KALOS et al v. USA

Filing 9

UNREPORTED OPINION and ORDER granting 7 Motion to Dismiss - Rule 12(b)(1) and (6) The Clerk is directed to enter judgment. Signed by Senior Judge Edward J. Damich. (dls) Service on parties made. (Plaintiff served via certified mail; Article No. 7016 3010 0000 4308 4034)

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No. l7-l82lC
(Filed: February 15, 201 8)

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FILED
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PETER KALOS, VERON KALOS,

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5

2018

U.S. COURT OF
FEDERAL CLAIMS

Plaintiffs,
v.

THE UNITED STATES,
Defendant.
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OPINION and ORDER

DAMICH, Judge:
Peter and Veron Kalos ("Plaintiffs"), acting pro se, filed their Complaint on
November 17,2017, seeking a determination of the amount owed to the United States
following the termination of a contract between their company, Brickwood Contractors,
Inc., and the Federal Bureau ofPrisons. On January 16,2018, the United States
("Defendant") filed a Motion to Dismiss pursuant to Rules 12(b)(l) and l2(b)(6) of the
Rules of the United States Court of Federal Claims ("RCFC"), arguing that this Court
lacks the subject matter jurisdiction to hear Plaintiffs' claim and that Plaintiffs fail to state
a claim upon which relief can be granted under the doctrine of res judicata. In Ihe
altemative, Defendant argues that the Court does not have jurisdiction under 28 U.S.C. $
1494. On February 8, 2018, Plaintiffs filcd their response. For the reasons set forth in
this opinion, the Court hereby GRANTS Defendant's Motion to Dismiss under the
doctrine of res judicata.

I.

Facts

Plaintiffs, Peter and Veron Kalos, own Brickwood Contractors, Inc.
("Brickwood"). Kalos v. United States,87 Fed. Cl.230,232(2009) ("Kalo.r 1'). OnJuly
25,2003, Brickwood entered into Contracl No. J20802c-01 I ("Brickwood contract")
with the Federal Bureau ofPrisons C'BOP") to repair and repaint a water tank in Loretto,
Pennsylvania. Id.; Compl. 'lf l l, Exs. 5, 8. Plaintiffs acquired a performance bond from
Greenwich Insurance Company ("Greenwich"), which Plaintiffs secured with real
property. Id.; Compl. fl 2.3. On September 15,2005, BOP terminated the Brickwood
contract due to default and sought to collect from Greenwich on the bond. Compl. fl 4. I ,
Exs. 10, 17. On February l,2008, BOP and Greenwich reached a $769,998 settlement
I

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agreement, to which Plaintiffs were not parties and which satisfied Greenwich's
obligations. Id. at233; Kalos v. United S/ates, No. 15-880C,2016 WL 1073275,at*l
(Fed. Cl. Mar.17,2016) ("Kalos
The settlement agreement "did not prevent
Greenwich lrom recovering damages from third parties, including Peter and Vemon
Kalos, who secured the performance bond with real property." Kalos IIat*1.
Greenwich attempted to recover damages from Plaintiffs in cash but was unable to do so.
Greenwich then foreclosed on Plaintiffs' real property. 1d

II').

Id

On September 4, 2008, Plaintiffs filed suit in this Courl concerning the
Brickwood contract. Kalos I at 234. Plaintiffs alleged that the settlement agreement
between BOP and Greenwich led to an illegal exaction and that the resulting foreclosure
of Plaintiffs' real property constituted a taking in violation of the Fifth Amendment. 1d
The Court dismissed Plaintiffs' claims, and the Federal Circuit affirmed. Kalos I, aff'd,
368 F. App'x 127 (Fed. Cir.2010).
On August 14,2015, Plaintiffs again filed suit in this Court conceming the
Brickwood contract. Kalos II at *2. This time, Plaintiffs alleged that the Brickwood
contract was an unsettled account pursuant to 28 U.S.C. I1494. Id. at *3-4. This Court
dismissed Plaintiffs' claim as baned by the statute of limitations. Id at *4. Again, the
Federal Circuit affirmed, holding that 28 U.S.C. $ 1494 "does not toll the six-year statute
of limitations." Kalos v. United States, 670 F. App'x 714 (Fed. Cir. 2016).

II.

Standard of Review

A pro se plaintiff s complaint, "'however inartfully pleaded,' must be held to'less
stringent standards than formal pleadings drafted by lawyers."' Estelle v. Gamble,429
U.S. 97, 106 (1976) (quoting Haines v. Kerner,404 U.S. 519, 520-21 (1972)). Such
leniency, however, does not allow the court to excuse failure to comply with a court's
jurisdictional requirements. See Henke v. United States,60 F.3d 795, 799 (Fed. Cir.
1995) ("The fact that [plaintiffl acted pro se in the drafting of his complaint may explain
its ambiguities, but it does not excuse its failures, ifsuch there be.").

III.

Discussion

Defendant has filed a motion to dismiss this case under the doctrine ofres
judicata or, in the altemative, lack ofjurisdiction under 28 U.S.C. g 1494.r ln rheir
complaint, Plaintiffs ask this Court "to ascertain the amount, ifany, due the United States
on an unsettled federal contractor's account" under 28 U.S.C. $ '1494. Compl. at2.

a.

Res

Judicata Bars this Claim.

judicata dictates that "[a] final judgment on the merits of an action precludes
the parties or their privies from relitigating issues that were or could have been raised in
Res

Because this case is precluded under the doctrine of res judicata, the Court need not to
address the 28 U.S.C. $ 1494 argument, which is moot.
1

that action." Federated Dep't Stores, Inc, v. Moitie,452 U.S. 394,398 (1981). Res
judicata applies when "(1) the parties are identical or in privity; (2) the first suit
proceeded to a final judgment on the merits; and (3) the second claim is based on the
same set oftransactional facts as the ftsL" Ammex, Inc. v. United States,334 F.3d 1052,
1055 (Fed. Cir. 2003) (citing Parklane Hosiery Co. v. Shore,439 U.S. 322, 326 n.5
(1979)). The presumption is that "all claims arising out ofthe same contract constitute
the same claim for purposes ol res judicata." Phillips/May Corp. v. United States,524
F.3d1264,1273 (Fed. Cir.2008). Therefore, applying the thee-part test, the Court musr
compare K4los I and Kalos II to the current case.2
First, the Court must determine whether the parties are identical. Kalos I, Kalos
and the present case all involve the same parties-- Peter and Veron Kalos as Plaintiffs
and the United States as Defendant. Hence, the first prong is satisfied.

{

Under prong two, the Court must review whether Kalos I and Kalos ll proceeded
to final judgments. In Kalos I, the Court dismissed the case for failure to state a claim
and lack ofjurisdiction, which was affirmed by the Federal Circ:uil. Kalos I, aff'd,368F.
App'x 127 (Fed. Cir. 2010). Similarly, Kalos II was decided on the merits when the case
was dismissed on the grounds of statute of limitations. Kalos II,aff'd,670 F. App'x714
(Fed. Cir. 2016). Therefor e, both Kalos I and Kalos II satisfu prong two of the res
iudicata lest.

2

Of note, two prior cases in Maryland and Virginia district courts were dismissed under
the doctrine ofresjudicata. See Kalos v. Centennial Sur. Assocs.,1nc., No. CCB-I21532,2012 WL 6210117,a|*l (D. Md. Dec. 12,2012); Kalos v. lltisenbaker Holdings,
LLC, 2011WL761474, at *3 n.3 (E.D. Va. Feb. 23, 2011).
Moreover, Plaintiffs have filed ten prior complaints in this Courr under the names of
Peter and Veron Kalos and their company, Brickwood Contractors, Lnc. See Kalos v.
United States, 15-cv-880; Kalos v. United States, 08-cv-631; Brickwood Contractors, Inc.
v. United States,97 -cv-844; Brickwood Contractors, Inc. v. United States,99-cv- 180:
Bricbwood Contraclors, Inc. v. United States,99-cv-367; Briclo,vood Contractors, Inc. v.
United States,99-cv-3 88; Brickwood Contactors, Inc. v. United States,99-cv-482;
Brickwood Contrdclors, Inc. v. United States,02-cv-660; Brich,sood Contractors, Inc. v.
United Stales,05-cv-271; Bricbwood Contractors, Inc. v. United States,06-cv-695.

Additionally, Brickwood Contractors, Inc. has filed four prior complaints in other federal
jurisdictions. See Brickwood Contractors, Inc. v. Datanet Engineering,98-cv- 1265 (D.
Md,.); Brickwood Contractors, Inc. v. Datanet Engineering,9S-cv-296 (E.D. Va.);
Brickwood Contractors, Inc. v. Pressure Concrete Construction,9T -cv-1646 (D.C.D.C.);
Bricbwood Contractors, Inc.v. City of Durham,96-cv-768 (M.D.N.C.). Plaintiffs have
also filed seven prior complaints in other jurisdictions. See, e.g., Kalos v. IV'isenbaker
Holding.s,l0-cv-1335 (E.D. Va.); Kalos v. Federal Bureau of Prisons, 10-cv-274 (W.D.
Pa.); Kalos v. Greenwich Insurance Company, l0-cv-841 (8.D. Va.).

Ald finally,

under prong three, the Court must determine whether the
transactional facts are the same in all cases. Again, the presumption is that "all claims
arising out of the same contract constitute the same claim for purpos es of res judicala."
Phillips/May Corp., 524 F .3d at 1273. Kalos I, Kalos II, and the cunent case all revolve
around Contract No. J20802c-011 and the settlement agreement between BOP and
Greenwich, as evidenced by the complaints filed in those cases. Compare Compl. fl 5.5
("The Federal Bureau of Prisons did not settle the reservations it made against the
Contract No. J20802c-011 contractor."), with Kalos I at233, and Kalos 1{ Compl. flfl l71 8 ("Plaintiffs asked the [Federal] BOP to settle Contract No. J20802c-01 I . . . Contract
No. J20802c-011 remains unsettled."). Thus. there are no different transactional facts
whatsoever.

IV.

Conclusion

Because the thee elements of the res judicat4 test are satisfied, the case must be
dismissed.3 The Court GRANTS Defendant's Motion to Dismiss. The Clerk is directed
to enter j udgment accordingly.

IT IS SO ORDERED.

Senior Judge

Regardless, Plaintiffs' claim falls outside this Court's six-year statute of limitations. See
28 U.S.C. $ 2501. In this case, the statute of limitations accrued when BOP terminated
the Brickwood contracl on Sept 15, 2005. Kalos v. United States,670 F. App'x 714,715
(Fed. Cir. 2016). Even using the date ofthe settlement agreement on February 1,2008,
Plaintiffs' claim filed in 2017 is still time-barred. See id.
3