IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TROY TUCKER, :

:

Plaintiff, :

:

v. : CIVIL ACTION

: NO. 2:03-CV-05015-JP

MERCK & CO., INC., :

:

Defendant. :

ORDER

AND NOW, this ____ day of _____________ 2003, upon consideration of Merck

& Co., Inc.’s Motion to Dismiss Plaintiff’s Complaint, its supporting Memorandum of Law, and

Plaintiff’s response thereto, it is hereby ORDERED that said Motion is GRANTED and

Plaintiff’s Complaint is hereby DISMISSED with prejudice.

___________________________

J.

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 1 of 13
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TROY TUCKER, :

:

Plaintiff, :

:

v. : CIVIL ACTION

: NO. 2:03-CV-05015-JP

MERCK & CO., INC., :

:

Defendant. :

DEFENDANT MERCK & CO., INC.’S

MOTION TO DISMISS PLAINTIFF’S COMPLAINT

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Merck & Co.,

Inc. (“Merck”) moves for dismissal of Plaintiff Troy Tucker’s (“Plaintiff”) Complaint. The

specific grounds for this motion are as follows:

1. On April 25, 2002, Plaintiff filed a complaint against Merck, alleging that

Merck had defamed him and invaded his privacy. Donna M. Tucker and Troy Tucker v. Merck

& Co., Inc., Civ. A. No. 02-2421 (E.D. Pa. filed Apr. 25, 2002) (the “prior action”).

2. By Order dated May 2, 2003, Chief Judge Giles granted Merck’s Motion

for Summary Judgment as to Plaintiff’s claims in the prior action.

3. On or about September 5, 2003, Plaintiff filed this action (the “instant

action”) against Merck under 42 U.S.C. § 1981 (“Section 1981”). Plaintiff’s allegations in

Paragraphs 7-9 of his Complaint in the instant action are nearly identical to his allegations in the

prior action.

4. Plaintiff could have asserted a Section 1981 claim in the prior action, but

failed to do so. Therefore, Plaintiff is barred by the claim preclusion doctrine from relying on

the allegations in Paragraphs 7-9 to support his Section 1981 claim.

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 2 of 13
2

5. Furthermore, if Plaintiff had asserted his Section 1981 claim in the prior

action—which he was required to do pursuant to the claim preclusion doctrine—he would have

also been required to assert all allegations that supported his Section 1981 claim. Therefore, all

of Plaintiff’s allegations in the instant action are barred by the claim preclusion doctrine because

Plaintiff has asserted them to support his Section 1981 claim.

WHEREFORE, for the reasons stated above and the reasons contained in the

accompanying Memorandum of Law, this Court should dismiss Plaintiff Troy Tucker’s

Complaint.

Respectfully submitted,

________________________________

JUDITH E. HARRIS (I.D. No. 02358)

DONNA M. ORZELL (I.D. No. 87831)

MORGAN, LEWIS & BOCKIUS LLP

1701 Market Street

Philadelphia, PA 19103

(215) 963-5028/5574

Attorneys for Defendant

Merck & Co., Inc.

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 3 of 13
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TROY TUCKER, :

:

Plaintiff, :

:

v. : CIVIL ACTION

: NO. 2:03-CV-05015-JP

MERCK & CO., INC., :

:

Defendant. :

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT MERCK & CO., INC.’S

MOTION TO DISMISS PLAINTIFF’S COMPLAINT

I. INTRODUCTION

This action (the “instant action”) arises out of Plaintiff Troy Tucker’s (“Plaintiff”)

employment with Merck & Co., Inc. (“Merck”). Plaintiff alleges that Merck violated the Civil

Rights Act of 1866, 42 U.S.C. § 1981 (“Section 1981”) by discriminating against him because of

his race and by retaliating against him. (Compl. at ¶¶ 1, 28-29). Merck asserts that under the

claim preclusion doctrine, Plaintiff’s Section 1981 claim should be dismissed because the claim

should have been raised, if at all, in Plaintiff’s prior action against Merck (the “prior action”).

II. STATEMENT OF ALLEGED FACTS1

Plaintiff is an African-American man who is currently employed by Merck as a

Contract Analyst in Merck’s United States Human Health division. (Compl. at ¶¶ 3, 5). Plaintiff

alleges that Merck discriminated against him on the basis of his race and retaliated against him in

violation of Section 1981. (Compl. at ¶¶ 28-29). Plaintiff’s Complaint includes allegations

 

1 Merck disagrees with many of the facts alleged in the Complaint, but accepts them, as it

must, solely for purposes of this Motion. Fed. R. Civ. P. 12(b)(6).

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 4 of 13
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regarding an investigation Merck conducted to determine whether Plaintiff had violated Merck’s

conflict of interest policy relating to his wife’s dual employment with Merck and Bristol-Myers

Squibb Company. (Compl. at ¶¶ 6-9). Plaintiff asserted nearly identical allegations in his prior

action against Merck.

III. ARGUMENT

A. Motion To Dismiss Standard.

In ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), this Court must accept the factual allegations in the Complaint as true and view them in

the light most favorable to the Plaintiff. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir.

1991). The Court need not, however, accept Plaintiff’s legal conclusions or unwarranted factual

inferences. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). If it appears

from the face of the Complaint that the Plaintiff can prove no set of facts which would entitle

him to relief, the Court should dismiss the Complaint. Hishon v. King & Spalding, 467 U.S. 69,

73 (1984). Indeed, the purpose of Rule 12(b)(6) is to “streamline litigation by dispensing with

needless discovery and factfinding.” Neitzke v. Williams, 490 U.S. 319, 326-28 (1989).

B. Plaintiff’s Section 1981 Claim Is Barred Under The Claim Preclusion 

Doctrine. 

When a plaintiff could have asserted a claim in a prior litigation, the plaintiff is

precluded from asserting that claim later under the claim preclusion doctrine. Morris v.

Scardelletti, Civ. A. No. 94-3557, 1994 WL 675461, at *3 (E.D. Pa. Nov. 23, 1994) (“Claims

preclusion, formerly referred to as res judicata, gives dispositive effect to a prior judgment if a

particular issue, although not litigated, could have been raised in an earlier proceeding.”)

(emphasis added). The claim preclusion doctrine “promotes finality, certainty and judicial

efficiency by barring relitigation of claims.” Inofast Mfg., Inc. v. Bardsley, 103 F. Supp. 2d 847,

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 5 of 13
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849 (E.D. Pa. 2000), aff’d, 265 F.3d 1055 (3d Cir. 2001). The doctrine “‘reduce[s] unnecessary

litigation and foster[s] reliance on adjudication.’” Switlik v. Hardwicke Co., Inc., 651 F.2d 852,

859 (3d Cir.) (quoting Allen v. McCurry, 449 U.S. 90, 95-96 (1980)), cert. denied, 454 U.S.

1064 (1981). The claim preclusion doctrine applies where there has been:

(1) a judgment on the merits in a prior suit involving;

(2) the same parties or their privies; and

(3) a subsequent suit based on the same causes of action.

Inofast, 103 F. Supp. 2d at 849 (citing African Int’l Bank v. Epstein, 10 F.3d 168, 171 (3d Cir.

1993)). In this case, all three of these factors apply to Plaintiff’s Section 1981 claim.

1. There Was A Final Judgment On The Merits.

On May 2, 2003, Chief Judge Giles granted summary judgment in favor of Merck

in the prior action, finding that Merck had neither defamed Plaintiff nor invaded his privacy. It

is well-established that an entry of summary judgment is a final judgment for purposes of claim

preclusion. Hubicki v. ACF Indus., Inc., 484 F.2d 519, 524 (3d Cir. 1973) (“[T]he law is clear

that summary judgment is a final judgment on the merits sufficient to raise the defense of res

judicata in a subsequent action between the parties.”); Berwind Corp. v. Apfel, 94 F. Supp. 2d

597, 609 (E.D. Pa. 2000) (holding that grant of summary judgment in prior federal action was

final judgment on the merits for claim preclusion purposes). Therefore, the first factor has been

met.

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 6 of 13
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2. The Prior Lawsuit Involved The Same Parties.

Troy Tucker, the Plaintiff in this case, was also a plaintiff in the prior action

against Merck. Therefore, the same parties in the instant action were also parties in the prior

action, and the second factor has been met.

3. The Instant Lawsuit Is Based On The Same Cause Of Action As The 

Prior Lawsuit.

a. Plaintiff’s Complaint Includes Allegations That Are Nearly 

Identical To Plaintiff’s Allegations In The Prior Action. 

Paragraphs 7-9 of the Complaint contain allegations that are nearly identical to

those Plaintiff asserted in the prior action. The fact that Plaintiff asserted defamation and

invasion of privacy claims in the prior action, and is now asserting a Section 1981 claim, is of no

consequence. The requirement that the subsequent suit be based on the same cause of action as

the prior suit does not require that the subsequent suit involve the same legal claims as the prior

suit. Even if two lawsuits are based on different claims, claim preclusion still applies if the

underlying events giving rise to the claims are similar. Gen. Elec. Co. v. Deutz Ag, 270 F.3d

144, 158 (3d Cir. 2001) (“The determination of whether two suits are based on the same cause of

action turns on the essential similarity of the underlying events giving rise to the various legal

claims.”). See, e.g., W. Sims v. Mack Trucks, Inc., 463 F. Supp. 1068, 1070 (E.D. Pa. 1979)

(“Thus, although the underlying legal theories are different, the trade secrets and unfair

competition claims constitute a single cause of action . . . .”); see also United States v. Athlone

Indus., Inc., 746 F.2d 977, 984 (3d Cir. 1984) (“We are thus in keeping with ‘[t]he present

trend . . . in the direction of requiring that a plaintiff present in one suit all the claims for relief

that he may have arising out of the same transaction or occurrence.’”) (citing Moore’s Federal

Practice ¶ 0.410[1], at 359 (2d ed. 1983)).

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 7 of 13
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In this case, it is clear that Plaintiff cannot rely on the allegations in Paragraphs 7-

9 to support his Section 1981 claim. The underlying events in the instant action and the prior

action are more than similar. Paragraphs 7 and 8 contain nearly verbatim recitations of the

allegations Plaintiff made in Paragraph 11 of the complaint in the prior action.

In Paragraph 11 of Plaintiff’s complaint in the prior action, Plaintiff alleged:

Shortly after April 25, 2001, a currently unknown Merck employee

contacted Reagan Hull, Mr. Tucker’s supervisor, to inform him

that Ms. Tucker’s employment with Merck had been terminated.

Shortly thereafter, Mr. Tucker was summoned to a meeting by

Merck’s Ombudsman, Maxine Miller, who stated that Merck

Human Resources Department/Management had accused him of

violating Merck’s conflict of interest policy relating to Ms.

Tucker’s employment with BMS. Ms. Miller then proceeded to

repeatedly question Mr. Tucker regarding the intimate details of

his home and married life. At Ms. Miller’s direction, and in a

deliberate effort to damage Mr. Tucker’s reputation and negatively

affect his career opportunities at Merck, Mr. Tucker’s supervisor,

Randall Mattison, placed a letter in Mr. Tucker’s personnel file

that essentially accused him of knowingly violating Merck’s

conflict of interest policy.

See Complaint filed in Donna M. Tucker and Troy Tucker v. Merck & Co., Inc., Civ. A. No. 02-

2421 (E.D. Pa. filed Apr. 25, 2002), ¶ 11, attached hereto as Exhibit A. This allegation is nearly

identical to Plaintiff’s allegations in Paragraphs 7 and 8 of his Complaint in the instant action:

Shortly after April 25, 2001, a Merck employee contacted Reagan

Hull, Mr. Tucker’s supervisor, to inform him that Ms. Tucker had

been fired. Soon thereafter, Mr. Tucker was summoned to a

meeting by Merck’s Ombudsman, Maxine Miller, who stated that

Merck’s Human Resources Department/Management had accused

him of violating Merck’s conflict of interest policy relating to Ms.

Tucker’s alleged dual employment.

See Plaintiff’s Compl. at ¶ 7.

Thereafter, Ms. Miller “investigated” the accusation against Mr.

Tucker, and in so doing repeatedly questioned him about the

intimate details of his home and married life.

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 8 of 13
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Id. at ¶ 8. In addition, in Paragraph 9 of his Complaint in the instant action, Plaintiff alleges that

“Ms. Miller’s ‘investigation’ of the accusation against Mr. Tucker and the resolution thereof

damaged Mr. Tucker’s reputation and negatively affected his career opportunities at Merck.” Id.

at ¶ 9. This allegation clearly grows out of Plaintiff’s allegations in Paragraphs 7 and 8 of the

Complaint. 

Thus, it is clear that Plaintiff had every opportunity to assert a Section 1981 claim

in the prior action with regard to these factual allegations, but failed to do so. Therefore,

Plaintiff cannot now rely on these factual allegations as a basis for his Section 1981 claim in the

instant action.

b. The Claim Preclusion Doctrine Also Applies To The 

Remaining Allegations In The Instant Action. 

As explained above, it is clear that Plaintiff was obligated to include a Section

1981 claim, if any, in his prior complaint. Furthermore, if Plaintiff had included his Section

1981 claim in the prior action, he would have been required to include any allegations that

supported the Section 1981 claim. Williams v. City of Allentown, 25 F. Supp. 2d 599, 603 (E.D.

Pa. 1998) (“All facts, allegations, and legal theories which support a particular claim, as well as

all possible remedies and defenses, must be presented in one action or are lost.”) (citing 18

Moore's Federal Practice § 131.01(3d ed. 1998)); Morris, 1994 WL 675461, at *3 (“Claims

preclusion, formerly referred to as res judicata, gives dispositive effect to a prior judgment if a

particular issue, although not litigated, could have been raised in an earlier proceeding.”)

(emphasis added). Therefore, all of Plaintiff’s allegations in the instant action should be barred

because Plaintiff has asserted them all in support of his Section 1981 claim, which he should

have raised in the prior action.

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 9 of 13
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The fact that some of the events Plaintiff alleges in the instant Complaint occurred

after the filing of his prior complaint is inconsequential. Plaintiffs have an obligation to amend

their complaints to add allegations or claims even after a lawsuit is filed. See Bieg v. Hovnanian

Enters., Inc., No. CIV. A 98-5528, 1999 WL 1018578, at *3 (E.D. Pa. Nov. 9, 1999) (“[R]es

judicata bars any . . . claims that a litigant could have asserted in a prior action including by way

of an amended complaint.”). Similarly, in Churchill v. Star Enters., the United States Court of

Appeals for the Third Circuit held that the plaintiff was precluded from bringing an action under

the Americans with Disabilities Act (“ADA”) and Pennsylvania Human Relations Act (“PHRA”)

when she could have consolidated those claims with a prior action after the complaint had been

filed, but before the prior action went to trial. Churchill v. Star Enters., 183 F.3d 184, 190-92

(3d Cir. 1999). The Churchill plaintiff was a manager of a convenience store who was diagnosed

with cancer while she was employed by the defendant. Id. at 187. During her employment, the

plaintiff made several requests for accommodations of her disability, all of which her employer

allegedly ignored. Id. The plaintiff also unsuccessfully sought to take leave provided by the

Family and Medical Leave Act (“FMLA”). Id. Her employer ultimately discharged her,

allegedly because of her claimed disability and/or her request for leave. Id.

Shortly after her discharge, the plaintiff initiated an action in court in which she

asserted that her employer had violated the FMLA and committed various common law torts. Id.

She also concurrently filed administrative charges with the Pennsylvania Human Relation

Commission (“PHRC”) and the Equal Employment Opportunity Commission (“EEOC”),

alleging that her discharge was based on her disability, allegedly in violation of the ADA and the

PHRA. Id. at 188-89. Approximately two months before her FMLA claim proceeded to trial,

the PHRC discontinued its investigation and informed the plaintiff of her right to sue. Id. at 189.

The plaintiff proceeded to trial on her FMLA claim and recovered minimal damages. Id. at 188.

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 10 of 13
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Approximately two months after the FMLA trial, the plaintiff received a notice of right to sue

from the EEOC and then filed a second action claiming that her discharge violated the ADA and

the PHRA, the subject of her administrative charges. Id. at 189.

The Churchill court, however, held that the disability claims contained in the

plaintiff’s second action were barred by the claim preclusion doctrine because the plaintiff had

failed to take reasonable steps to present all of her claims in a single action. Id. at 191. The

court stated:

[the employee] should have moved to consolidate

[the FMLA and ADA / PHRA actions] for they

advanced the same cause of action. [The employee]

could have filed both the PHRA and ADA claims

presented in [the second case] in time to join them

with her FMLA claim in [the first case]. In the case

of the PHRA claim, no special steps were needed to

preserve that claim and join it to the FMLA action

[because] prior to the start of the trial in [the first

case], [the plaintiff] knew that the PHRC had

dismissed her PHRA complaint, and accordingly

she could have brought an action on that claim

about three months before [the first case] went to

trial.

As for the ADA claim, [the plaintiff] could have

requested a right to sue letter [from the EEOC]...

on August 25, 1997, well before the [first] trial ...

[The plaintiff] did not request a right to sue letter,

instead waiting for the EEOC to issue it. Thus, she

“sat on her rights” when she could have attempted

to join the ADA claim to the FMLA claim in

consolidated litigation.

Id. at 191 (underline added, bold in original). The plaintiff’s delay barred her second action on

claim preclusion grounds. The Court warned: “Attorneys should organize litigation that they are

pursuing to avoid claim preclusion.” Id. at 191.

The most recent event Plaintiff alleges in his Complaint occurred in March 2003,

two months before Chief Judge Giles granted Merck’s Motion for Summary Judgment. Thus,

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 11 of 13
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Plaintiff was aware of all of the events alleged in the instant Complaint well before the prior

action was dismissed. However, Plaintiff chose to take no action to consolidate his claims, as he

was obligated to do under Churchill and Bieg. Therefore, the instant action should be dismissed.

IV. CONCLUSION

For these reasons, Merck respectfully requests that this Court grant its Motion to Dismiss

Plaintiff’s Complaint.

Respectfully submitted,

________________________________

JUDITH E. HARRIS (I.D. No. 02358)

DONNA M. ORZELL (I.D. No. 87831)

MORGAN, LEWIS & BOCKIUS LLP

1701 Market Street

Philadelphia, PA 19103

(215) 963-5028/5574

Attorneys for Defendant

Merck & Co., Inc.

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 12 of 13
CERTIFICATE OF SERVICE

I, Donna M. Orzell, hereby certify that a true and correct copy of Defendant

Merck & Co., Inc.’s Motion to Dismiss Plaintiff’s Complaint, and accompanying Memorandum

of Law, were served by hand delivery this 20th day of October 2003 upon:

Robert T. Vance, Jr., Esquire

Suite 700

1616 Walnut Street

Philadelphia, PA 19103

Attorney for Plaintiff

_________________________________

DONNA M. ORZELL

Case 2:03-cv-05015-JG Document 4 Filed 10/20/03 Page 13 of 13