Washington v. Coastal International Security, Inc.

Filing 23

MEMORANDUM OPINION (c/m to Plaintiff 4/24/18 sat). Signed by Judge Deborah K. Chasanow on 4/24/2018. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
GEORGE WASHINGTON
:
v.

:

Civil Action No. DKC 17-3311

:
COASTAL INTERNATIONAL SECURITY,
INC.
:
MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination case is the motion to dismiss filed by
Defendant

Coastal

(ECF No. 13).

International

Security,

Inc.

The issues have been briefed, and the court now

rules, no hearing being deemed necessary.
For

the

(“Defendant”).

following

reasons,

the

motion

Local Rule 105.6.
to

dismiss

will

be

granted.
I.

Background
Plaintiff George Washington is a war veteran and worked as

a security officer for Defendant from July 2010 until he was
terminated in July 2013.1

In August 2013, Plaintiff filed a

complaint alleging that Defendant discriminated in violation of
the Uniformed Services Employment and Reemployment Rights Act
(“USERRA”)

when

it

terminated

him.

After

the

close

of

discovery, Defendant moved for summary judgment arguing that it
1

Plaintiff was a member of Naval Reserve during the
pendency of the prior suit.
Affidavit of George Wolo
Washington, Washington v. Coastal Int’l Sec., Inc., No. DKC-140331 (D.Md. Dec. 12, 2014), ECF No. 35, at 18.

had

terminated

violations

of

Plaintiff’s
the

employment

employment

code.

granted, and judgment was entered.

because

of

Defendant’s

numerous

motion

was

Washington v. Coastal Int’l

Sec., Inc., No. DKC-14-0331, 2015 WL 4396616 (D.Md. July 16,
2015), aff’d, 633 F.App’x 186 (4th Cir. 2016).
On November 18, 2017, Plaintiff filed this action against
Defendant.
from

It appears that at some point after his termination

Defendant,

security firm.

Plaintiff

obtained

employment

rehire

took

Plaintiff.

decision,

different

Defendant “assume[d] contract

operation” at that site on August 1, 2017.
Defendant

a

He was working for that firm at a government

site in Crystal City, Virginia.

When

at

Defendant

over
In

the

the

stated

Crystal

letter
that

(ECF No. 1-1, at 1).

City

site,

telling
“A

it

Plaintiff

review

of

our

did

not

of

its

records

indicates that you were a previous employee at Coastal and it
was noted that you are ineligible for re-hire with our company.”
(ECF No. 1-1 at p. 1). Defendant moved to dismiss.
13).

(ECF No.

Plaintiff responded (ECF No. 20), and Defendant replied

(ECF No. 21).
II.

Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is

to test the sufficiency of the complaint.

Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A complaint

need only satisfy the standard of Rule 8(a)(2), which requires a
“short and plain statement of the claim showing that the pleader
2

is

entitled

to

relief.”

“Rule

8(a)(2)

still

requires

a

‘showing,’ rather than a blanket assertion, of entitlement to
relief.”
(2007).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3
That showing must consist of more than “a formulaic

recitation

of

the

elements

of

a

cause

of

action”

or

assertion[s] devoid of further factual enhancement.”
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
stage,

all

well-pleaded

considered

as

true,

allegations

Albright

v.

in

a

Oliver,

complaint
510

U.S.

“naked

Ashcroft
At this
must
266,

be
268

(1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff,

see

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604

F.2d

844,

847

(4th

Cir.

1979);

see

also

Francis

v.

Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
Pro se pleadings are liberally construed and held to a less
stringent standard than pleadings drafted by lawyers.

Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520
3

(1972).

Liberal construction means that the court will read the

pleadings

to

state

a

valid

claim

to

the

extent

that

it

is

possible to do so from the facts available; it does not mean
that the court should rewrite the complaint to include claims
never presented.
Cir. 1999).

Barnett v. Hargett, 174 F.3d 1128, 1132 (10th

That is, even when pro se litigants are involved,

the court cannot ignore a clear failure to allege facts that
support a viable claim.

Weller v. Dep’t of Soc. Servs., 901

F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No. RDB–12–969,
2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012) (“[E]ven a pro se
complaint must be dismissed if it does not allege a plausible
claim

for

relief.”

(citation

and

internal

quotation

marks

omitted)).
In addition, dismissal may be proper “when the face of the
complaint

clearly

reveals

affirmative defense.”
178, 181 (4th

the

existence

of

a

meritorious

Brooks v. City of Winston–Salem, 85 F.3d

Cir. 1996).

“[W]hen entertaining a motion to

dismiss on the ground of res judicata, a court may take judicial
notice of facts from a prior judicial proceeding when the res
judicata defense raises no disputed issue of fact.”
Daw, 201 F.3d 521, 524 (4th Cir. 2000).

Andrews v.

Reference to these facts

does not convert a motion to dismiss into a motion for summary
judgment.

Id.

4

III. Analysis
Defendant
judicata.

argues

Plaintiff’s

complaint

is

barred

by

res

Federal common law governs the preclusive effect of

the prior decision.

United States ex rel. May v. Purdue Pharma

L.P., 737 F.3d 908, 912 (4th Cir. 2013).

Under federal common

law, “[t]he application of res judicata turns on the existence
of three factors: (1) a final judgment on the merits in a prior
suit; (2) an identity of the cause of action in both the earlier
and the later suit; and (3) an identity of parties or their
privies in the two suits.”

Clodfelter v. Republic of Sudan, 720

F.3d 199, 210 (4th Cir. 2013) (internal quotation marks omitted).
Claims concern the same action when “the suits and the claims
asserted therein ‘arise out of the same transaction or series of
transaction or the same core of operative facts.’”

Pueschel v.

United States, 369 F.3d 345, 355 (4th Cir. 2004) (quoting In re
Varat Enters., Inc., 81 F.3d 1310, 1316 (4th Cir. 1996)).
Plaintiff seems to argue that his termination in May 2013
and Defendant’s refusal to reemploy him violate USERRA.
No. 1, at 5).

(ECF

Plaintiff and Defendant were the parties to the

prior suit, and the prior suit had a final judgment on the
merits.

Washington, 2015 WL 4396616.

The prior suit determined

that Plaintiff’s dismissal did not violate USERRA.
To
initial

the

extent

termination,

Plaintiff
it

is

brings
clearly

a

claim

barred

by

related
res

to

his

judicata.

Plaintiff seems also to allege that the failure to hire in 2017
5

was a continuation of the earlier violation, but a continuing
violation

“is

occasioned

by

continual

unlawful

acts,

not

continual ill effects from [the alleged] original violation.”
Nat’l Adver. Co v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir.
1991).

Here,

instead

repeats

Plaintiff
that

his

points

to

previous

no

new

unlawful

termination

was

acts

and

unlawful.

Accordingly, the complaint, both as to the original termination
and later refusal to rehire is barred by res judicata and will
be dismissed.
Out of an abundance of caution, however, Plaintiff will be
given a brief period to amend the complaint.

In his complaint,

Plaintiff checked the box for failure to hire, but he has pled
no facts alleging a separate cause of action for failure to hire
in 2017 under USERRA.

In light of the liberal policy favoring

amendment and ultimate determination on the merits, Plaintiff
will be allowed to file an amended complaint.
IV.

Conclusion
For the foregoing reasons, the motion to dismiss filed by

Defendant Coastal International Security, Inc. will be granted.
A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

6