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Ferebee v. Eastern Motors Dealership

United States District Court, D. Maryland

July 11, 2017

RENEE (COG) FEREBEE, Plaintiff,
v.
Eastern Motors Dealership, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge.

         Renee Ferebee, a self-represented litigant residing in Temple Hills, Maryland, filed this lawsuit, alleging that Defendants SABMD, LLC, t/a Easterns Automotive Group ("Easterns"), [1] Mr. Dalni Tahrui, and Mr. Lee discriminated against her when they would not allow her to test drive a 2014 BMW. Compl. 1, ECF No. .. In addition to what appears to be a discrimination claim under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. SS 2000e et seq. Ferebee claims "defamation of character, age, race, threats, [and] sabortagement [sic]." Id. Although Ferebee does not provide the date of the alleged incident, she attaches a complaint that she filed against Easterns in the Circuit Court for Prince George's County, Maryland ("State Court Litigation") on August 4, 2014, describing the same incident as having happened the day before she filed suit in state court. State Ct. Compl, ECF NO.1-1.

         Easterns has filed a Motion to Dismiss, ECF NO.9, which the parties fully briefed, ECF Nos. 9-1, 12, 13, 15, 7., 17. A hearing is not necessary. See Loc. R. 105.6. Because Ferebee filed suit against Easterns on the same grounds in the State Court Litigation, and that case was dismissed with prejudice, I will grant Defendant's Motion and dismiss Ferebee's suit with prejudice.

         Motion to Proceed in Forma Pauperis

         Plaintiff seeks leave to proceed in forma pauperis. ECF NO.2. Plaintiffs affidavit is not a picture of clarity. She claims that she is a self-employed attorney, earning $13, 000 monthly. Pl.'s Mot. 1. She also indicates that she is retired and collects approximately $353 per month in retirement benefits, as well as $1, 200 per month in social security income. Id. at 2. She indicates that she has $223 in cash, $42 in her checking account, and $180 in her savings account, and owns no assets. Id. at 2-3. She claims that trillions of dollars are owed to her by various entities. Id. at 3. She lists approximately $14, 000 in monthly expenses. !d. at 4. Notwithstanding the discrepancies in Plaintiffs affidavit, the Court will grant her Motion for Leave to Proceed in Forma Pauperis.

         Motion to Dismiss

         Under Rule 12(b)(6), Ferebee's pleadings are subject to dismissal if they "fail[ ] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), and must state "a plausible claim for relief, " Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). "A claim has facial plausibility when the [claimant] pleads factual content that allows the court to draw the reasonable inference that the [opposing party] is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Rule 12(b)(6)'s purpose "is to test the sufficiency of a [claim] and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). If an affirmative defense "clearly appears on the face of the [pleading], " however, the Court may rule on that defense when considering a motion to dismiss. Kalas v. Centennial Sur. Assocs., No. CCB-12-1532, 2012 WL 6210117, at *2 (D. Md. Dec. 12, 2012) (quoting Andrews v. Daw, 201 F.3d 521, 524 n. 1 (4th Cir. 2000) (citation and quotation marks omitted)). One such affirmative defense is res judicata.

         Ferebee is proceeding pro se, and her Complaint is to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, liberal construction does not absolve Plaintiff from pleading plausible claims. See Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md. 1981) (citing Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir. 1977)).

         Although at this stage of the proceedings, I accept the facts as alleged in Ferebee's Complaint as true, see Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011), when reviewing a motion to dismiss, I "may consider documents attached to the complain,, as well as documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed." Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see CACI Int'l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009); see also Fed. R. Civ. P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."). Additionally, I may take judicial notice of state court documents pursuant to Fed.R.Evid. 201 and 803(8)(a)(1). Consideration of documents that the plaintiff references and relies upon does not convert a motion to dismiss into a motion for summary judgment. See Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007).

         When a federal court litigant asserts that a state court judgment has preclusive effect, "[the] federal court must give to [the] state court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra v. Warren City Sch. Dist. Ed. of Educ, 465 U.S. 75, 81 (1984). Under Maryland law, res judicata, or claim preclusion, provides grounds for dismissal if a defendant establishes that "(1) the present parties are the same or in privity with the parties to the earlier dispute, (2) the claim presented is identical to the one determined in the prior adjudication, and (3) there has been a final judgment on the merits." Capel v. Countrywide Home Loans, Inc., No. WDQ-09-2374, 2010 WL 457534, at *3 (D. Md. Feb. 3, 2010) (citing Anne Arundel County Ed. of Educ. v. Norville, 887 A, 2d 1029, 1037 (Md. 2005)).

         Ferebee only named Easterns as a defendant in the State Court Litigation, see State Ct. Compl. 1, whereas she filed suit in this Court against Easterns employees Mr. Dalni Tahrui and Mr. Lee, as well as Easterns, see Compl. 1; Pl.'s Opp'n 1.[2]

In Maryland, privity is determined by a functionalist test-those who "have a direct interest in the suit...[or] are so far represented by another that their interests receive actual and efficient protection" are privies. Cochran v. Griffith Energy Servs., Inc., 43 A.3d 999, 1003 (Md. 2012). As a result, "Maryland recognizes that a principal and his agent are in privity." Kutzik v. Young, 730 F.2d 149, 152 (4th Cir. 1984); see also deLeon v. Slear, 616 A.2d 380, 399 (Md. 1992) (holding that an employee was in privity with her employer).

Clark v. 100 Harborview Drive Council of Unit Owners, No. JFM-14-3122, 2016 WL 1159198, at *8 (D. Md. Mar. 23, 2016). Thus, the employee Defendants are in privity with Easterns. See id.

         In the State Court Litigation, Plaintiff claimed discrimination based on race, age and "mental capabilities, " as well as defamation. State Ct. Compl. 1-2. Here, she claims "defamation of character, age, race, threats, [and] sabortagement [sic]." Id. Under Maryland law, courts apply the transaction test to determine whether claims are identical. See Kent Cnty. Bd of Educ. v. Bilbrough,525 A.2d 232, 238 (Md. 1987). "Under the transaction test, a 'claim' includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the claim arose." Boyd v. Bowen,806 A.2d 314, 325 (Md. Ct. Spec. App. 2002) (citing FWB Bank v. Richman,731 A.2d 916, 928 (Md. 1999)). Notably, res judicata bars not only claims from the original litigation, but also other claims that could have been brought in the original litigation. Id. (citing Gertz v. AnneArundel Cnty.,661 A.2d 1157, 1161 (Md. 1995)). The defamation and discrimination claims clearly were raised in the earlier ...


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