the circumst
mistake shall be stated with particularity.”);
, 878 A.2d 1226, 1233 (D.C. 2005) (“Fraud is never
eaded.”).

Fort Lincoln Civic Ass’n v.

omitted). A cause of action for fraud “must allege such facts as will reveal the
the requisite elements of fraud.”
60 (D.C. 1977)). “Facts which will enable

conclusions on the part of the pleader as to the existence of fraud are insufficient.”
Here, Plaintiff alleges that Defendant forwarded a “known fraudulent settlement
agreement” to DHS. Compl. ¶ 1. However, the Co
Defendant’s
by sending it to DHS. Plaintiff’s fraud allegation includes no factual allegations that

detrimental reliance. Moreover, Plaintiff’s decision to settle the case via the signed agre

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representation and Plaintiff’s own decision to settle the case after Defendant had ceased to

the event of termination of the representation, to pay Defendant “full attorney’s fees at [the]
Laffey matrix rate.”

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Defendant’s

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