UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STEPHEN E. McMILLAN

Plaintiff, v. No. 18-cv-2362 (EGS) WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

Defendant.

MEMORANDUM OPINION

In 2010, Plaintiff Stephen E. McMillan (“Mr. McMillan”),

proceeding pro se, brought an employment discrimination lawsuit

against Defendant Washington Metropolitan Area Transit Authority

(“WMATA”) under Title VII of the Civil Rights Act (“Title VII”),

42 U.S.C. § 2000e, et seq., as well as the First and Fourteenth

Amendments to the United States Constitution, arising out of the

termination of his employment. In 2012, this Court granted

WMATA’s motion for summary judgment, finding, inter alia, that:

(1) Mr. McMillan failed to exhaust his administrative remedies

with respect to several of his Title VII claims; (2) WMATA

asserted a legitimate, nondiscriminatory explanation for its

discipline and termination of Mr. McMillan; (3) Mr. McMillan

failed to demonstrate that WMATA’s explanation was a pretext for

discrimination, and no reasonable jury could find that WMATA’s

stated reasons for his termination were pretextual; and (4) WMATA was immune from Mr. McMillan’s constitutional claims,

which were construed as claims under 42 U.S.C § 1983. McMillan

v. Wash. Metro. Area Transit Auth.,

, 68-

72 (D.D.C. 2012) (“McMillan I”). Mr. McMillan appealed the

Court’s decision, and the United States Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”) dismissed the

appeal for lack of prosecution.

Undeterred, Mr. McMillan brings a new Title VII action

against WMATA, alleging employment discrimination and

malfeasance. WMATA moves to dismiss the action with prejudice,

arguing that Mr. McMillan cannot relitigate his termination.

Upon careful consideration of the motion, opposition and reply

thereto, the applicable law, and the entire record herein, the

Court concludes that Mr. McMillan’s complaint fails to state a

claim upon which relief can be granted, and that the doctrine of

res judicata bars this action because it is another challenge to

Mr. McMillan’s termination. Accordingly, the Court GRANTS

WMATA’s motion to dismiss and DISMISSES WITH PREJUDICE the

Complaint.

I. Background

The factual background in this case, which is set forth in

greater detail in the prior Opinion, will not be repeated in

2 full here. 1 See McMillan I,

. In November

1999, WMATA hired Mr. McMillan as an elevator and escalator

technician.

. After his inquiry into the status and

distribution of a bonus owed to another WMATA employee who

recruited him to work at WMATA, Mr. McMillan allegedly

experienced “negative consequences” for the rest of his career

there. Id.; see also Def.’s Statement of Material Facts Not in

Dispute, McMillan I, Civil Action No. 10-1867, ECF No. 15-2 at 2

¶ 3. 2 According to him, WMATA denied him career advancement

opportunities. McMillan I,

. And he

observed WMATA exclusively hiring female employees for

administrative job openings without regard to time-in-service or

time-in-grade.

Mr. McMillan lodged a complaint with WMATA’s Office of

Civil Rights, alleging “mismanagement” and “discrimination,”

and he attempted to file one with WMATA’s Inspector

1 Mr. McMillan’s one-page complaint does not include numbered paragraphs as required by Federal Rule of Civil Procedure 10(b). Nonetheless, the Court considers the documents attached to his complaint, see Compl., ECF No. 1-1 at 1-16, including his complaint filed in McMillan I. See Ward v. D.C. Dep’t of Youth Rehab. Servs.,

(D.D.C. 2011) (“[A] court may consider on a motion to dismiss the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint[.]” (citation and internal quotation marks omitted)). 2 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 3 General’s Office to allege fraud, waste, and abuse.

at 66-

67. WMATA’s Office of Civil Rights concluded that his complaint

did not fall within the purview of Title VII because it failed

to involve discrimination allegations, and recommended that Mr.

McMillan contact his union representative or superintendent. Id.

at 66.

Between February 2007 and June 2008, Mr. McMillan was

involved in at least four separate incidents at WMATA that

resulted in disciplinary actions, including a written warning

and three suspensions. Id. at 67, 72; see also Letter from David

A. Lacosse, Director, Office of Elevator & Escalator Servs., to

Mr. McMillan (Dec. 3, 2008), McMillan I, Civil Action No. 10-

1867, ECF No. 15-3 at 3. Pending the outcome of an investigation

into “annual and monthly preventive maintenance” work that he

was tasked with performing at a Metrorail station escalator

unit, WMATA placed Mr. McMillan on administrative leave in

November 2008. Id. at 2. One month later, WMATA terminated Mr.

McMillan, citing his work-related incidents and negligence in

performing the maintenance work. Id. at 2-3.

Mr. McMillan filed his first Title VII lawsuit against

WMATA on November 2, 2010 after filing a charge of

discrimination with the United States Equal Employment

Opportunity Commission (“EEOC”) and receiving the EEOC’s

Dismissal and Notice of Rights. McMillan I,

4 72 at 67. Mr. McMillan alleged, inter alia, that WMATA

retaliated against him from April 11, 2002 through June 10,

2008.

On October 12, 2012, this Court granted WMATA’s motion

for summary judgment,

, and entered final judgment in

favor of WMATA, Order, McMillan I, Civil Action 10-1867, ECF No.

22 at 1. The Court found that: (1) WMATA was immune from Mr.

McMillan’s constitutional claims, which the Court construed as

claims brought under

, McMillan I,

; (2) Mr. McMillan failed to exhaust his

administrative remedies with respect to several of the Title VII

claims, except his retaliation claim as to the termination,

; (3) WMATA asserted a legitimate, nondiscriminatory

explanation for its discipline and termination of Mr. McMillan,

, and (4) Mr. McMillan failed to demonstrate that

WMATA’s explanation was pretextual, and a reasonable jury could

not find that WMATA’s stated reasons were pretextual,

On

October 31, 2012, Mr. McMillan filed a Notice of Appeal, Pl.’s

Notice of Appeal, McMillan I, Civil Action 10-1867, ECF No. 24

at 1. The D.C. Circuit dismissed the appeal for lack of

prosecution because Mr. McMillan failed to respond to an Order

to Show Cause. Order, McMillan v. Wash. Metro. Area Transit

Auth., No. 12-7117 (D.C. Cir. Feb. 14, 2013).

More than five years later, Mr. McMillan, proceeding pro

se, filed a new complaint against WMATA, alleging discrimination

5 and “malfeasance” in WMATA’s General Counsel’s Office, the EEOC,

and the United States District Court. Compl., ECF No. 1 at 1.

WMATA filed a motion to dismiss on November 9, 2018. See Def.’s

Mot. to Dismiss, ECF No. 6 at 1. WMATA moves to dismiss Mr.

McMillan’s complaint on two grounds: (1) the Court lacks subject

matter jurisdiction over this case because Mr. McMillan’s

complaint is barred by res judicata, id.; and (2) the complaint

fails to state a claim upon which relief can be granted, Def.’s

Mem. of Law in Support of Def.’s Mot. to Dismiss (“Def.’s

Mem.”), ECF No. 6-1 at 4. Mr. McMillan filed his opposition

brief on December 13, 2018, Pl.’s Opp’n, ECF No. 10 at 1, and

WMATA filed its reply brief on December 18, 2018, see Def.’s

Reply, ECF No. 11. The motion is ripe and ready for the Court’s

adjudication.

II. Legal Standard

The pleadings of pro se parties, such as the plaintiff in

the instant action, are “to be liberally construed, . . . and a

pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus,

(2007) (citations

and internal quotation marks omitted). Nevertheless, “[a]lthough

a court will read a pro se plaintiff’s complaint liberally, a

pro se complaint must present a claim on which the court can

grant relief.” Chandler v. Roche,

, 168

6 (D.D.C. 2002).

A. Rule 12(b)(6)

1. Failure to State a Claim

“A Rule 12(b)(6) motion tests the legal sufficiency of a

complaint[.]” Browning v. Clinton,

(D.C. Cir.

2002). A complaint 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), “in order to give the defendant fair notice

of what the . . . claim is and the grounds upon which it rests,”

Bell Atl. Corp. v. Twombly,

(2007) (citation

and internal quotation marks omitted). “[T]he complaint is

construed liberally in the plaintiff[’s] favor, and [the Court]

grant[s] [the] plaintiff[ ] the benefit of all inferences that

can be derived from the facts alleged.” Kowal v. MCI Comm’cns

Corp.,

(D.C. Cir. 1994). However, the Court

is “not bound to accept as true a legal conclusion couched as a

factual allegation.” Papasan v. Allain,

(1986).

A complaint survives a Rule 12(b)(6) motion only if it

“contain[s] sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal,

(2009) (quoting Twombly,

). A claim is facially plausible “when the

plaintiff pleads factual content that allows the court to draw

7 [a] reasonable inference that the defendant is liable for the

misconduct alleged.”

A complaint alleging facts which are

“‘merely consistent with’ a defendant’s liability . . . ‘stops

short of the line between possibility and plausibility of

entitlement to relief.’”

(quoting Twombly,

).

2. Doctrine of Res Judicata

“[T]he doctrine [of res judicata] is designed to conserve

judicial resources, avoid inconsistent results, engender respect

for judgments of predictable and certain effect, and to prevent

serial forum-shopping and piecemeal litigation.” Hardison v.

Alexander,

(D.C. Cir. 1981). Res judicata

prevents the Court from hearing “repetitious suits involving the

same cause of action once a court of competent jurisdiction has

entered a final judgment on the merits.” United States v. Tohono

O’Odham Nation,

(2011) (citation and internal

quotation marks omitted). The doctrine “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,

(D.C.

Cir. 2009) (quoting NRDC v. Thomas,

, 1252 (D.C.

Cir. 1988)).

“Res judicata may be brought as an affirmative defense that

is generally pleaded in a defendant’s answer, but is also

properly brought in a pre-answer Rule 12(b)(6) motion when all

8 relevant facts are shown by the court’s own records, of which

the court takes notice.” Sczygelski v. U.S. Customs & Border

Patrol Agency,

(D.D.C. 2014) (citations

and internal quotation marks omitted), aff’d sub nom. Sczygelski

v. U.S. Customs & Border Prot.,

(D.C. Cir. 2015)

(per curiam). 3

B. Rule 12(b)(1)

On a motion to dismiss for lack of subject matter

jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(1), the plaintiff bears the burden of establishing subject

matter jurisdiction. See Lujan v. Defs. of Wildlife,

(1992); see also Fed. R. Civ. P. 8(a)(1). “Because

subject-matter jurisdiction focuses on the court’s power to hear

the plaintiff’s claim, a Rule 12(b)(1) motion imposes on the

court an affirmative obligation to ensure that it is acting

within the scope of its jurisdictional authority.” Grand Lodge

of Fraternal Order of Police v. Ashcroft,

(D.D.C. 2001). The Court “may consider materials outside the

pleadings in deciding whether to grant a motion to dismiss for

3 The Court takes judicial notice of the prior proceedings and the subsequent appeal. See, e.g., Covad Commc’ns Co. v. Bell Atlantic Corp.,

, 1222 (D.C. Cir. 2005) (permitting judicial notice of public records of other proceedings); Hemphill v. Kimberly–Clark Corp.,

(D.D.C. 2009) (“A court may take judicial notice of public records from other proceedings.”). 9 lack of jurisdiction[.]” Jerome Stevens Pharm., Inc. v. FDA,

(D.C. Cir. 2005).

III. Analysis

WMATA advances two primary arguments for dismissal. First,

WMATA contends that Mr. McMillan’s instant action is barred by

the doctrine of res judicata because it attempts to revive

claims of misconduct and employment discrimination that this

Court dismissed in McMillan I. Def.’s Mot. to Dismiss, ECF No.

6. at 1. Next, WMATA argues that Mr. McMillan’s “nonsensical

Complaint fails to state sufficient factual allegations to state

a claim for relief plausible on its face.” Def.’s Mem., ECF No.

6-1 at 4. Mr. McMillan responds that “[t]he Order obtained from

this Court on October 12, 2012 by WMATA for Summary Judgment, is

the basis – not the essence of the Plaintiff’s current Claim.”

Pl.’s Opp’n, ECF No. 10 at 5 (emphasis in original). Mr.

McMillan argues that WMATA’s motion to dismiss “fails to address

or controvert the allegations in the complaint.”

Mr.

McMillan contends that WMATA’s failure to conduct an inquiry

into his claims can be characterized as “willful blindness”

because WMATA “had express notice of the instant case,”

but

WMATA failed to “ascertain the facts in regard to the instant

case,” id. at 6. The Court addresses each argument, first

considering whether Mr. McMillan’s complaint fails to state a

claim upon which relief can be granted, and then considering

10 whether Mr. McMillan’s claims are barred by res judicata. The

Court concludes that Mr. McMillan’s complaint fails to state a

claim upon which relief can be granted, and that the doctrine of

res judicata bars this action.

A. Mr. McMillan’s Complaint Must Be Dismissed for Failure to State a Claim

Mr. McMillan brings the present action against WMATA,

alleging employment discrimination and misconduct by WMATA. See

Compl., ECF No. 1 at 1; see also Pl.’s Opp’n, ECF No. 10 at 5-6.

WMATA argues that this Court should dismiss Mr. McMillan’s

complaint because it fails to state a claim upon which relief

can be granted. Def.’s Mem., ECF No. 6-1 at 4. The Court agrees.

Liberally construing the complaint, Mr. McMillan appears to

allege that “the United States District Court discovery

apparatus” and “empirical evidence” from “the United States

Department of Justice investigative services” revealed

misconduct at WMATA, the EEOC, and the federal district court.

See Compl., ECF No. 1 at 1. These conclusory allegations are not

enough to meet the plausibility standard. 4 See, e.g., Twombly,

4 In his opposition brief, Mr. McMillan appears to assert a due process claim because he contends that WMATA’s alleged failure to investigate his case violates his due process rights under the Fifth and Fourteenth Amendments. See Pl.’s Opp’n, ECF No. 10 at 3, 6, 8-9. Mr. McMillan did not assert a due process claim in his complaint, see Compl., ECF No. 1 at 1. While “the pro se litigant may, in effect, supplement his [or her] complaint with the allegations included in his [or her] opposition[,] the pro se plaintiff must still plead factual matter that permits the 11

(“Factual allegations must be enough to raise a

right to relief above the speculative level . . . on the

assumption that all the allegations in the complaint are true

(even if doubtful in fact)[.]”); Iqbal,

(“A

pleading that offers labels and conclusions or a formulaic

recitation of the elements of a cause of action will not do.”

(citation and internal quotation marks omitted)). Mr. McMillan’s

complaint is devoid of any facts or circumstances that would

permit this Court to draw any inferences of the alleged

misconduct. See Compl., ECF No. 1 at 1.

Even when given the liberal construction afforded to pro se

pleadings, Mr. McMillan’s employment discrimination claim under

Title VII wholly fails to state a claim upon which relief can be

granted. See Fed. R. Civ. P. 12(b)(6). The Court therefore finds

that Mr. McMillan’s claims cannot withstand a motion to dismiss. 5

court to infer more than the mere possibility of misconduct.” Magowan v. Lowery,

(D.D.C. 2016) (citations and internal quotation marks omitted). To the extent that Mr. McMillan asserts a due process claim, the Court finds that Mr. McMillan has failed to plead facts that allow this Court to infer beyond the mere possibility of WMATA’s alleged misconduct. 5 On November 8, 2018, the Clerk of Court received Mr. McMillan’s “Motion for Default for Defendant’s Failure to Answer” and his Affidavit in Support of Default. See Pl.’s Aff. in Support of Default (“Pl.’s Aff.”), ECF No. 7 at 1-2. The Clerk of Court did not enter a default against WMATA. See generally docket of Civil Action No. 18-2362. The Court granted Mr. McMillan leave to file the motion and affidavit on November 16, 2018. WMATA filed its opposition brief on November 28, 2018. See Def.’s Opp’n to Pl.’s Mot. for Default, ECF No. 8 at 1. Mr. McMillan argues that he is 12 B. The Doctrine of Res Judicata Bars Mr. McMillan’s Complaint

The Court next considers whether Mr. McMillan’s complaint

is barred by the doctrine of res judicata. Under this doctrine,

“a subsequent lawsuit will be barred if there has been prior

litigation (1) involving the same claims or cause of action,

(2) between the same parties or their privies, and (3) there has

been a final, valid judgment on the merits, (4) by a court of

competent jurisdiction.” Smalls v. United States,

(D.C. Cir. 2006).

It is undisputed that all four prerequisites apply in this

case. The present action and McMillan I involve the same cause

of action because Mr. McMillan continues to challenge his

termination under Title VII. See Pl.’s Opp’n, ECF No. 10 (“[T]he

instant case is substantially derivative of the [first

action].”);

(stating that the McMillan I decision “is the

basis . . . of the Plaintiff’s current Claim.”). In 2010,

entitled to a default judgment because WMATA’s motion to dismiss was not filed within twenty-one days after being served with the summons and complaint. See Pl.’s Aff., ECF No. 7 at 1-2; see also Pl.’s Opp’n, ECF No. 10 at 5. “[U]nless the complaint states a claim upon which relief may be granted as to the defendant[ ] who [has] defaulted, default judgment is not justified.” Harris v. U.S. Dep’t of Justice,

, 136–37 (D.D.C. 2009). The Court therefore DENIES Mr. McMillan’s motion for default judgment because Mr. McMillan has failed to provide a “short and plain statement of the claim showing that [he] is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and Mr. McMillan’s complaint fails to state a claim upon which relief can be granted, see Fed. R. Civ. P. 12(b)(6). 13 Mr. McMillan brought a Title VII lawsuit against WMATA, see

Compl., McMillan I, Civil Action No. 10-1867, ECF No. 1 at 1,

and he brought this action under Title VII against WMATA in

2018, see Compl., ECF No. 1 at 1. In McMillan I, this Court

granted WMATA’s motion for summary judgment, which constitutes a

final judgment on the merits. See Prakash v. Am. Univ.,

(D.C. Cir. 1984) (“As a decision on the merits, a

summary judgment merges or bars the action for res judicata

purposes.” (footnote omitted)). There is no question that this

Court is a court of competent jurisdiction.

A final “judgment bars any further claim based on the same

‘nucleus of facts,’ for ‘it is the facts surrounding the

transaction or occurrence which operate to constitute the cause

of action, not the legal theory upon which a litigant relies.’”

Page v. United States,

(D.C. Cir. 1984)

(quoting Expert Elec., Inc. v. Levine,

, 1234 (2d

Cir. 1977)) (emphasis added). “In order to determine whether

factual events are part of the same transaction, a court must

‘determine[ ] pragmatically . . . whether the facts are related

in time, space, origin, or motivation, whether they form a

convenient trial unit, and whether their treatment as a unit

conforms to the parties’ expectations or business understanding

or usage.’” Sczygelski,

(quoting Stanton v.

D.C. Court of Appeals,

(D.C. Cir. 1997)).

14 The instant action concerns the same “nucleus of facts”

that this Court addressed in McMillan I because Mr. McMillan

challenges not only his termination in both actions, but also

WMATA’s alleged failure to investigate his other claims stemming

from his termination. Compare McMillan I,

(Mr. McMillan alleged “mismanagement,” “fraud, waste and abuse”

at WMATA), with Compl., ECF No. 1 at 1 (alleging “malfeasance”

at WMATA, the EECO, and the federal district court). Mr.

McMillan had the opportunity to litigate those claims against

the EEOC and the federal district court in McMillan I, but he

decided to base, in part, his lawsuit on WMATA’s alleged

mismanagement. The Court therefore finds that Mr. McMillan’s

present action is barred by the doctrine of res judicata because

his claims could have been—and some have already been—raised in

McMillan I. 6

Nothing in the attachments to Mr. McMillan’s complaint

alters this conclusion. See Compl., ECF No. 1-1 at 1-16. Mr.

6 To the extent Mr. McMillan asserts a fraud claim, see Pl.’s Opp’n, ECF No. 10 at 2-3, that claim is barred by res judicata because he asserted fraud allegations against WMATA in McMillan I. See

. Mr. McMillan appears to rely on Gabelli v. S.E.C.,

(2013), to suggest that WMATA has committed fraud. See Pl.’s Opp’n, ECF No. 10 at 2-3. In Gabelli, the Supreme Court held that the United States Securities and Exchange Commission (“SEC”) cannot seek civil penalties under

for a claim that accrued more than five years before the SEC filed the action.

. Gabelli, a case that applies to SEC civil-enforcement actions alleging securities fraud, has no bearing on this case. 15 McMillan attaches to his complaint certain e-mail

communications, letters, and court filings in McMillan I. See

In September 2018, Mr. McMillan sent an e-mail to WMATA,

expressing his intention to file a “follow-up civil action” to

McMillan I. Id. at 2. Ten days before Mr. McMillan filed this

action, he sent an e-mail to WMATA’s Board of Directors, stating

that “[c]onstructive notice is chargeable where-there has been

lack of due diligence or a design to abstain from inquiry to

avoid notice.” Id. at 1. He goes on to state that WMATA’s Board

of Directors has been “afforded the opportunity to inquire into

and deny the law on which the entitlement to make the claim is

based.” Id. To support his statements, Mr. McMillan cites non-

binding, New York state court decisions. Id. (citing Reed v.

Gannon,

(N.Y. 1872); Seymour v. Seymour,

(N.Y. App. Div. 1898); In re Di Marti,

(N.Y. Sup. Ct. 1911)). In his opposition brief, Mr. McMillan

relies on those same New York state court decisions and other

decisions to make the same “constructive notice” argument that

WMATA failed to examine the underlying facts of his claims.

Pl.’s Opp’n, ECF No. 10 at 6. 7

To the extent Mr. McMillan attempts to assert a new legal

7 Mr. McMillan’s cited cases are inapposite for the simple reason that WMATA does not dispute that it had notice of the lawsuits. See Pl.’s Opp’n, ECF No. 10 at 2-3, 6-8; see generally Def.’s Reply, ECF No. 11. 16 theory as the basis for the present action, such a “new” theory—

that WMATA had constructive notice of his claims and failed to

examine the facts of his case—could have been brought in

McMillan I. See Thunder v. U.S. Parole Comm’n,

(D.D.C. 2015) (Sullivan, J.) (“A party cannot escape

application of the doctrine by raising a different legal theory

or by seeking a different remedy in the new action that was

available to him in the prior action.”). Indeed, Mr. McMillan

has already claimed that WMATA ignored his claims in McMillan I.

See Po Kee Wong v. U.S. Sol. Gen.,

(D.D.C. 2012) (Sullivan, J.) (dismissing a pro se plaintiff’s

claims on grounds of res judicata because the plaintiff had his

opportunity to fully litigate the claims in a prior proceeding),

aff’d, No. 12-5102,

(D.C. Cir. Aug. 8, 2012).

While the law in this Circuit makes clear that “[r]es judicata

may not bar a later suit where the plaintiff was not aware of

its claim at the time of the first litigation[,]” Capitol Hill

Grp.,

, Mr. McMillan has failed to present any

new evidence that demonstrates that he was unaware of the claims

in his complaint in the instant action at the time of McMillan

I.

Having found that Mr. McMillan’s complaint is barred by the

doctrine of res judicata, the Court next addresses WMATA’s

argument for dismissal for lack of subject matter jurisdiction.

17 See Def.’s Mot. to Dismiss, ECF No. 6 at 1. Mr. McMillan has

failed to argue that he has met his burden of establishing that

the Court has subject matter jurisdiction. See generally Pl.’s

Opp’n, ECF No. 10. Instead, he appears to argue that this Court

must consider whether exercising personal jurisdiction over

WMATA would offend “traditional notions of fair play and

substantial justice.” Pl.’s Opp’n, ECF No. 10 at 2 (quoting

Int’l Shoe Co. v. Washington,

(1945)). The

Court need not address Mr. McMillan’s argument because WMATA

does not move to dismiss the complaint for lack of personal

jurisdiction. See Def.’s Mot. to Dismiss, ECF No. 6 at 1.

Because the Court has determined that Mr. McMillan fails to meet

the plausibility standard to survive a motion to dismiss under

Rule 12(b)(6), the Court need not reach the other basis for

dismissal—lack of subject matter jurisdiction—advanced by WMATA. 8

See Kaufman v. I.R.S.,

, 34 n.6 (D.D.C. 2011).

Furthermore, the D.C. Circuit has made clear that res judicata

does not deprive the Court of subject matter jurisdiction. E.g.,

8 WMATA’s reliance on Rizvi v. McClure,

(D.D.C. 2009) does not change this conclusion. See Def.’s Mem., ECF No. 6-1 at 3. The court’s observation in Rizvi—that “a motion for dismissal based on res judicata properly falls under Federal Rule of Civil Procedure 12(b)(1),” 597 F. Supp. 2d at 66—is inconsistent with D.C. Circuit precedent because res judicata does not affect the Court’s subject matter jurisdiction. See, e.g., Smalls,

; Kursar v. Transportation Sec. Admin.,

, 163 n.7 (D.D.C. 2010), aff’d,

(D.C. Cir. 2011). 18 Bailey v. Fulwood,

, 136 n.5 (D.C. Cir. 2015)

(“[N]either collateral estoppel nor res judicata deprives the

court of subject-matter jurisdiction.”); Smalls,

(“[T]he defense of res judicata, or claim preclusion, while

having a somewhat jurisdictional character, does not affect the

subject matter jurisdiction of the district court.”).

Finally, WMATA moves to dismiss this action with prejudice.

Def.’s Mem., ECF No. 6-1 at 1. The Court observes that “[t]he

standard for dismissing a complaint with prejudice is high:

‘dismissal with prejudice is warranted only when a trial court

determines that the allegation of other facts consistent with

the challenged pleading could not possibly cure the

deficiency.’” Belizan v. Hershon,

(D.C. Cir.

2006) (emphasis in original) (quoting Firestone v. Firestone,

(D.C. Cir. 1996). Because such a determination

has been made, the Court must dismiss this action with

prejudice.

IV. Conclusion

For the reasons set forth above, the Court GRANTS WMATA’s

motion to dismiss and DISMISSES WITH PREJUDICE Mr. McMillan’s

complaint. A separate Order accompanies this Memorandum Opinion.

SO ORDERED

Signed: Emmet G. Sullivan United States District Judge July 26, 2019

19