Rojas v. Elbit Systems of America, LLC
Memorandum Opinion and Order granting 7 Motion to Dismiss. (see order for specifics) (Ordered by Judge John McBryde on 3/8/2018) (mpw)
IN THE UNITED STATES DISTRICT COD T
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
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ELBIT SYSTEMS OF AMERICA, LLC,
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Elbit
Systems of America, LLC, to dismiss. The court, having considered
the motion, the response of plaintiff, Eduardo Rojas, the reply,
the record, and applicable authorities, finds that the motion
should be granted.
On April 11, 2017, plaintiff and others filed a lawsuit
against defendant and others in the United States District Court
for the Western District of Texas, San Antonio Division, under
Civil Action No. 5:17-CV-00307-DAE (the "San Antonio action")
Doc. 1 8, Ex. 1. Plaintiff alleged: On September 16, 2014, one
employee sexually harassed another by making one statement; on
September 18, 2014, the employee who had been harassed wrote and
delivered a letter to human resources complaining of the
"reference is to the number of the item on the docket in this action.
harassment. Id. at 6,
, , 20-21. Those who had witnessed the
harassment also complained and were terminated.
28. One of the witnesses, Joseph Trevino
, 22; id. at
contacted plaintiff to complain and, id., a t , 26, on September
26, 2014, plaintiff complained to defendant's management and
emailed its in-house counsel alleging retaliatory termination of
the witnesses •as well as issues related to losing more than half
of the DOD project crew in Hawaii." Id. at 8,
29. On September
29, 2014, plaintiff met with counsel for defendant •to discuss
his concerns regarding,
inter alia, the harassment
retaliatory terminations." Id.,
30. On October 29, 2014,
defendant removed all programs from plaintiff's workload, forcing
him to sit substantially idle for several months.
March 2, 2015, defendant terminated plaintiff's employment,
citing a reduction in force.
Id. at 9,
In the San Antonio action, plaintiff sued defendant for
retaliation under Title VII, seeking damages under 42 U.S.C.
2000e-5, including back pay,
front pay, and other equitable
relief. Doc. 8 at 10-11, 15. Defendant filed a motion to dismiss.
Id. at 69. On July 3, 2017, plaintiff filed an amended complaint.
Id., Ex. 2. Defendant filed another motion to dismiss. Id., Ex.
3. The court granted the motion, dismissing plaintiff's claims
Id., Ex. 4. The court found that reliance on a
single, isolated comment would not support a retaliation claim.
Id. at 68.
On November 22, 2017, plaintiff filed his original complaint
in this action. Doc. 1. In it, he alleges: On September 16, 2014,
plaintiff reviewed an email from Trevino. Doc. 5 at 4,
, 11. On
September 26, 2014, plaintiff emailed defendant's in-house
counsel regarding his concerns with safety regulation compliance
and "issues related to losing more than half of the DOD project
crew in Hawaii." I d . , , 12. On September 29, 2014, plaintiff met
with counsel for defendant "to discuss his concerns regarding
compliance with safety regulations on the DOD project and the
recent terminations of individuals at the site in Hawaii." Id. at
5, , 13. On October 9, 2014, plaintiff and Trevino contacted the
Judge Advocate General's Corps and the Department of Defense,
Officer of the Inspector General regarding "concerns with safety
regulation compliance on the DOD project and personnel issues at
the Hawaii site." Id.,
, 15. Plaintiff provided substantial
information to assist an investigation into his concerns. Id. at
6, , 16. on October 29, 2014, defendant removed all programs from
plaintiff's workload, forcing him to sit idle for several months.
, 22. On March 2, 2015, defendant terminated plaintiff,
citing a reduction in force. Id., at 9, , 29.
Plaintiff now sues defendant for retaliation under 10 U.S.C.
2409, referred to as the Defense Contractor Whistleblower
("DCWPA"), and 31 U.S.C.
False Claims Act
3730(h), a part of the
("FCA"). He seeks to recover the same relief
sought by the San Antonio action, that is, back pay,
and other equitable relief. Doc. 5 at 16.
Ground of the Motion
Defendant maintains that plaintiff's claims are barred by
res iudicata, plaintiff having previously filed a lawsuit based
on the same nucleus of operative facts.
Applicable Legal Standard
Dismissal under Rule 12(b) (6) on res iudicata grounds is
appropriate when the elements of res judicata are apparent on the
face of the pleadings. Dean v. Mississippi Bd. of Bar Admissions,
394 F. App'x 172, 175 (5th Cir. 2010). In making such a ruling,
"[t]he court may consider documents attached to or incorporated
in the complaint and matters of which judicial notice may be
United States ex rel. Willard v. Humana Health Plan of
Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003).
Under Fifth Circuit law,
"res judicata is the •venerable
legal canon' that insures the finality of judgments and thereby
conserves judicial resources and protects litigants from multiple
Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499
(5th Cir. 2004)
(quoting United States v. Shanbaum, 10 F.3d 305,
310 (5th Cir. 1994)).
The doctrine precludes the relitigation of
claims which have been fully adjudicated or arise from the same
subject matter, and that could have been litigated in the prior
Nilsen v. City of Moss Point, 701 F.2d 556, 561 (5th
Under res judicata, a prior judgment bars a
subsequent judgment when (1) the parties are identical or in
(2) the judgment in the prior action was rendered by a
court of competent jurisdiction;
(3) the prior action was
concluded by a final judgment on the merits; and (4) the same
claim or cause of action was or could have been involved in both
Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559,
571 (5th Cir. 2005).
In determining whether the same claims or causes of action
are brought, the Fifth Circuit has adopted the transactional
test, in which all claims arising from a "common nucleus of
operative facts" and could have been brought in the first
lawsuit, are barred by res judicata.
Procter & Gamble, 376 F.3d
In Nilsen, the court explained:
[I]t is black-letter law that res judicata, by contrast
to narrower doctrines of issue preclusion, bars all
claims that were or could have been advanced in support
of the cause of action on the occasion of its former
. not merely those that were
Nilson, 701 F.2d at 560
(emphasis in original).
See also Petro-
Hunt, L.L.C. v. United States, 365 F.3d 385, 395-96 (5th Cir.
(prior judgment's preclusive effect extends to all rights
of plaintiff •with respect to all or any part of the transaction,
or series of connected transactions, out of which the [original]
action arose."); Matter of Howe, 913 F.2d 1138, 1144 (5th Cir.
("[T]he critical issue is not the relief requested or the
theory asserted but whether plaintiff bases the two actions on
the same nucleus of operative facts.•)
There is no dispute as to the first three elements of res
judicata. 2 Both plaintiff and defendant were parties to the San
Antonio action. The court had jurisdiction over the claims
asserted. And, the San Antonio action was concluded by final
judgment on the merits.
Plaintiff does not contest that the two
actions concern the same nucleus of operative facts. Agrilectric
Power Partners, Ltd. v. Gen. Elec. Co., 20 F.3d 663, 665
Cir. 1994). Rather, he maintains that the claims asserted here
Although plaintiff argues that the San Antonio comi was not a court of competent jurisdiction,
he does not contest that the comt had jurisdiction over the claims asserted in the San Antonio action. He
argues that the court would not have had jurisdiction over the claims he is asserting here.
could not have been brought in the San Antonio action.
Specifically, although all of the facts giving rise to the claims
here had occurred at the time the San Antonio action was filed,
plaintiff says that he could not have brought his claim under
DCWPA because he had to exhaust his administrative remedies
first. And, he takes that position that because the claim under
the FCA is factually inseparable, he was unable to assert it
before the San Antonio action was dismissed. Doc. 10 at 2.
Plaintiff has no support for the proposition that he could
not have asserted the FCA claim in the San Antonio action. And,
the cases he cites regarding the necessity of exhausting
administrative remedies before asserting the DCWPA claim are not
persuasive. As the Fifth Circuit has made plain, an exhaustion
requirement is not jurisdictional in the absence of an explicit
statutory requirement. Williams v. J.B. Hunt Transport. Inc.,
F.3d 806, 810
(5th Cir. 2016). The DCWPA does not contain the
type of explicit statutory language required to make the
administrative relief provision jurisdictional. Quinn v. Boaz
Inc., No. 3:14CV111/MCR/EMT, 2014 WL 12323684, at
(N.D. Fla. Dec. 2, 2014). Because plaintiff's claims arose
from the same common nucleus of operative facts as the claims in
the San Antonio action, plaintiff was on notice that he must
assert them. Murry v. General Servs. Admin., 553 F. Appx. 362,
365 (5th Cir. 2014) (lack of a right to sue letter does not affect
the rules of res judicata); Davis v. Dallas Area Rapid Transit,
383 F.3d 309, 316 (5th Cir. 2004). Having failed to do so, these
claims are now barred by res judicata.
The court ORDERS that defendant's motion to dismiss be, and
is hereby, granted, and plaintiff's claims against defendant be,
and are hereby, dismissed.
SIGNED March 8, 2018.
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