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Case 2:08-cv-03595-ILRL-ALC Document 98 Filed 01/19/10 Page 1 of 20




VERSUS NO: 08-3595



Before the Court is Plaintiffs’ Motion For Reconsideration of this Court’s decision to grant Defendants’ Motion for Judgment on the Pleadings or in the Alternative Partial Summary Judgment (Rec. Doc. No. 80). For reasons discussed during oral argument and for the following reasons, the Motion for Reconsideration (Rec. Doc. No. 80) is GRANTED, Plaintiffs Motion for Leave to file exhibits (Rec. Doc. No. 82) is GRANTED, and Defendants’ underlying Motion for Judgment on the Pleadings or in the Alternative Partial Summary Judgment (Rec. Doc. No. 80) is GRANTED dismissing all claims against the Defendants in this action. Plaintiff should consider seeking relief from prior dismissal of lawsuit from the appropriate court in view of recent evidentiary findings. The Motion for Bill of Costs is GRANTED and after adjustment IT IS ORDERED that Plaintiff pay Defendant $10,000 in costs and attorney fees.

This Court granted Defendant’s Motion for Judgment on the Pleadings or in the Alternative Partial Summary Judgment because Plaintiff failed to file an opposition or leave to continue the Case 2:08-cv-03595-ILRL-ALC Document 98 Filed 01/19/10 Page 2 of 20 hearing date in a timely manner and Plaintiff’s motion had merit.

Plaintiffs inform the Court in its motion for reconsideration they did oppose and tried to ask for leave for a Motion to Continue but it was marked deficient and by the time it was refiled this Court had ruled. However, this Court’s Order found that while Plaintiffs complained about their inability to depose key people and needed more time for discovery they failed to show diligence on their part by trying to seek judicial relief through a motion to compel, etc. (Rec. Doc. No. 79).

Plaintiffs were ordered to file a Motion for Reconsideration if any, within 30 days. Plaintiffs failed to comply with the Order (Rec. Doc. No. 77) and waited until the 31st day to file a motion for reconsideration. Defendants filed a Motion in Opposition (Rec. Doc. No. 84). In addition, Plaintiffs waited an additional two weeks past their allotted time to file attachments to the motion for reconsideration, and request for leave to attach exhibits to the Motion for Reconsideration (Rec. Doc. No.

82). Further, Defendants timely filed a Motion for costs incurred in connection with the motion, including attorneys fees in accordance with Federal Rules ofCivil Procedure 16, 8 (Rec.

Doc. No. 89). The Motion is opposed (Rec. Doc. No. 94).

Case 2:08-cv-03595-ILRL-ALC Document 98 Filed 01/19/10 Page 3 of 20

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Plaintiffs Bobby Matthews, Barbara McGee, Tina McGivney, and Judy Dowdell (Plaintiffs) have brought this suit against Defendant, International House of Pancakes, Inc., IHOP Franchising, LLC, IHOP Realty Corp., IHOP Properties, LLC (Collectively the IHOP Entities”), Jamal & Kamal, Inc. (“J&K”) and Kamal Sibh (“Sibh”), alleging violation of their civil rights and state torts regarding their employment at an IHOP restaurant in Convington, Louisiana. The restaurant is operated by Sbih through his company J&K and pursuant to a Franchise agreement with IHOP. Plaintiffs Matthews and McGee assert claims for race discrimination under 42 USC § 1981 and conspiracy under 42 USC § 1985, Plaintiffs McGee, McGivney and Dowdell assert a claim for Title VII sex discrimination, Dowdell asserts a claim for age discrimination under the ADEA, and all plaintiffs assert claims for state law torts of battery, intentional infliction of emotional distress, defamation and abuse of right.

On or about May 14, 2007, Bobby Matthews and Barbara McGee filed suit alleging violations of Title VII, 42 USC §§ 1981 and 1985; McGee alleged Title VII sex discrimination and harassment claims; both alleged other state law violations arising out of their employment (Herein after “IHOP I”). After service was attempted on all defendants, and after Defendants were defaulted, Defendants Jamal and Kamal and J&K filed Motions to Quash and Case 2:08-cv-03595-ILRL-ALC Document 98 Filed 01/19/10 Page 4 of 20 Dismiss. Both motions were granted, and Jamal and Kamal and J & K were dismissed without prejudice on January 23, 2008.

Plaintiffs therein continued to litigate against the remaining IHOP corporations. Neither Kamal Sbih nor the corporation Jamal

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judgment dismissing with prejudice the claims of Matthews and McGee against the IHOP entities was filed on January 23, 2009.

Matthews v. International House of Pancakes, Inc., 597 F.Supp.2d 663 (E.D.la. 1/23/09), Civil Action 072869, Rec. Doc. No. 105.

Subsequently, plaintiffs filed the complaint in this case on May 29, 2008 (Herein after “IHOP II”) which is essentially identical to the complaint in the prior suit. In the instant matter Matthews and McGee alleged violations of Title VII, 42 USC §§ 1981 and 1985; McGee and McGivney alleged Title VII sex discrimination and harassment claims; Judy Dowdell alleged violations of the Americans with Disabilities Act, following a finding of Discrimination by the EEOC; all Plaintiffs alleged

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only difference with the complaint in the prior suit are the addition of McGivney and Dowdell as plaintiffs, the removal of the Title VII race discrimination claim, and the addition of a claim for state law torts. Both complaints are centered on the allegation that plaintiffs were discriminated against during Case 2:08-cv-03595-ILRL-ALC Document 98 Filed 01/19/10 Page 5 of 20 their employment at the Convington, Louisiana IHOP restaurant by a former manager, Ahab Mohamed.

During the pendency of the instant action, Plaintiffs moved to consolidate the two actions. The Court in IHOP I denied consolidation, finding that the two suits "involved different parties and different claims." The 2007 action was between Matthews and McGee and the IHOP Defendants were later dismissed.

McGivney’s EEOC records show that on April 12, 2007 her attorney faxed to the EEOC a Charge Questionnaire, charging Party Sexual Harassment Questionnaire, and Supplemental Intake Questionnaire. The EEOC Case Log indicates that the EEOC interviewed McGivney with her attorney on August 28, 2007. The Case Log also indicates that McGivney’s Charge of Discrimination was “perfected” on October 4, 2007. The EEOC mailed a notice of right to sue to McGivney and her attorney on February 27, 2008.

Dowdell’s EEOC records show that she filed a perfected Charge of Discrimination on or about July 19, 2005. The EEOC mailed Dowdell and her attorney a notice of right to sue letter on February 19, 2008.

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A. Judgment on the Pleadings or Alternatively Partial Summary Judgment Standard Defendants moved for judgment on the pleadings pursuant to Rule 12(c), rather than for dismissal for failure to state a Case 2:08-cv-03595-ILRL-ALC Document 98 Filed 01/19/10 Page 6 of 20 claim under Rule 12(b)(6). However, the Fifth Circuit has recently noted that “Rule 12(b)(6) decisions appropriately guide the application of Rule 12(c) because the standards for deciding motions under both rules are the same.” Great Plains Trust Co.

v. Morgan Stanley Dean Witter, 313 F.3d 305, 313 n.8 (5th Cir.

2002). A motion for judgment on the pleadings is designed to dispose of cases where the material facts are not disputed, and a judgment on the merits of the claims can be rendered by examination of the substance of the pleadings. Id. For purposes of this motion, the Court accepts the well-pleaded facts as true, but it does not accept conclusory allegations or legal conclusions masquerading as factual conclusions as sufficient to defeat the motion. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2002);

Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995).

Summary judgment is proper if the pleadings, depositions, interrogatory answers, and admissions, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex Corp.

v. Catrett, 477 U.S. 317, 327, (1986). A genuine issue exists if the evidence would allow a reasonable jury to return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, (1986). Although the Court must consider the evidence Case 2:08-cv-03595-ILRL-ALC Document 98 Filed 01/19/10 Page 7 of 20 with all reasonable inferences in the light most favorable to the nonmoving party, the nonmovant must produce specific facts to demonstrate that a genuine issue exists for trial. Webb v.

Cardiothoracic Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998), overruled on other grounds by Burlington N. &

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beyond the pleadings and use affidavits, depositions, interrogatory responses, admissions, or other evidence to establish a genuine issue. Id. Accordingly, conclusory rebuttals of the pleadings are insufficient to avoid summary judgment. Travelers Ins. Co. v. Liljeberg Enter., Inc. 7 F.3d 1203, 1207 (5th Cir. 1993).

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In Nilsen v. City of Moss Point, Mississippi, 701 F.2d 556 (5th Cir.1983), cert. denied 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137, reh. denied 423 U.S. 1026, 96 S.Ct. 470, 46 L.Ed.2d 400 (1975), plaintiff filed four (4) successive suits against the City of Moss Point claiming that the City refused to hire her as a fire fighter because of her sex. The first three suits were brought pursuant to Title VII of the Civil Rights Act. Id.

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second and third suits were consolidated and decided in favor of the City by summary judgment on the grounds that plaintiff failed to meet the timely filing requirements of Title VII. Id. After Case 2:08-cv-03595-ILRL-ALC Document 98 Filed 01/19/10 Page 8 of 20 an unsuccessful attempt to amend her consolidated action to add a 42 U.S.C. § 1983 claim, plaintiff appealed the ruling of the district court to the Fifth Circuit Court of Appeals. Id. The Fifth Circuit affirmed the lower court's granting of summary judgment as well as the court's denial of plaintiff's proposed amendment in the consolidated cases. Id. Plaintiff thereafter filed her fourth suit advancing an additional theory for recovery under § 1983. Id. The district court dismissed the action on the grounds that the judgment in the consolidated cases barred the fourth action. Id. Affirming the district court's ruling, the Fifth Circuit delineated the standards for the application of

res judicata:

The test to be applied is settled in our circuit: “For a prior judgment to bar action on the basis of res judicata, the parties must be identical in both suits, the prior judgment must have been rendered by a court of competent jurisdiction, there must have been a final judgment on the merits and the same cause of action must be involved in both

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Stevenson v. International Paper Co., 516 F.2d 103, 108 (5th Cir.

1975), citing Nilsen, 701 F.2d at 559.

Inasmuch as the last prong of the test was at issue in Nilsen, the Fifth Circuit provided guidance for the determination of what constituted the same cause of action: “This Court has Case 2:08-cv-03595-ILRL-ALC Document 98 Filed 01/19/10 Page 9 of 20 recognized that the principal test for comparing causes of action is whether the primary right and duty or wrong are the same in each action.” Stevenson v. International Paper Co., 516 F.2d 103, 109 (5th Cir.1975), Kemp v. Birmingham News Co., 608 F.2d 1049, 1052 (5th Cir.1979).

In addition, it is black-letter law that res judicata, by contrast to narrower doctrines of issue preclusion, bars all claims that were or could have been advanced in support of the cause of action on the occasion of its former adjudication. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). And it is equally settled that one who has a choice of more than one remedy for a given wrong, may not assert them serially, in successive action but must advance all at once. Id.

It is undisputed that the judgment in IHOP I was rendered by a court of competent jurisdiction. Nor can it be disputed that the Court’s granting of summary judgment for and subsequent dismissal in IHOP I was a judgment on the merits. See Federated Department Stores, 452 U.S. 394, 399, n. 3, 101 S.Ct. 2424, 2428, n. 3, 69 L.Ed.2d 103 (1981) (dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is judgment on the merits). The time for appealing the judgment under FRAP 4 has long passed. Thus, the element that the judgment be final and on the merits is satisfied. (IHOP I, Civil Action Number 07Rec. Doc. No. 105). The Court is faced with the dispositive Case 2:08-cv-03595-ILRL-ALC Document 98 Filed 01/19/10 Page 10 of 20 issues of whether the parties are identical in IHOP I and IHOP II and whether under the Nilsen tests, IHOP I and IHOP II involved the same cause of action or whether IHOP II could have been brought in support of the cause of action then pending before the Court in IHOP I. There is no objection that the former action includes parties not joined in the present action or vice versa.

However, so long as the judgment is rendered on the merits, the cause of the action is the same and the party against whom the doctrine is asserted was a party to the former litigation Res Judicata operates to bar a subsequent action against parties to a prior action. Robinson v. The National Cash Register Company, 808 F.2d 1119, 1131 (5th Cir. 1987)(naming additional plaintiff and defendant in second suit irrelevant); See also Shields v.

Allstate Insurance Company, 2008 WL 3884326 *2 (E.D. La.

2008)(Plaintiff cannot, merely by adding parties, diminish the effect of a prior suit against parties with whom the plaintiff has litigated issues to final judgment). Plaintiffs do not address this key point.

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