ZONG v. MERRILL LYNCH/BANK OF AMERICA

Filing 29

MEMORANDUM AND/OR OPINION. SIGNED BY CHIEF JUDGE PETRESE B. TUCKER ON 7/24/17. 7/24/17 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF, EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RAYMOND ZONG,
Plaintiff,
v.
MERRILL LYNCH/BANK OF
AMERICA,
Defendant.

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CIVIL ACTION
NO. 14-6010

MEMORANDUM
Tucker, C.J.

July 24, 2017

Before the Court are Plaintiff Raymond Zong’s Complaint (ECF No. 1), Defendant
Merrill Lynch’s Motion to Dismiss Zong’s Complaint (ECF No. 26), Plaintiff, Raymond Zong’s
Response Against Merrill Lynch’s Motion (ECF No. 27), and Plaintiff’s Supplements to Zong’s
Response (ECF No. 28). Upon consideration of the Parties’ submissions, Defendant’s Motion to
Dismiss is GRANTED and Plaintiff Raymond Zong’s Complaint (ECF No. 1) is DISMISSED
WITH PREJUDICE.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The present lawsuit is the second lawsuit that Plaintiff has brought against his former

employer, Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”), for claims relating to
Merrill Lynch’s alleged racial discrimination and retaliation against Plaintiff. The Court
ultimately concludes that the present suit is barred by the doctrine of res judicata because
Plaintiff’s prior suit ended in a final judgment on the merits, the prior suit was brought against
the same defendant, and the prior suit involved the same cause of action that is at issue in the
present suit.

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A.

Prior Suit: Zong v. Merrill Lynch, Pierce, Fenner & Smith Inc., a whollyowned subsidiary of Bank of America, No. 13-3256
1.

Underlying Facts: Alleged Discrimination and Retaliation

Plaintiff is Chinese and his native language is Chinese. Second Am. Compl. ¶ 14, Zong
v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Nov. 13, 2013), ECF No.
9; see also Pl.’s Resp. in Opp. to Mot. to Dismiss ¶ 3, Zong v. Merrill Lynch/Bank of America,
No. 14-6010 (E.D. Pa. Oct. 23, 2014), ECF No. 27 (explaining that Plaintiff’s native language is
Chinese). In 2006, Merrill Lynch hired Plaintiff as a financial advisor. Second Am. Compl. ¶ 12,
Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Nov. 13, 2013),
ECF No. 9. Beginning in 2010, Plaintiff’s white coworkers allegedly began harassing Plaintiff
because of his race. Id. at ¶ 13. Among other things, Plaintiff’s colleagues directed Plaintiff not
to speak Chinese with his clients despite the fact that Plaintiff’s job duties often required him to
speak Chinese with many of his Chinese-speaking clients. Id. at ¶¶ 17, 22; see also Pl.’s Resp. in
Opp. to Mot. to Dismiss ¶ 3, Zong v. Merrill Lynch/Bank of America, No. 14-6010 (E.D. Pa. Oct.
23, 2014), ECF No. 27 (explaining that Plaintiff held the title of International Financial Advisor
and was authorized to speak Chinese with his clients). Indeed, Plaintiff’s manager allegedly
acknowledged that Plaintiff’s coworkers may have been intentionally harassing Plaintiff. Second
Am. Compl. ¶ 24, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa.
Nov. 13, 2013), ECF No. 9. Although Plaintiff reported this and other incidents of alleged
hostility and harassment to Merrill Lynch, Merrill Lynch purportedly did nothing. Id. at ¶ 25.
On February 15, 2012, Plaintiff filed a charge with the Equal Employment Opportunity
Commission alleging that Merrill Lynch engaged in discrimination based on race and national
origin. Id. at ¶ 33. After Plaintiff’s filing, Merrill Lynch transferred Plaintiff to a new office
location away from the coworkers who had been harassing Plaintiff. Id. at 5 ¶ 34. Despite the
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transfer, Merrill Lynch allegedly continued to discriminate against Plaintiff in a variety of ways.
Id. at ¶¶ 35–37. As a result of this alleged discrimination, on April 2, 2012, Plaintiff resigned.
Id. at ¶ 38.
On June 12, 2013, Plaintiff filed a complaint against Merrill Lynch alleging that Merrill
Lynch engaged in, among other things, race discrimination and retaliation in violation of Title
VII of the Civil Rights Act, 42 U.S.C. §§ 2000, et seq. Compl. ¶¶ 18–25, Zong v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. June 12, 2013), ECF No. 1. 1 After some
time, the Parties agreed to explore settlement options, and the case was referred to United States
Magistrate Judge Richard A. Lloret to conduct a settlement conference. Order, Zong v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. June 4, 2014), ECF No. 32.
2.

Settlement Agreement and September 22, 2014 Entry of Final
Judgment

On June 23, 2014, the Parties appeared for a settlement conference before Judge Lloret.
Min. Sheet, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. June 24,
2014), ECF No. 35. During the settlement conference, the Parties reached a mutually-agreeable,
final settlement and placed their agreement on the record. See Mem. Op., Zong v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Sept. 22 2014), ECF No. 57 (summarizing
result of settlement conference). The next day, Plaintiff contacted Judge Lloret by email in an
attempt to renege on the settlement agreement. Id. Plaintiff sought to renege on the agreement
because his attorney purportedly misled Plaintiff during the settlement conference. Id. at 2–3.

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On July 3, 2013, Plaintiff filed an amended complaint to add a cause of action under the
Pennsylvania Human Relations Act. Am. Compl., Zong v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., No. 13-3256 (E.D. Pa. July 3, 2013) ECF No. 2. On November 13, 2013, Plaintiff
filed a second amended complaint to add a cause of action under the Wage Payment and
Collections Act and a cause of action for Breach of Contract. Second Am. Compl., Zong v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Nov. 13, 2013), ECF No. 9.
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After Plaintiff refused to honor the settlement agreement, Merrill Lynch filed a Motion to
Enforce Settlement. Merrill Lynch’s Mot. to Enforce Settlement, Zong v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. June 30, 2014), ECF No. 39. The Parties stipulated
to Judge Lloret’s jurisdiction. Consent, and Reference of a Civil Action to a Magistrate Judge,
Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Sept. 4, 2014), ECF
No. 55. Judge Lloret then ordered that the Parties appear for a hearing on the Motion to Enforce
Settlement. After the hearing, on September 22, 2014, Judge Lloret issued an Order (“September
22 Order”) and Memorandum Opinion whereby he granted the Motion to Enforce Settlement and
dismissed Plaintiff’s case with prejudice in accordance with the Parties’ on-the-record settlement
agreement. Mem. Op., Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D.
Pa. Sept. 22, 2014), ECF No. 57; Order, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
No. 13-3256 (E.D. Pa. Sept. 22, 2014), ECF No. 58. Plaintiff appealed the September 22 Order.
On December 1, 2015, the United States Court of Appeals for the Third Circuit affirmed
the September 22 Order. See generally Zong v. Merrill Lynch Pierce Fenner & Smith, Inc., No.
14-4239 (3d Cir. Dec. 1, 2015). Plaintiff then sought to appeal the Third Circuit’s decision to the
United States Supreme Court by Petition for Writ of Certiorari. On April 24, 2017, the United
States Supreme Court denied Plaintiff’s Petition for Writ of Certiorari. Zong v. Merrill Lynch
Pierce Fenner & Smith, Inc., 137 S. Ct. 1812 (2017).
B.

Present Suit: Zong v. Merill Lynch/Bank of America, No. 14-6010

On October 23, 2014, while Plaintiff’s appeal of the September 22 Order was pending
before the Third Circuit, Plaintiff filed the present Complaint against Merrill Lynch under a new
civil action number, No. 14-6010. See generally Compl., Zong v. Merrill Lynch/Bank of
America, No. 14-6010 (E.D. Pa. Oct. 23, 2014), ECF No. 1. Plaintiff’s Complaint set forth a

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cause of action for violation of Title VII of the Civil Rights Act relating to Merrill Lynch’s
alleged retaliation against Plaintiff and constructive discharge. Id. at 2. In addition to alleging
the same cause of action against the same Defendant, Plaintiff also alleged the same core set of
facts in his new Complaint that he alleged in his prior complaints. See generally id.
On December 12, 2014, the present case was stayed pending the outcome of Plaintiff’s
appeal of the September 22 Order in Plaintiff’s prior suit. Order, Zong v. Merrill Lynch/Bank of
America, No. 14-6010 (E.D. Pa. Dec. 12, 2014), ECF No. 11. Later, after the United States
Supreme Court’s dismissal of Plaintiff’s Petition for Writ of Certiorari in the prior suit,
Defendant filed the instant Motion to Dismiss. Merrill Lynch’s Mot. to Dismiss Zong’s Compl.,
Zong v. Merrill Lynch/Bank of America, No. 14-6010 (E.D. Pa. May 24, 2017), ECF No. 26.
II.

STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6), “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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570
(2007)). A complaint is plausible on its face when its factual allegations allow a court to draw a
reasonable inference that a defendant is liable for the harm alleged. Santiago v. Warminster
Twp., 629 F.3d 121, 128 (3d Cir. 2010). A court must accept as true all factual allegations
contained in a complaint and interpret them in the light most favorable to the plaintiff. Argueta
v. U.S. Immigration & Customs Enf’t, 643 F.3d 60, 74 (3d Cir. 2011).
III.

DISCUSSION
Defendant asserts that the doctrine of res judicata applies to the present facts and,

therefore, Plaintiff’s Complaint must be dismissed. The Court agrees.

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At the outset, the Court notes that in Plaintiff’s response in opposition to the Motion to
Dismiss, Plaintiff highlights various events in the course of his employment with Merrill Lynch
and in the course of his prior suit that have not pled. At the motion to dismiss stage, however,
this Court is constrained to the pleadings before it and is, in any event, limited by the final
judgment reached in Plaintiff’s prior suit as affirmed by the Third Circuit Court of Appeals as
explained in greater detail below.
As to the matter presently before the Court, the doctrine of res judicata, “also known as
claim preclusion, bars a party from initiating a second suit against the same adversary based on
the same ‘cause of action’ as the first suit.” McLaughlin v. Bd. of Trs. of Nat’l Elevator Indus.
Health Benefit Plan, No. 16-4108, 2017 WL 1325687, at *2 (3d Cir. Apr. 11, 2017) (citing In re
Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008)). The doctrine also bars claims that could have
been brought in the first suit. See Morgan v. Covington Tp., 648 F.3d 172, 177 (3d Cir. 2011)
(quoting In re Mullarkey, 536 F.3d at 225) (providing that res judicata “promotes judicial
economy and protects defendants from having to defend multiple identical or nearly identical
lawsuits by ‘bar[ring] not only claims that were brought in a previous action, but also claims that
could have been brought’”). Though a claim of res judicata must generally be raised as “an
affirmative defense,” it may properly be asserted in a motion to dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure when application of the doctrine and, thus, dismissal, is
“apparent on the face of the complaint.” Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d
883, 886 (3d Cir. 1997).
To assert that a legal matter is barred by the doctrine of res judicata successfully, the
defendant “must establish three elements: (1) a final judgment on the merits in a prior suit
involving (2) the same parties or their privies, and (3) a subsequent suit based on the same cause

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of action.” Morgan, 648 F.3d at 177 (citing In re Mullarkey, 536 F.3d at 225). As to the first
element, it is well-recognized that “[j]udicially approved settlement agreements are considered
final judgments on the merits for the purposes of claim preclusion.” Conceicao v. Nat. Water
Main Cleaning Co., 650 F. App’x 134, 135 (3d Cir. 2016) (citing Langton v. Hogan, 71 F.3d
930, 935 (1st Cir. 1995)).
In determining whether res judicata bars a suit on a motion to dismiss, the court must, of
course, accept all well pled facts in the complaint as true, however, the court may also take
notice of matters outside the complaint that are of public record. Hoffman v. Nordic Nats., Inc.,
837 F.3d 272, 280 n.52 (3d Cir. 2016). For example, the court may consider court-filed
documents such as complaints, because complaints are matters of public record. Id.
In the present case, Defendant has successfully established each of the three elements of
res judicata. First, in the prior suit titled Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
No. 13-3256, United States Magistrate Judge Richard A. Lloret entered a final judgment on the
merits on September 22, 2014 when he issued the September 22 Order. The September 22 Order
constituted a final judgment on the merits on its face not only because it provided that the case
was “DISMISSED WITH PREJUDICE,” but also because the order affirmatively approved and
enforced the on-the-record settlement agreement that had been reached by the Parties at the May
27, 2014 settlement conference before Judge Lloret. Order, Zong v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Sept. 22, 2014), ECF No. 58. As explained above,
such judicially-approved settlement agreements constitute final judgments for the purposes of res
judicata.
Second, the parties involved in the prior suit are the same parties involved in the present
suit. In the prior suit, Plaintiff Zong sued his former employer, Defendant Merrill Lynch, Pierce,

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Fenner & Smith, Inc., a wholly-owned subsidiary of Bank of America Corp. In the present suit,
Plaintiff Zong sued his former employer, Defendant Merrill Lynch/Bank of America. Between
the prior suit and the present suit, the parties are identical. Moreover, between the prior and
present cases the parties are identically situated with Zong as Plaintiff in both cases, and his
employer Merrill Lynch/Bank of America Corp. as Defendant in both cases.
Third, the present suit is based on the same cause of action as the prior suit. In the prior
suit, Zong filed suit against Merrill Lynch alleging violations of “Title VII of the Civil Rights
Act (42 U.S.C. § 2000e, et. [sic] seq.)”. Second Am. Compl. at ¶ 1, Zong v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Nov. 13, 2013), ECF No. 9. In the present
suit, Zong filed a suit against Merrill Lynch/Bank of America alleging violations of “Title VII
(42 U.S.C. § 2000e, et seq).” Compl. 2, Zong v. Merrill Lynch/Bank of America, No. 14-6010
(E.D. Pa. Oct. 23, 2014), ECF No. 1. Thus, on its face, the causes of action between the prior
and present law suit are the same. Further, the factual allegations contained in the Second
Amended Complaint in the prior suit and the Complaint in the present suit are substantively, and
in most instances formally, the same. For example, in the Second Amended Complaint, Plaintiff
alleged:
16.

On February 15, 2012, Plaintiff filed a charge for employment
discrimination with the Equal Employment Opportunity Commission
(“EEOC”) in Philadelphia on the basis of race discrimination and
retaliation (EEOC Charge No. 530-2012-01276). This EEOC Charge was
cross-filed with the Pennsylvania Human Relations Commission
(“PHRC”) on May 14, 2012.

Second Am. Compl. at ¶ 16, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256
(E.D. Pa. Nov. 13, 2013), ECF No. 9.
In the present Complaint, Plaintiff alleged, using nearly identical language, that:

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1.

On February 15, 2012, Plaintiff filed a charge for employment
discrimination with the Equal Employment Opportunity Commission
(“EEOC”) in Philadelphia on the basis of race discrimination and
retaliation (EEOC Charge No. 530-2012-01276). It was cross-filed with
the Pennsylvania Human Relations Commission (PHRC) on May 14,
2012.

Compl. 2, Zong v. Merrill Lynch/Bank of America, No. 14-6010 (E.D. Pa. Oct. 23, 2014), ECF
No. 1. Thus, not only are the substantive allegations identical between the prior suit and the
present suit, most of the language used in the present Complaint is taken directly and verbatim
from the Second Amended Complaint of Plaintiff’s prior suit. These similarities demonstrate
that the legal claims are the same between the two suits.
In short, the Court concludes that Plaintiff Raymond Zong’s present suit is barred by the
doctrine of res judicata because Zong’s prior suit was dismissed with prejudice upon the entry of
a final judgment on the merits, Zong’s prior suit was filed against the same defendant as the
defendant in the present case, and the present Complaint alleges the same cause of action that
was adjudicated in Zong’s prior suit.
IV.

CONCLUSION
For the reasons set forth above, Defendant Merrill Lynch, Pierce, Fenner & Smith, Inc.’s

Motion to Dismiss Zong’s Complaint (Doc. 26) is GRANTED and Plaintiff Raymond Zong’s
Complaint is DISMISSED WITH PREJUDICE. An appropriate Order follows.

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