UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

)

ALLAN EARL LUCAS, JR., )
)

Plaintiff,' )

v. ) Civil Action No. 15-02059 (TFH)

)

DISTRICT OF COLUMBIA, )
)

Defendant. )

)

)

MEMORANDUM OPINION

 

Pending before the Court is defendant District of Columbia’s (the “District”) Motion to
Dismiss [ECF No. 7], requesting that the Court dismiss this action as duplicative of plaintiff
Allan Earl Lucas, Jr.’s lawsuit in Lucas v. District of Columbia, Civil Action No. 13-0()143
(TFH). Plaintiff has filed an opposition [ECF No. 8] and defendant a reply [ECF No. lO]. For
the reasons that folloW, the Court Will grant the District’s motion and dismiss this action Without
prejudice to plaintiff’ s pursuit of any claims against the District raised in any amended complaint

he may file in Lucas v. District of Columbia, Civil Action No. 13-00143 (TFH).

l. BACKGROUND
On September 30, 2015, in Lucas v. District ofColumbia, Civil Action No. 13-00143
(TFH), this Court dismissed Without prejudice plaintiffs First Amended Complaint against the
District for failure to exhaust administrative remedies pursuant to the Comprchensive Merit
Personnel Act (“CMPA”). See Lucas v. District ofColumbia, 133 F. Supp. 3d l76, 178 (D.D.C.
2015); see generally Jackson v. Distrz'ct ofColumbia, 254 F.3d 262, 270-71 (D.C. Cir. 20()1)

(“Because the [plaintiffs] failed to exhaust their administrative remedies, the district court should

have dismissed the complaint without prejudice, allowing the [plaintiffs] to refile once they have
completed the [administrative] grievance procedures.”). On November 17, 2015, plaintiff filed a
Motion to Reconsider and/or Motion for Leave to Amend.

On November 25, 2015, while his Motion to Reconsider and/or Motion for Leave to
Amend was pending in Lucas v. District ofColumbia, Civil Action No. 13~00143 (TFH),
plaintiff filed his Complaint in this action, raising the same legal claims and alleging
substantially the same facts as he did in the prior action-although he includes some additional
facts and more details that, according to him, demonstrate he has exhausted his administrative
remedies under the CMPA. Compare First Amended Complaint, Civil Action No. 13~00143
(TFH), ECF No. 34 with Complaint, Civil Action No. 15-02059 (TFH), ECF No. 1. The District
argues that this action should be dismissed because it is duplicative of plaintiffs prior action.

Def.’s Mem. in Supp. of Mot. to Dismiss (“Def.’s Mem.”) 2-3.

II. DISCUSSION

“‘[A] plaintiff has no right to maintain two separate actions involving the same subject
matter at the same time in the same court and against the same defendant.”’ Baira’ v. Gotbaum,
792 F.3d 166, 171 (D.C. Cir. 2015) (quoting Zerilli v. Evem'ng News Ass’n, 628 F.2d 217, 222
(D.C. Cir. 1980)). “To prevent duplicative pleadings, this [Court] has the ‘discretion to control
[its] docket[ ] by dismissing duplicative cases.”’ Sweeney v. Um‘tecl States Parole Comm ’n, _ F.
Supp. 3d M, Civil Action No. 16-00404 (JEB), 2016 WL 3922335, at *2 (D.D.C. July 18, 2016)
(quoting Clay)fon v. District ofColumbia, 36 F. Supp. 3d 91, 94 (D.D.C. 2014)); see also

Columbia Plaza Corp. v. Sec. Nat’l Bank, 525 F.2d 620, 626 (D.C. Cir. 1975) (“Sound judicial

administration counsels against separate proceedings, and the wasteful expenditure of energy and
money incidental to separate litigation of identical issues should be avoided.”).

Here, as noted above, plaintiff has filed a Complaint against the same party, raising the
same legal claims, and alleging substantially the same facts as he did in his First Amended
Complaint in Lucas v. District ofColumbia, Civil Action No. 13-00143 (TFH). Although in that
case the Court dismissed without prejudice plaintiff s First Amended Complaint, its dismissal
order was non-final. See Ciralsky v. C.I.A., 355 F.3d 661, 666 (D.C. Cir. 2004) (“[T]he
dismissal Without prejudice of a complaint [i]S not final . . . because the plaintiff is free to amend
his pleading and continue the litigation[,] . . . [whereas] dismissal without prejudice of an action
(or ‘case’), by contrast, . . . end[s] th[e] suit [and] . . . is final . . . .”); see also Murray v. Gilrnore,
406 F.3d 708, 712 (D.C. Cir. 2005) (“Under Ciralsky. . . , dismissal of an action without
prejudice is a final disposition but dismissal of a complaint without prejudice typically isn’t.”).
Moreover, Plaintiff has indicated his desire to continue the litigation in Lucas v. District of
Columbia, Civil Action No. 13-00143 (TFH), by filing a Motion to Reconsider and/or Motion
for Leave to Amend in that case_indeed, prior to filing his Complaint in this case.1

While plaintiff is “free to amend his pleading” in the prior action, Ciralsky, 355 F.3d at
666,2 he is not free to pursue a separate and virtually identical action “at the same time in the
same court and against the same defendant,” Bairal, 792 F.3d at 171. Therefore, dismissal of this

action as duplicative of the already-pending action in Lucas v. District ofColumbia, Civil Action

 

l In a Memorandum Opinion and Order issued in Lucas v. District ofColumbia, Civil Action No.
13-00143 (TFH), simultaneously with this decision, the Court denied the motion to reconsider
with prejudice and denied the motion for leave to amend without prejudice

2 Subject, of course, to the Court’s consideration of a properly filed motion requesting leave to
file an amended complaint pursuant to Federal Rule of Civil Procedure 15(a)(2) and Local Civil
Rule 15.1.

No. 13-00143 (TFH), is warranted Cf Sweeney, _ F. Supp. 3d at __, 2016 WL 3922335, at *2
(noting that “‘[w]here a plaintiff brings duplicative claims against the same defendant, . . . [t]he
[best] course is to dismiss the claims in the new case as duplicative of the already-pending
claims”’ (quoting Bowe-Connor v. McDonala’, Civil Action No. 15-00269 (KBJ), 2015 WL
807537, at *1 (D.D.C. Feb. 25, 2015)).

The Court notes that the District raises, for the first time in its reply memorandum, other
legal bases for dismissal In doing so, the District denies plaintiff the opportunity to respond to
its previously unraised arguments and disregards the structure of motions practice provided for in
the Federal Rules of Civil Procedure and in this Court’s Local Rules. Therefore, the Court has
not considered these arguments in rendering its decision on the District’s Motion to Dismiss.
See, e.g, Long v. Unz'tea' States, 604 F. Supp. 2d 119, 123 (D.D.C. 2009) (declining to consider
arguments raised for the first time in movant’s reply brief); see also Rollins Envtl. Servs. (NJ)
Inc. v. U.S. E.P.A., 937 F.2d 649, 652~53 n.2 (D.C. Cir. 1991) (“Issues may not be raised for the
first time in a reply brief.”); Demery v. Montgomery Cty., MD, 602 F. Supp. 2d 206, 212 n.4
(D.D.C. 2009) (“Because this argument was raised for the first time in [the movants’] reply brief,
it will riot be considered.”); Baloch v. Norton, 517 F. Supp. 2d 345, 348-49 n.2 (D.D.C. 2007)
(“If the movant raises arguments for the first time in his reply to the non-movant’s opposition,
the court [may] ignore those arguments in resolving the motion . . . .”), ajj”a’ sub nom. Baloch v.

Kempthorne, 550 F.3d 1191 (D.C. Cir. 2008).

III. CONCLUSION
For the foregoing reasons, the Court will grant the District’s Motion to Dismiss [ECF No.
7] and dismiss this action. The Court’s dismissal will be without prejudice to plaintiffs pursuit
of claims against the District raised in any amended complaint he may file in Lucas v. District of

Columbia, Civil Action No. 13-00143 (TFH). A separate Order accompanies this Memorandum

Opinion.

October § , 2016 _,,/Z¢" ; ` `W
Thomas F. zogan >
Senior United Stat ` ` t Judge

