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
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