As the parties do in their submissions, we will refer to Creely v. Genesis Health

1

Ventures, Inc., 04-CV-0679, as Creely I and Creely v. Crestview Center, 04-CV-2080, as Creely

II.

1

IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT CREELY, :

: CIVIL ACTION

:

v. : NO. 05-CV-2080

:

CRESTVIEW CENTER :

SURRICK, J. SEPTEMBER 7, 2005

MEMORANDUM & ORDER

Presently before the Court are Defendant Crestview Center’s Motion to Dismiss (Doc.

No. 3) and Plaintiff Robert Creely’s Response (Doc. No. 4). For the following reasons,

Defendant’s Motion will be granted.

I. FACTUAL BACKGROUND

Plaintiff filed the instant Complaint on May 3, 2005. (Doc. No. 1.) The Complaint is

identical to the Complaint filed by Plaintiff on February 18, 2004, under Docket Number 04-CV0679, except that the Defendant here is Crestview Center while the Defendant in Docket No. 04-

CV-0679 is Genesis Health Ventures, Inc. (Compare Doc. No. 1, 04-CV-2080 with Doc. No. 1,

04-CV-0679.) In Creely I, we granted summary judgment in favor of the Defendant on May 26, 1

2005. Creely v. Genesis Health Ventures, Inc., Civ. A. No. 04-CV-0679, 2005 U.S. Dist. LEXIS

10223 (E.D. Pa. May 26, 2005).

Both cases arise out of the same job interview. Plaintiff, a Caucasian, contends that he

Case 2:05-cv-02080-RBS Document 6 Filed 09/07/05 Page 1 of 7
2

was subjected to race discrimination in the interview process. (Doc. No. 1.) Plaintiff asserts that

on May 15, 2003, he submitted an employment application to Defendant’s Crestview facility. 

(Id. ¶ 17.) Plaintiff claims that he was discriminated against by his interviewer, Marvin Kirkland,

who is African-American. (Id. ¶¶ 19-20.) In our Memorandum and Order granting summary

judgment, we found that Defendant had legitimate nondiscriminatory reasons for choosing not to

hire Plaintiff. Creely I, 2005 U.S. Dist. LEXIS 10223, at *26.

Defendant brings this Motion to Dismiss arguing that Plaintiff’s Complaint in Creely II

must be dismissed on grounds of res judicata. (Doc. No. 3 at 2.) Plaintiff does not dispute that

his Complaint should be dismissed. (Doc. No. 4 at 2.) Rather, Plaintiff argues that his

Complaint should not be dismissed based upon res judicata, but rather that summary judgment

should be granted pursuant to Federal Rule of Civil Procedure 56 based upon our decision in

Creely I.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint for failure

to state a claim. The purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of a

complaint, not to resolve disputed facts or to decide the merits of the case. NWJ Prop. Mgmt.,

LLC v. BACC Builders, Inc., No. 04-1943, 2004 WL 2095446, at *1 (E.D. Pa. Sept. 17, 2004);

Tracinda Corp. v. DaimlerChrysler AG, 197 F. Supp. 2d 42, 53 (D. Del. 2002). A motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. 

Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980) (citing Conley v. Gibson, 355 U.S. 41, 45-46

(1957)).

In evaluating a motion to dismiss, all allegations in the complaint and all reasonable

Case 2:05-cv-02080-RBS Document 6 Filed 09/07/05 Page 2 of 7
3

inferences that can be drawn therefrom must be accepted as true and viewed in the light most

favorable to the nonmoving party. Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.

1989) (citing Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir. 1985)). The court

may dismiss a complaint, “‘only if it is certain that no relief could be granted under any set of

facts that could be proved consistent with the allegations.’” Swin Resource Sys., Inc. v.

Lycoming County, 883 F.2d 245, 247 (3d Cir. 1989) (quoting Hishon v. King & Spalding, 467

U.S. 69, 73 (1984)).

III. DISCUSSION

Plaintiff asserts that “[t]he only appropriate way to dispose of the underlying case is on

summary judgment . . . grounds based specifically on the ruling in Creely v. Genesis Health

Ventures, Inc., so that both matters can be consolidated on appeal.” (Doc. No. 4 at 3.) Defendant

argues that Plaintiff’s Complaint should be dismissed based upon res judicata. (Doc. No. 3 at 2.)

The three-prong test for the application of res judicata requires: “(1) a final judgment in a

court of competent jurisdiction in the earlier case; (2) the assertion of the same cause of action in

the two cases at issue, and (3) the presence of the same parties or their privies in both lawsuits.” 

Avins v. Moll, 610 F. Supp. 308, 316 (E.D. Pa. 1984). Plaintiff does not dispute that Defendant

can satisfy the first two prongs. (Doc. No. 4 at 5.) Plaintiff does dispute, however, whether

Defendant can satisfy the third element.

The Third Circuit discussed the concept of privity in the context of res judicata in the case

of Bruszewski v. United States, 181 F.2d 419 (3d Cir. 1950). In Bruszewski, the court

significantly broadened the availability of res judicata to persons who were not necessarily

parties to or in “privity” with parties in the earlier case. The court stated that: 

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[w]here the party to be bound in the second proceeding is different from the party

against whom the original adjudication was made, a close relationship between

them is a requirement of fairness and may be necessary to provide due process of

law. . . . [W]here . . . res judicata is invoked against a plaintiff who has twice

asserted essentially the same claim against different defendants, courts have . . .

enlarged the area of res judicata beyond any definable categories of privity

between the defendants.

Id. at 422.

[T]he question of who is concluded by a judgment has been obscured by the use

of the words “privity” and “privies,” which in their precise . . . meaning in law are

scarcely determinative always of who is and who is not bound by a judgment. 

Courts have striven sometimes to give effect to the general doctrine that a

judgment is only binding between parties and privies by extending the

significance of the word “privies” to include relationships not originally embraced

in it, whereas the true reason for holding the issues res judicata does not

necessarily depend upon privity, but on the policy of the law to end litigation by

preventing a party who has had one fair trial of a question of fact from again

drawing it into controversy.

Id. at 422 n.6. Case law suggests that the concept of privity encompasses situations where one

defendant participates in and controls the lawsuit at issue. See Nordhorn v. Ladish Co., Inc., 9

F.3d 1402, 1405-06 (9th Cir. 1993). Where “the same plaintiff sues in multiple suits on identical

causes of action, defendants in the later suits who were not named as defendants in the earlier

suits are entitled to the benefit of res judicata so long as there is a close or particular relationship

with the defendants in the earlier suit.” Avins, 610 F. Supp. at 316 (citing Bruszewski, 181 F.2d

at 422). In Gambocz v. Yelencsics, 468 F.2d 837 (3d Cir. 1972), the Third Circuit affirmed

Bruszewski stating that res judicata applies “where there is a close or significant relationship

between successive defendants.” Id. at 841. The court observed that “Judge Hastie, the author of

[the Bruszewski] opinion, has stated, [i]t was our view in Bruszewski . . . that . . . a party who as

plaintiff had asserted a claim and had lost should not be heard again on the merits of that claim

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5

even in a second suit which he thereafter has instituted against a stranger to the original claim.” 

Id. at 840 (quoting Nickerson v. Kutchera, 419 F.2d 983, 985 (3d Cir. 1969) (Hastie, J.

dissenting)).

In this case, the Crestview Center is a subsidiary of Genesis Health Ventures, Inc. 

Another matter that is presently pending before us, Waters v. Genesis Health Ventures, Inc., No.

03-CV-2909, involves the same Defendant and the same attorneys for Plaintiff and Defendant. 

In that matter, the issue of the relationship between the Crestview Center and Genesis Health

Ventures, Inc. was brought to this Court’s attention when on September 3, 2004, Plaintiff’s

counsel filed a Motion to Amend Caption. (Doc. No. 47, 03-CV-2909.) In that motion, counsel

stated “it should be noted that Defendant’s counsel has already specifically referred to the parties

Plaintiff[] wishes to add [Crestview Center] as ‘successors’ in phone conversations and

correspondence.” (Id. at 6.) Counsel explained:

[T]here was no sale of Defendant. Rather, ownership stayed exactly the same and

for tactical reasons Defendant changed its name and began operating its previous

operations under two additional and independent identities. Not only was there no

sale of any assets, no change in directors, no change in management, no change in

subsidiaries, and no change in the line of business (operating nursing homes), but

the stock of Defendant remained the same.

(Id. at 7.) Counsel further explained, “Plaintiff originally filed a Complaint in this Matter

naming Genesis Health Ventures, Inc. as a Defendant. This was because it was common

knowledge to all employees of the Crestview North Nursing Home . . . that Genesis Health

Ventures, Inc. owned Crestview.” (Id. at 8.) Finally, counsel argued, “Defendant’s subsidiary . .

. has complete commonality of interests.” (Id. at 14.) It is apparent that at that time, Plaintiff’s

counsel agreed with Defendant’s counsel that the Crestview Center and Genesis Health Ventures

Case 2:05-cv-02080-RBS Document 6 Filed 09/07/05 Page 5 of 7
We note that both Plaintiff’s counsel and Defense counsel have argued inconsistently on 2

this point. While Defense counsel argues that the Crestview Center and Genesis Health

Ventures, Inc. are closely related in the instant Motion, in their Motion for Summary Judgment in

Creely I, Defense counsel argued that the Crestview Center and Genesis Health Ventures, Inc. are

not so interrelated that Plaintiff may pierce the corporate veil. (Doc. No. 29 at 21, 03-CV-0679.) 

Interestingly, both counsel invoke the doctrine of judicial estoppel, designed to “preserve the

integrity of the judicial system by preventing parties from playing fast and loose with the courts

in assuming inconsistent positions.” Motley v. N.J. State Police, 196 F.3d 160, 163 (3d Cir.

1999). 

6

had the “close or significant relationship” required by Bruszewski and Gambocz.

2

Under the circumstances, we are compelled to conclude that the Crestview Center and

Genesis Health Ventures, Inc. have the close and significant relationship necessary in order to be

in privity with each other for the purposes of res judicata. Throughout the proceedings in Creely

I, Creely II, and Waters v. Genesis Health Ventures, Inc., it has been clear that regardless of

whether Defendant describes itself as the Crestview Center or Genesis Health Ventures, Inc., the

same party was in control of the lawsuit. Both parties have used the names interchangeably

throughout their submissions before the Court. Both parties agree that the Crestview Center is a

subsidiary of Genesis Health Ventures, Inc. We conclude that this is exactly the kind of situation

envisioned by the Third Circuit in Bruszewski. “[A] close or significant relationship between

successive defendants” exists in this matter. Accordingly, Plaintiff’s Complaint is barred by res

judicata.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss will be granted.

An appropriate Order follows.

Case 2:05-cv-02080-RBS Document 6 Filed 09/07/05 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT CREELY, :

: CIVIL ACTION

:

v. : NO. 05-CV-2080

:

CRESTVIEW CENTER :

ORDER

AND NOW, this 7th day of September, 2005, upon consideration of Defendant Crestview

Center’s Motion to Dismiss (Doc. No. 3, 05-CV-2080), and all papers submitted in support

thereof and in opposition thereto, it is ORDERED that Defendant’s Motion is GRANTED. 

Plaintiff’s Complaint is DISMISSED WITH PREJUDICE based upon res judicata grounds.

IT IS SO ORDERED.

BY THE COURT:

S:/R. Barclay Surrick, Judge

Case 2:05-cv-02080-RBS Document 6 Filed 09/07/05 Page 7 of 7