                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


KWONG YUNG,

       Plaintiff,                                            Civ. No. 1:11-0857 (JMF)

       v.

INSTITUTIONAL TRADING
CORPORATION, et al.,

       Defendants.


                                     MEMORANDUM ORDER

       Now pending before the Court is Defendants’ Motion to Dismiss or In the Alternative, for

Summary Judgment [#47]. Defendants Institutional Trading Corporation and IT.com have

moved to dismiss this matter pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),

or in the alternative for summary judgment pursuant to Rule 56. [#47] at 1. Defendants’ Motion

for Summary Judgment will be granted. There is no genuine issue of material fact that (1) a

settlement agreement bars the claims asserted and (2) the statute of limitations has run as to these

claims. See Fed. R. Civ P. 56(c).1

       This case arises from the employment and termination of plaintiff. Notice of Removal

[#1] at 6. Plaintiff alleges he was employed by defendants from November 2005 through

December 12, 2006. Id. at 9.

       On September 28, 2007, plaintiff filed a complaint in state court in California alleging




       1
         The references to the Federal Rules of Civil Procedure and the D.C. Code are to the
electronic versions that appears in Westlaw or Lexis.
breach of contract, unpaid wages, conversion, and fraud. Defendants’ Memorandum in Support

of its Motion to Dismiss or in the Alternative, Summary Judgment [#48] at 2, [#48-1] at 4. He

named as defendants “ITC, IT.com, and Does 1 through 10.” [#48-1] at 2. Defendants removed

that case from California state court to federal court, and had the case transferred to this court.

Order Denying Motion to Remand; Granting Motion to Transfer; Denying Motion to Dismiss;

Denying Motion for Summary Judgment [#41] at 1).

       This court first concluded that Institutional Trading Company (“ITC”) never employed

plaintiff. Yung v. Institutional Trading Co., 693 F. Supp. 2d 70 (D.D.C. 2010). “Instead, . . ., all

of the evidence in this case indicates that [plaintiff] contracted and ultimately dealt only with

Codover2 and Defendant IT.com.” Id. at 75. The court therefore granted summary judgment to

ITC. Id. The court granted IT.com’s motion for summary judgment as to all counts except for

the breach of contract and conversion claims On July 6, 2010, the remaining parties to the

lawsuit, i.e. plaintiff and IT.com, entered into a settlement agreement including a mutual release

of all claims “that possibly exist, known and unknown,” in exchange for defendants’ promise to

pay plaintiff $11,559.20. [#48] at 3. Thereafter, the case was dismissed with prejudice. Id.

        Plaintiff contends that this case and the 2007 lawsuit do not share any defendants or

causes of action and therefore he is not bound by the terms of the settlement agreement, the

existence of which he also disputes. Rebuttal to Motion of Defendants’ Institutional Trading

Corporation and IT Discovery Inc,’s Motion to Dismiss or For Summary Judgment [#55] at 36.


       2
        In 1983 Mark Codover founded Institutional Trading Company and in 2005 created
IT.com, a start-up technology company based in Washington D.C. In staffing that company,
Cordover hired Yung to work as IT.com’s director of research. IT.com fired Yung in 2006.
Yung, 693 F. Supp. 2d at 72.


                                                  2
However, those distinctions are immaterial. In 2010, in the decision cited above, Judge Gwin

found that plaintiff was employed by IT.com, and not by Institutional Trading Company, the

predecessor to Institutional Trading Corporation. Yung, 693 F. Supp. 2d at 75. Judge Gwin’s

finding that plaintiff was employed by IT.com and not by Institutional Trading Company binds

plaintiff and prevents him from asserting any contrary contention. Surely, it is settled beyond all

question that “[w]hen an issue of fact is actually litigated and determined by a valid and final

judgement, and the determination is essential to the judgment, the determination is conclusive in

a subsequent action between the parties, whether on the same or a different claim.” Restatement

(Second) of Judgments § 27 (1982). It follows therefore that the only proper defendant in this

case is IT.com. ITC is not a proper party defendant to this action and the action against it must

be dismissed.3 The signed settlement agreement4 between IT.com and plaintiff bars “any and all

claims that possibly exist, known and unknown.” [#50-3]at 5. Summary judgment must

therefore be granted to IT.com as this case is barred by the terms of the settlement agreement.

        Additionally, as defendants correctly point out, all of plaintiff’s claims are barred by the

statute of limitations.

        The relevant statute of limitations for plaintiff’s claims as specified by District of

Columbia law are as follows:


        3
          The other defendant named in the docket is “IT Discovery, Inc.” There is no such
entity; “IT Discovery” is a software product created by IT.com that is advertised on its website,
www.it.com. See Declaration of Mark Codover [#50-3] at 3, ¶¶ 8, 9. Plaintiff cannot sue it any
more than he could sue Microsoft Word.
        4
         While defendants failed to attach the signed settlement agreement a and copy of the
signed and cashed check to their motion to dismiss, they attached them to Defendants’ Reply in
Support of Their Motion to Dismiss, or in the Alternative, Summary Judgment [#50] as Exhibit 3
[#50-3].

                                                   3
        Breach of Contract: 3 years;
        Misrepresentation (Fraud): 3 years;
        Wrongful Termination: 3 years;
        Interference and Blacklisting: 3 years;
        Defamation: 1 year.

D.C. Code § 12-301.

        According to his complaint, plaintiff’s termination occurred in 2006. It is clear that all

the operative dates for his claims of relief occurred more than three years prior to the filing of

this suit, and , all of these claims are time barred.

        Finally, the Court instructs plaintiff, who proceeds pro se, that if in fact the settlement

check bounced as he alleges, it is his right to move to reopen the 2007 lawsuit for the

enforcement of the terms of the settlement.

        Accordingly, it is, therefore, hereby,

        ORDERED that Defendants’ Motion to Dismiss or In the Alternative, Summary

Judgment [#47] is granted and plaintiff’s lawsuit is dismissed with prejudice. The Clerk shall

enter judgment in favor of the defendants.

        SO ORDERED.                                                   Digitally signed by John M.
                                                                      Facciola
                                                                      DN: c=US, st=DC, ou=District of
                                                                      Columbia,
                                                                      email=John_M._Facciola@dcd.us
                                                                      courts.gov, o=U.S. District Court,
                                                                      District of Columbia, cn=John M.
                                                                      Facciola
                                                                      Date: 2012.03.15 11:37:39 -04'00'
                                                 _____________________________________
                                                 JOHN M. FACCIOLA
                                                 UNITED STATES MAGISTRATE JUDGE




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