United States District Court, D. Maryland
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE.
pending and ready for resolution in this employment
discrimination case is the motion to dismiss filed by
Defendant Coastal International Security, Inc.
(“Defendant”). (ECF No. 13). The issues have been
briefed, and the court now rules, no hearing being deemed
necessary. Local Rule 105.6. For the following reasons, the
motion to dismiss will be granted.
George Washington is a war veteran and worked as a security
officer for Defendant from July 2010 until he was terminated
in July 2013. In August 2013, Plaintiff filed a
complaint alleging that Defendant discriminated in violation
of the Uniformed Services Employment and Reemployment Rights
Act (“USERRA”) when it terminated him. After the
close of discovery, Defendant moved for summary judgment
arguing that it had terminated Plaintiff's employment
because of numerous violations of the employment code.
Defendant's motion was granted, and judgment was entered.
Washington v. Coastal Int'l Sec., Inc., No.
DKC-14-0331, 2015 WL 4396616 (D.Md. July 16, 2015),
aff'd, 633 Fed.Appx. 186 (4th Cir.
November 18, 2017, Plaintiff filed this action against
Defendant. It appears that at some point after his
termination from Defendant, Plaintiff obtained employment at
a different security firm. He was working for that firm at a
government site in Crystal City, Virginia. Defendant
“assume[d] contract operation” at that site on
August 1, 2017. (ECF No. 1-1, at 1). When Defendant took over
the Crystal City site, it did not rehire Plaintiff. In the
letter telling Plaintiff of its decision, Defendant stated
that “A review of our records indicates that you were a
previous employee at Coastal and it was noted that you are
ineligible for re-hire with our company.” (ECF No. 1-1
at p. 1). Defendant moved to dismiss. (ECF No. 13). Plaintiff
responded (ECF No. 20), and Defendant replied (ECF No. 21).
Standard of Review
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the sufficiency of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006). A complaint need only satisfy the standard of Rule
8(a)(2), which requires a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” “Rule 8(a)(2) still requires a
‘showing, ' rather than a blanket assertion, of
entitlement to relief.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must
consist of more than “a formulaic recitation of the
elements of a cause of action” or “naked
assertion[s] devoid of further factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted). At this stage, all well-pleaded
allegations in a complaint must be considered as true,
Albright v. Oliver, 510 U.S. 266, 268 (1994), and
all factual allegations must be construed in the light most
favorable to the plaintiff, see Harrison v. Westinghouse
Savannah River Co., 176 F.3d 776, 783 (4th
Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993)). In evaluating
the complaint, unsupported legal allegations need not be
accepted. Revene v. Charles Cty. Comm'rs, 882
F.2d 870, 873 (4th Cir. 1989). Legal conclusions
couched as factual allegations are insufficient,
Iqbal, 556 U.S. at 678, as are conclusory factual
allegations devoid of any reference to actual events,
United Black Firefighters v. Hirst, 604 F.2d 844,
847 (4th Cir. 1979); see also Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir.
se pleadings are liberally construed and held to a less
stringent standard than pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976));
Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberal
construction means that the court will read the pleadings to
state a valid claim to the extent that it is possible to do
so from the facts available; it does not mean that the court
should rewrite the complaint to include claims never
presented. Barnett v. Hargett, 174 F.3d 1128, 1132
(10thCir. 1999). That is, even when pro
se litigants are involved, the court cannot ignore a
clear failure to allege facts that support a viable claim.
Weller v. Dep't of Soc. Servs., 901 F.2d 387,
391 (4th Cir. 1990); Forquer v. Schlee,
No. RDB-12-969, 2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012)
(“[E]ven a pro se complaint must be dismissed
if it does not allege a plausible claim for relief.”
(citation and internal quotation marks omitted)).
addition, dismissal may be proper “when the face of the
complaint clearly reveals the existence of a meritorious
affirmative defense.” Brooks v. City of
Winston-Salem, 85 F.3d 178, 181 (4th Cir.
1996). “[W]hen entertaining a motion to dismiss on the
ground of res judicata, a court may take judicial
notice of facts from a prior judicial proceeding when the
res judicata defense raises no disputed issue of
fact.” Andrews v. Daw, 201 F.3d 521, 524
(4th Cir. 2000). Reference to these facts does not
convert a motion to dismiss into a motion for summary
argues Plaintiff's complaint is barred by res
judicata. Federal common law governs the preclusive
effect of the prior decision. United States ex rel. May
v. Purdue Pharma L.P., 737 F.3d 908, 912 (4th
Cir. 2013). Under federal common law, “[t]he
application of res judicata turns on the existence
of three factors: (1) a final judgment on the merits in a
prior suit; (2) an identity of the cause of action in both
the earlier and the later suit; and (3) an identity of
parties or their privies in the two suits.”
Clodfelter v. Republic of Sudan, 720 F.3d 199, 210
(4th Cir. 2013) (internal quotation marks
omitted). Claims concern the same action when “the
suits and the claims asserted therein ‘arise out of the
same transaction or series of transaction or the same core of
operative facts.'” Pueschel v. United
States, 369 F.3d 345, 355 (4th Cir. 2004)
(quoting In re Varat Enters., Inc., 81 F.3d 1310,
1316 (4th Cir. 1996)).
seems to argue that his termination in May 2013 and
Defendant's refusal to reemploy him violate USERRA. (ECF
No. 1, at 5). Plaintiff and Defendant were the parties to the
prior suit, and the prior suit had a final judgment on the
merits. Washington, 2015 WL 4396616. The prior suit
determined that Plaintiff's dismissal did not violate
extent Plaintiff brings a claim related to his initial
termination, it is clearly barred by res judicata.
Plaintiff seems also to allege that the failure to hire in
2017 was a continuation of the earlier violation, but a
continuing violation “is occasioned by continual
unlawful acts, not continual ill effects from [the alleged]
original violation.” Nat'l Adver. Co v. City of
Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991).
Here, Plaintiff points to no new unlawful acts and instead
repeats that his previous termination was unlawful.
Accordingly, the complaint, both as to the original
termination and later refusal to rehire is barred by res
judicata and will be dismissed.
an abundance of caution, however, Plaintiff will be given a
brief period to amend the complaint. In his complaint,
Plaintiff checked the box for failure to hire, but he has
pled no facts alleging a separate cause of action for failure
to hire in 2017 under USERRA. In light of the liberal policy
favoring amendment ...