Kennedy v. Boardman, Civil Action No. 16–cv–02235 (BAH)

• Decision Date: 17 January 2017
• Docket Number: Civil Action No. 16–cv–02235 (BAH)
• Citation: 233 F.Supp.3d 117
• Parties: Sheila KENNEDY, Plaintiff, v. Joseph H. BOARDMAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

233 F.Supp.3d 117

Sheila KENNEDY, Plaintiff,

v.Joseph H. BOARDMAN, et al., Defendants.

Civil Action No. 16–cv–02235 (BAH)

United States District Court, District of Columbia.

Signed January 17, 2017

Sheila Kennedy, Ft. Lauderdale, FL, pro se.

William James Delany, P. David Larson, Morgan, Lewis & Bockius LLP, Washington, DC, for Defendants.

Stephen Bruce Rakusin, Fort Lauderdale, FL, pro se.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, Sheila Kennedy, who is proceeding pro se , is a former employee of the National Railroad Passenger Corporation, d/b/a Amtrak ("Amtrak"). Despite this Court's prior thorough consideration of the legality of the circumstances of the plaintiff's employment and termination, see Kennedy v. AMTRAK , 139 F.Supp.3d 48, 67 (D.D.C. 2015) ("Kennedy I ") (granting "the defendant's motion for summary judgment on the plaintiff's claims of sexual harassment, hostile work environment and retaliation," under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the D.C. Human Rights Act, D.C. Code § 2–1401.01 et seq.("DCHRA")), she has persisted in pursuing these claims, resulting in dismissal by this Court of her claims a second time, see Kennedy v. Boardman , No. 16–2125, 2016 U.S. Dist. LEXIS 149890, at *1 (D.D.C. Oct. 20, 2016) ("Kennedy II ") (dismissing certain claims as "procedurally barred" and "any remaining claims [as] inadequately pled"). The instant lawsuit is the third instance of the plaintiff reiterating essentially the same claims arising from the same facts already resolved against her.

Specifically, the plaintiff's instant lawsuit asserts six claims against defendants Amtrak and Joseph Boardman, Amtrak's President (collectively, "Amtrak Defendants"), alleging sexual harassment, hostile work environment, retaliation, and constructive termination in violation of public policy, Compl. ¶¶ 22–56 (Counts I–VI), ECF No. 1–1, and unenumerated claims against defendants Andrew Sakallaris and the law firm of Morgan, Lewis & Bockius LLP, counsel to Amtrak (collectively, "Amtrak Counsel"), and Stephen Rakusin, the plaintiff's former counsel, alleging these lawyers unlawfully deprived her of Due Process in violation of the Fifth, Seventh, and Fourteenth Amendments of the United States Constitution, id. ¶¶ 57–59. Now pending before the Court are the defendants' motions to dismiss, see Amtrak Defs. and Amtrak Counsel's Mot. Dismiss ("Defs.' MTD"), ECF No. 3; Def. Stephen Rakusin's Mot. Dismiss (Def.'s MTD"), ECF No. 7; and the plaintiff's motion to remand, Pl's Mot. Remand/Resp. Defs.' Mot. Dismiss ("Pl.'s Resp."), ECF No. 10. As discussed in more detail below, the defendants' pending motions to dismiss are granted and the plaintiff's motion to remand is denied.

I. BACKGROUND

The factual background of the plaintiff's employment with Amtrak is set out in Kennedy I , 139 F.Supp.3d at 52–57, and given its limited relevance in resolving the instant motions will not be repeated here. In October 2016, the plaintiff filed the instant action in the Superior Court for the District of Columbia, and an identical complaint in this Court ("Second DCD Complaint"). Cf. Defs.' Notice of Removal, Ex. A (Complaint), ECF No. 1–1; id . Ex. B (Second DCD Complaint), ECF No. 1–2. The defendants subsequently removed this action to this Court. See generally Notice of Removal, ECF No. 1. Meanwhile, the Second DCD Complaint was dismissed sua sponte by this Court, on October 20, 2016, because the plaintiff's claims against the Amtrak Defendants were barred by the doctrine of res judicata , and the new claims against Amtrak Counsel and the plaintiff's prior counsel failed to satisfy the pleading requirements of Federal Rules of Civil Procedure 8(a). See Kennedy II, 2016 U.S. Dist. LEXIS 149890, at *2–3; see Defs.' Notice of Removal, Ex. C (Order, dated Oct. 20, 2016, dismissing DCD Complaint "against Amtrak and its privies ... with prejudice" and remaining claims against Amtrak Counsel and the plaintiff's former counsel "without prejudice"), ECF No. 1–3.

II. DISCUSSION

All of the defendants seek dismissal of the instant complaint, but the plaintiff's former counsel asserts grounds for dismissal on different bases than his co–defendants.¹ The two pending motions to dismiss are addressed following discussion of the plaintiff's request for remand of this case to the District of Columbia Superior Court.

A. The Plaintiff's Request for Remand Is Denied

The plaintiff asserts that because "[t]his court ‘lacks' subject matter jurisdiction ... [it] must remand the Plaintiff's ‘case’ back to the District Superior Court ... pursuant to 28 U.S.C. ss [sic] 1447(c)." Pl.'s Resp. at 2. She is wrong. This Court has subject matter jurisdiction over the instant complaint under 28 U.S.C. §§ 1331 and 1349. See Defs.' Notice of Removal at 4. To be precise, the complaint raises claims "arising under the Constitution [and] laws ... of the United States,"id. § 1331, by alleging violations of 42 U.S.C. §§ 1981, 1983, 1985 and 1986 ; "42 U.S.C. 12132, 12182, 122203 (Americans with Disabilities Act of 1990, ADA)," and "42 U.S.C. sec 2000e, et sec.," as well as violations of the plaintiff's civil rights "under the Fifth, Seventh and Fourteenth Amendments to the United States Constitution." Compl. ¶¶ 2–3. Additionally, the complaint seeks relief from Amtrak, which was established by an Act of Congress and has over one-half of its stock owned by the United States, meeting the predicate for jurisdiction set out in 28 U.S.C. § 1349. See AMTRAK v. Lexington Ins. Co. , 365 F.3d 1104, 1105 (D.C. Cir. 2004) ("The case is in federal court because Amtrak is a federal corporation and the federal government owns more than one-half of its stock." (citing 28 U.S.C. § 1349 )).²

Accordingly, this case was properly removed to this Court, which has subject matter jurisdiction over the claims, and the plaintiff's request for remand to the Superior Court is denied.

B. The Plaintiff's Claims Against the Amtrak Defendants Are Barred

The instant complaint asserts claims against Amtrak that have been previously addressed twice by this Court, and claims against Amtrak's President and Counsel and the plaintiff's prior counsel that have been addressed once before. In Kennedy I , summary judgment was granted to Amtrak on the plaintiff's claim of retaliation during an employment assignment in Miami for failure to exhaust her administrative remedies,³ and on her claims of sexual harassment, hostile work environment, and retaliation during her employment assignments in Washington, D.C., due to her failure, after extensive discovery, "to produce sufficient evidence for a reasonable jury to find that Amtrak's asserted non-discriminatory reasons for its treatment of the plaintiff—namely, her poor job performance in three different job assignments in two different cities—was not the actual reason for such treatment." 139 F.Supp.3d at 67 ; see also id . at 56(summarizing six claims against Amtrak for "sexual harassment, hostile work environment and retaliation, in violation of Title VII, in Counts I, III and V, respectively, and the same three claims, in violation of the DCHRA, in Counts II, IV and VI, respectively").

Kennedy II , issued on October 20, 2016, addressed essentially the same claims resolved against Amtrak in Kennedy I and the identical claims asserted in the instant complaint against both Amtrak Defendants. The court in Kennedy II explained that the six claims against the Amtrak Defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ; 42 U.S.C. §§ 1981, 1983, 1985 and 1986 ; the Americans with Disabilities Act, 42 U.S.C. § 12132 et seq. ; and the D.C. Human Rights Act, D.C. Code § 2–1401.01 et seq. , were "based on the same events that allegedly began in 2009 and formed the basis of plaintiff's previous case where Amtrak prevailed on summary judgment," and therefore were procedurally barred by application of the doctrine of res judicata . Kennedy II , 2016 U.S. Dist. LEXIS 149890 at *2–3.⁴ In view of the two prior decisions in Kennedy I and II , the Amtrak Defendants seek dismissal of "the instant copycat complaint" against them "as barred by res judicata ." Defs.' MTD at 2. These defendants are correct.

"The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as ‘res judicata.’ " Taylor v. Sturgell , 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). Claim preclusion "forecloses ‘successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.’ " Id . (quoting New Hampshire v. Maine , 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) ). At the same time, issue preclusion, which was "once known as ‘collateral estoppel’ and ‘direct estoppel,’ " bars "successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim." Id . at 892, 128 S.Ct. 2161 & n.5 (internal citations and quotation marks omitted); see also U.S. Postal Serv. v. Am. Postal Workers Union , 553 F.3d 686, 696 (D.C. Cir. 2009) ("Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." (internal quotation marks and citation omitted)). Thus, " ‘[r]es judicata ... bars relitigation not only of matters determined in a previous litigation but also ones a party could have raised.’ " Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC , 569 F.3d 485, 491 (D.C. Cir. 2009) (quoting NRDC v. Thomas , 838 F.2d 1224, 1252 (D.C. Cir. 1988) ).

The doctrine of res judicata serves to "protect against ‘the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and...