United States District Court, D. Nevada
ORDER GRANTING MOTION TO DISMISS (Dkt. No. 5)
ANDREW P. GORDON, District Judge.
Defendants Argosy University Education Management, LLC, Education Management Holdings LLC, Education Management Corporation, Argosy Education Group, Inc., incorrectly named as "Argosy University of Argosy Education Group, Inc., " and its affiliates and divisions including properties located in Orange County and Santa Monica (collectively, "Defendants") filed a motion to dismiss. (Dkt. #5.) For the reasons discussed below, the motion is granted.
Plaintiff Piange Jackson alleges that Defendants discriminated against her by assigning her two failing grades in an advanced writing class because of her race. Her claims are based on two alleged statements of the instructors who assigned her failing grades, in which the instructors expressed that Plaintiff's poor writing skills are a result of her race. Plaintiff's complaint asserts discrimination under 42 U.S.C. § 1981 and Title VI of the Civil Rights Act of 1964 and includes various state law claims. (Dkt. # 1.)
However, over a year earlier, Plaintiff filed an action against Defendants based on identical factual allegations ("First Action"). See Compl. at 3-6, Jackson v. Argosy Univ., On-line Division, No. 2:12-cv-02091-APG-NJK (D. Nev. Dec. 7, 2012), Doc. # 1. In the First Action, I dismissed several defendants without prejudice due to Plaintiff's failure to effectuate service. See Order of Dismissal, id. (Dec. 11, 2013), Doc. # 16. I then granted Defendant's motion to dismiss for failure to state a claim and dismissed Plaintiff's complaint without prejudice. See Order, id. (Jan. 27, 2014), Doc. # 17. Finally, when Plaintiff failed to file an amendment within the time allotted, I dismissed the case with prejudice. See Order, id. (Mar. 11, 2014), Doc. # 18. However, on January 29, 2014, while the First Lawsuit was still pending, Plaintiff filed this separate action.
As the First Action has now been determined, the present action is barred by the doctrine of res judicata. The doctrine of res judicata applies whenever there is "(1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between parties." W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997). "The central criterion in determining whether there is an identity of claims between the first and second adjudications is whether the two suits arise out of the same transactional nucleus of facts.'" Frank v. United Airlines, Inc., 216 F.3d 845, 851 (9th Cir. 2000). Thus, an identity of claims encompasses "all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties." Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 714 (9th Cir. 2001) (quoting Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998)). Additionally, unless specified otherwise, the dismissal of claims for the failure of a party to comply with a court order "operates as an adjudication on the merits." Fed.R.Civ.P. 41(b). Thus, involuntary dismissal of a party's claims generally constitutes a final judgment on the merits for purposes of res judicata. Owens, 244 F.3d at 714.
Despite Plaintiff's contentions to the contrary, all three elements of res judicata are evident in Plaintiff's two actions. First, both actions are based on Plaintiff's receipt of failing grades and her allegations that the instructors assigned her failing grades because of her race. Although the instant complaint includes some supplemental information and the listed causes of action are technically different, the main allegations-including the statements made by the instructors to Plaintiff-are identical, and any of the later complaint's causes of action could have been made in the first complaint. Second, because I dismissed with prejudice Plaintiff's First Action for failure to file an amended complaint by the stated deadline, the dismissal operates as an adjudication on the merits for res judicata purposes. Finally, there is no dispute that the actions involve identical parties. Thus, res judicata is applicable and Plaintiff's action is barred.
I am not persuaded by Plaintiff's arguments that I should ignore the doctrine of res judicata because Plaintiff was unrepresented in the First Action. Although Plaintiff may have filed the action pro se, it is apparent from Plaintiff's Supplement to her Opposition (Dkt. # 8) that Plaintiff retained counsel after I had dismissed certain parties without prejudice for failure to serve. It is also apparent that Plaintiff and her counsel were aware of the dismissal of the first complaint and the corresponding deadline for filing an amended complaint. Thus, I can only conclude that Plaintiff chose to file a separate, redundant action while represented. Plaintiff may not escape the consequences of that act simply because the first complaint was filed pro se.
Further, Defendants' failure to move to consolidate the actions does not constitute a waiver of their right to assert res judicata. Plaintiff's attempt to abandon the prosecution of one action and simply "start over" by filing another is not an acceptable means of litigation. Although Defendants were obligated to inform me of the related action under Local Rule 7-2.1, that obligation is equally applicable to Plaintiff. Defendants' failure to comply with its obligation does not excuse Plaintiff's own neglect. Defendants properly asserted the res judicata defense once the dismissal of the First Action had become final.
IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss is GRANTED. Plaintiff's complaint is dismissed with prejudice and the Clerk of the ...