                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
SALEEM EL-AMIN,                     )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )               Civil Action No. 16-75 (ABJ)
                                    )
JOSEPH VIRGILIO,                    )
                                    )
                  Defendant.        )
____________________________________)


                                MEMORANDUM OPINION

       Plaintiff, appearing pro se, has sued his former attorney, Joseph Virgilio, for legal

malpractice and fraud. The claims are based on Virgilio’s representation of plaintiff in the

District of Columbia Court of Appeals (“DCCA”) on direct appeal of his state conviction for

armed robbery. The defendants, Joseph Virgilio, Esq. and Office of Attorney at Law, PLLC,

have moved to dismiss on several grounds, including res judicata. See Defs.’ Mot. to Dismiss

the Am. Compl. [Dkt. # 25]. Since the Superior Court of the District of Columbia previously

adjudicated the merits of the same claims against the same defendants, the court agrees that this

action is precluded. So the court will grant defendants’ motion without addressing their other

valid reasons for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See

Mot. at 1-2.

                                       BACKGROUND

1. Plaintiff’s Criminal Proceedings

       In May 2014, plaintiff was charged with armed robbery. In July 2014, the grand jury

returned a superseding indictment adding a second count of assault with a dangerous weapon
(“ADW”). See Defs.’ Mem. at 2 [Dkt. # 25-1] and Ex. 1. In September 2014, a jury trial was

held in D.C. Superior Court before Judge William M. Jackson. Plaintiff was represented by

appointed counsel, April Downs.        Id.   Based on the facts adduced at trial, the trial judge

determined that the assault with a dangerous weapon was simply a lesser included offense of

armed robbery. Therefore, he dismissed the separate ADW charge on September 16, 2014, and

declined defense counsel’s request to instruct the jury on that charge. See Am. Compl. and

Attachs. [Dkt. # 23]; Defs.’ Mem. at 2. Plaintiff was convicted of armed robbery and sentenced

on November 14, 2014, to a prison term of ten years. Defs.’ Mem. at 2.

       On April 2, 2015, the DCCA appointed Virgilio to represent plaintiff on direct appeal.

After unsuccessfully moving in the DCCA to withdraw as appellate counsel and to permit

plaintiff to proceed pro se, Virgilio filed an appellate brief on November 23, 2015. Id. at 2-3.

While the appeal was pending, Virgilio was served with plaintiff’s lawsuit filed in D.C. Superior

Court. Virgilio then filed a motion on January 21, 2016, to withdraw as appellate counsel, which

was granted on February 17, 2016. The DCCA appointed new counsel to represent plaintiff on

direct appeal. See Defs.’ Mem. at 3.

2. Plaintiff’s Prior Lawsuits

       Plaintiff filed two separate actions against the defendants in Superior Court. The first

complaint, filed on December 31, 2015, alleging fraud, was summarily dismissed on March 8,

2016. Defs.’ Mem. at 3; see Order [Dkt. # 25-2 at 30]. The second complaint, filed on January

4, 2016, and amended on January 15, 2016, to add Virgilio’s law office, alleged negligent

misrepresentation and fraud. Defs.’ Mem. at 3-4.

       The Superior Court resolved the merits of the latter action in a decision issued in April

2016. There, plaintiff alleged that Virgilio had “omitted a legal argument from the appellate



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brief he submitted on Plaintiff’s behalf” with respect to the alleged “acquittal” of the ADW

charge. El-Amin v. Virgilio, No. 2016 CA 00009 B, at 1 (D.C. Super. Ct. Apr. 5, 2016) [Dkt. #

25-2 at 32-38]. He contended that Virgilio had “erred by not addressing the judge’s decision not

to instruct the jury on the lesser included offense,” thereby “omitt[ing] a material fact that he had

a duty to disclose.” Id. at 2. Plaintiff sought “injunctive relief of incarceration” and $1.6 million

in monetary damages. Id.

       The Superior Court determined as to plaintiff’s “claims for fraudulent and negligent

misrepresentation or omission” that he had “failed to adequately plead reliance or damages . . . as

is required in a case pleading fraudulent misrepresentation.” Id. at 6. As to plaintiff’s assertion

“that his ‘fact of acquittal’ was omitted from the appellate brief prepared by Defendant Virgilio,”

the court determined that because plaintiff was convicted of armed robbery, his “claim that the

Defendants acted negligently by failing to include an acquittal which did not occur is without

merit.” Id. Finally, as to plaintiff’s claim that defendants had “falsely omitted or represented a

material fact, namely, Defendant Virgilio’s failure to include the trial court’s decision not to

instruct the jury on the lesser included charge of [ADW] among the grounds for [his] appeal,”

the court found that “Virgilio’s decisions regarding which legal arguments to put forth in

furtherance of Plaintiff’s appeal is [sic] a matter of discretion, which if made with ‘informed

professional judgment’ and ‘reasonable care and skill,’ cannot form the basis of a malpractice

claim . . . nor constitute professional negligence or fraud.” Id. at 6-7; see also Pl.’s App’x A

[Dkt. # 37 at 6] (Virgilio letter to plaintiff opining on the correctness of the trial judge’s

treatment of the ADW charge).

       The Superior Court concluded that plaintiff had failed to allege any facts to demonstrate

that Virgilio’s decisions “with respect to legal arguments fell below the applicable standard of



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care as required in a legal malpractice action.” Id. at 7. “That decision is currently on appeal.”

Defs.’ Mem. at 4.

                                     LEGAL STANDARD

       In ruling on a Rule 12(b)(6) motion to dismiss, the court “may consider only the facts

alleged in the complaint, any documents either attached to or incorporated in the complaint[,]

and matters of which . . . judicial notice” may be taken. EEOC v. St. Francis Xavier Parochial

School, 117 F.3d 621, 624 (D.C. Cir. 1997). Court proceedings are matters of which judicial

notice may be taken. See Jenson v. Huerta, 828 F. Supp. 2d 174, 179 (D.D.C. 2011), quoting

Lewis v. Drug Enforcement Admin., 777 F. Supp. 2d 151, 159 (D.D.C. 2011) (“The court may

take judicial notice of public records from other court proceedings.”); Akers v. Watts, 589 F.

Supp. 2d 12, 15 (D.D.C. 2008) (taking “judicial notice of the records of this Court and of other

federal courts”) (citations omitted). And “res judicata may be asserted in a motion to dismiss

when ‘all relevant facts are shown by the court’s own records, of which the court takes notice.’ ”

Nader v. Democratic Nat. Comm., 590 F. Supp. 2d 164, 169 (D.D.C. 2008), citing Hemphill v.

Kimberly-Clark Corp., 530 F. Supp. 2d 108, 111 (D.D.C. 2008) (other citation omitted).

                                          ANALYSIS

       Under the doctrine of res judicata, a claim previously adjudicated on the merits is

foreclosed from being relitigated in a new action. Specifically, “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, 471 F.3d 186, 192

(D.C. Cir. 2006). An “order is ‘final’ for res judicata purposes even though it is pending on

appeal.” Nader, 590 F. Supp. 2d at 169, citing Nat’l Post Office Mail Handlers v. Am. Postal



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Workers Union, 907 F.2d 190, 192 (D.C. Cir. 1990); Hunt v. Liberty Lobby, Inc., 707 F.2d 1493,

1497 (D.C. Cir. 1983).

       Res judicata bars not only claims that were actually brought in the prior action, but also

those claims or causes of action that “ ‘could have been raised in that action.’ ” Drake v. FAA,

291 F.3d 59, 66 (D.C. Cir. 2002) (emphasis in original), quoting Allen v. McCurry, 449 U.S. 90,

94 (1980); see also Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981) (“[P]arties to a

suit . . . may not relitigate any ground for relief which they already have had an opportunity to

litigate--even if they chose not to exploit that opportunity whether the initial judgment was

erroneous or not.”). Consequently, for res judicata purposes, a “ ‘cause of action is determined

by the factual nucleus, not the theory on which a plaintiff relies.’ ” Sheptock v. Fenty, 707 F.3d

326, 330 (D.C. Cir. 2013), quoting Faulkner v. GEICO, 618 A.2d 181, 183 (D.C. 1992). To

determine whether claims derive from the same nucleus of facts, the D.C. Circuit has adopted a

transactional, pragmatic approach. Smalls, 471 F.3d at 192, citing Stanton v. D.C. Court of

Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997). A court looks at “ ‘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.’ ” Stanton, 127 F.3d at 78, quoting

Restatement (Second) of Judgments § 24(2) (1982).

       The instant complaint arose from the same events that formed the basis of plaintiff’s

January 4, 2016 complaint adjudicated in Superior Court, and it names the same defendants.

Here, plaintiff reiterates that in September 2014, he was “acquitted” of assault with a dangerous

weapon “as a procedural dismissal,” and that the Superior Court “failed to submit assault w/

dangerous to jury for a verdict,” thereby “invading the Sixth Amendment right to a jury trial[.]”

Am. Compl. ¶¶ 1, 2. Plaintiff then contends that Virgilio violated professional standards “when



                                                5
he did not disclose [on direct appeal] that [Judge] William Jackson invad[ed] [his] sixth

amendment right to a jury when he removed the assault w/dangerous weapon from jury without a

verdict harming my rights under Declaration of Independence and Fifth Amendment due process

clause . . . of the constitution.” Id. ¶ 3. Plaintiff demands $1.5 million in monetary relief for

alleged “legal malpractice and fraud,” id. ¶ 4, and he adds “injunctive relief” in his opposition

[Dkt. # 37 at 4].

       The D.C. Superior Court exercised proper jurisdiction over plaintiff’s claims of

malpractice and fraud arising from defendant Virgilio’s performance as appellate counsel, and it

resolved those claims on the merits. Therefore, plaintiff cannot litigate his claims again.

                                             CONCLUSION

       Because the D.C. Superior Court has already adjudicated the merits of the underlying

claims against the named defendants, the court concludes that this action is barred by res

judicata. Consequently, plaintiff’s pending motions for partial judgment and his “incidental

motion” will be denied as moot. A separate order will issue.




                                                      AMY BERMAN JACKSON
                                                      United States District Judge
DATE: May 5, 2017




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