United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
Ferebee, a self-represented litigant residing in Temple
Hills, Maryland, filed this lawsuit, alleging that Defendants
SABMD, LLC, t/a Easterns Automotive Group
("Easterns"),  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.
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.
to Proceed in Forma Pauperis
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
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.
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
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).
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)).
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.
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.
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