UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

SAE YOUNG KIM, et al., ) 

Plaintiffs, 

v. 

NATIONAL CERTIFICATION 

COMMISSION FOR ACUPUNCTURE 

AND ORIENTAL MEDICINE, et al., 

Defendants. 

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) Civil Case No. 12-54 (RJL) 

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MEMORANDUM ~ OPINION 

(August~ 20 12) [Dkt. ##6, 11] 

This case comes before the Court on Defendant's Rule 12(b)(6) Motion to Dismiss 

Plaintiffs' Complaint ("Def. 's Mot.") [Dkt. #6] and plaintiffs' Motion for Remand to 

State Court ("Pl.'s Mot.") [Dkt. # 11]. Upon consideration of the parties' pleadings, 

relevant law, and the entire record herein, defendant's motion is GRANTED and 

plaintiffs' motion is DENIED. 

BACKGROUND 

In 2010, plaintiff Kyung Sung School of Oriental Medicine (the "School") filed a 

complaint in this Court against defendant National Certification Commission for 

Acupuncture and Oriental Medicine ("NCCAOM"), in an action styled Kyung Sung 

School of Oriental Medicine v. National Certification Commission for Acupuncture and 

Oriental Medicine, No. 1 0-cv-1709 (''Kyung Sung f'), alleging breach of oral contract 

and promissory estoppel arising out of negotiations between the parties to enter into an 
alliance. See Compl., Kyung Sung I [Dkt. #1]. NCCAOM filed a motion to dismiss, 

which this Court granted as conceded pursuant to Local Civil Rule 7(b) on December 30, 

2010, after the School failed to timely oppose the motion. See Mem. Order, Kyung Sung 

I [D kt. # 1 1 ]. 

Undaunted, the School filed a second complaint against NCCAOM in the Superior 

Court of the District of Columbia on October 25, 2011, alleging breach of oral contract, 

promissory estoppeL and loss of reputation. adding the School's owner Sae Young Kim 

as a plaintiff (together with the School, ''plaintiffs''), and naming NCCAOM's CEO Kory 

Ward-Cook 1 and directors John Does 1-10 as additional defendants. Compl. [Dkt. # 1] 

~~ 1-5, 8, 33-57. On January 12, 2012, NCCAOM removed the action to this Court 

invoking diversity jurisdiction pursuant to 28 U.S.C. § 1332, see Notice of Removal [Dkt. 

#1] ~~~ 8-11, and on January 19,2012, NCCAOM filed the instant motion to dismiss on 

principles of res judicata, or in the alternative, for failure to state a claim, Mem. of P. & 

A. in Supp. ofDef.'s Mot. ("Def.'s Mem.") [Dkt. #6-1] at 1-3. Plaintiffs again failed to 

oppose the motion to dismiss, but did file a motion to remand to state court on February 

20, 2012, arguing improper removal under 28 U.S.C. § 1441(b)(2) because NCCAOM is 

a citizen of the forum state. Mem. of Law in Supp. of Pis.' Mot. [Dkt. # 11- I] at 1-2. 

Defendants opposed the motion to remand as untimely. Def.'s Mem. ofP. & A. in Opp'n 

1 Prior to this action's removal to this Court, the Superior Court dismissed the 

complaint as to defendant Kory Ward-Cook for untimely service under D.C. Superior 

Court Rule of Civil Procedure 4(m). See Notice of Filing Pre-Removal Order of 

Dismissal Without Prejudice as to Def. Kory Ward-Cook (''Notice of Dismissal") [Dkt. 

#4] at 1; Ex. 1 to Notice of Dismissal [Dkt. #4-1]. 

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to Pls.' Mot. [Dkt. # 12]. This Court previously entered a final, valid judgment on the 

merits as to claims plaintiffs previously had an opportunity to litigate, therefore, 

defendant's motion to dismiss on principles of res judicata is GRANTED. Furthermore, 

because plaintiffs' motion for remand was untimely, the motion is DENIED. 

STANDARD OF REVIEW 

"To survive a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). But "the court need not accept 

inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in 

the complaint." Kowal v. MCI Commc 'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). 

The court may consider "any documents either attached to or incorporated in the 

complaint and matters of which [the court] may take judicial notice." EEOC v. St. 

Francis Xavier Parochial Sch., 117 F .3d 621, 624 (D.C. Cir. 1997) (citation omitted). 

ANALYSIS 

I. Res Judicata 

A court may address issues of res judicata raised in a pre-answer Rule 12(b)(6) 

motion to dismiss. Stanton v. D.C. Court of Appeals, 127 F.3d 72, 76-77 (D.C. Cir. 

1997). Under the doctrine of res judicata, also known as claim preclusion, "a judgment 

on the merits in a prior suit bars a second suit involving identical parties or their privies 

based on the same cause of action." Apotex, Inc. v. FDA, 393 F.3d 210,217 (D.C. Cir. 

2004) (citation omitted). Specifically, "a subsequent lawsuit will be barred if there has 

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been prior litigation ( 1) involving the same claims or cause[ s] 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." Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, 

Pittman, LLC, 569 F.3d 485, 490 (D.C. Cir. 2009) (citation omitted). Thus, claim 

preclusion ·'embodies the principle that a party who once has had a chance to litigate a 

claim before an appropriate tribunal usually ought not to have another chance to do so," 

and is designed "to prevent litigation of matters that should have been raised in an earlier 

suit.'' SBC Commc 'ns Inc. v. FCC. 407 F.3d I 223, I 229-30 (D.C. Cir. 2005) (citations 

and internal quotation marks omitted). Although there appears to be no dispute regarding 

the application of res judicata, as plaintiffs failed to file any opposition, 2 the Court will 

address briefly each element in turn. 

To determine if two cases share the same claims or causes of action, a court must 

evaluate "whether they share the same nucleus of facts''; that is, ·'whether the facts are 

related in time, space, origin, or motivation.·· Apotex, Inc .. 393 F.3d at 217 (citations and 

internal quotation marks omitted). Here, the complaints allege causes of action arising 

from the very same nucleus of facts, and in fact, the complaint in the instant action is a 

2 The Court notes the current applicability ofLocal Civil Rule 7(b) to the instant 

action and is aware of its ability to grant defendant's motion to dismiss as conceded as it 

did in its previous decision. 

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near mirror-image ofthe complaint in Kyung Sung 1. 3 Thus, the first element is clearly 

met. 

Res judicata precludes claims not only between identical parties, but also between 

those in privity with the parties. "A privy is one [who is] so identified in interest with a 

party to the former litigation that he or she represents precisely the same legal right in 

respect to the subject matter of the case.'' Smith v. Jenkins, 562 A.2d 610, 615 (D.C. 

1989) (citation omitted). Privity may be found between "those whose interests are 

represented by a party to the action," id. (citation omitted), or between agents and 

principals "if the prior action concerned a matter within the agency," Major v. Inner City 

Prop. Mgmt., Inc., 653 A.2d 379, 381 (D.C. 1995) (citations omitted). Each ofthe 

additional parties to this proceeding are either directors, ot1icers, or owners of a party in 

Kyung Sung I and are suing, or are being sued, for actions taken within these official 

capacities, see, e.g., Compl. ~~ 4-5, 8, 12-15, 21-26, therefore, they are in privity with the 

parties to the prior litigation. 

Finally, my prior decision was a final, valid judgment on the merits by a court of 

competent jurisdiction. On December 30, 2010, this Court, sitting in diversity, Compl. 

3 The complaints differ on two grounds. First, the instant complaint contains 

allegations adding plaintiffKim and defendants Ward-Cook and John Does 1-10 as 

parties. See Compl. ~~ I, 4-5. Second, the instant complaint alleges a cause of action for 

loss of reputation. Com pl. ~~52-57. Despite these distinctions, the allegations in both 

complaints are based on the same underlying facts, closely related in time, space, origin, 

and motivation. See Apotex, Inc., 393 F.3d at 217; Page v. United States, 729 F.2d 818, 

820 (D.C. Cir. 1984) Cl I Jt is the facts surrounding the transaction or occurrence which 

operate to constitute the cause of action, not the legal theory upon which a litigant relies." 

(citations omitted)). 

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~ 3, Kyung Sung I, granted NCCAOM's Rule 12(b)(6) motion to dismiss. 4 Although the 

motion was treated as conceded pursuant to Local Civil Rule 7(b ), it was a final valid 

judgment on the merits. See Fed. R. Civ. P. 41(b) ("[A]ny dismissal not under this 

rule ... operates as an adjudication on the merits.''); Calica v. Comm 'r of Soc. Sec., 601 

F. Supp. 2d 203, 205 (D.D.C. 2009) (''[Blecause lplaintiff] did not respond to the 

defendant's motion to dismiss ... she was deemed to have conceded the matters raised in 

the defendant's motion ... and an order of dismissal was entered that was based on the 

merits of the case .... "). Thus, res judicata applies, barring plaintiffs from relitigating 

their claims. 

II. Motion for Remand 

A civil action filed in state court may be removed to a federal district court for that 

district having original jurisdiction. 28 U.S.C. § 144l(a). However, an action 

•'removable solely on the basis of r diversity J jurisdiction ... may not be removed if any 

of the ... defendants is a citizen of the State in which such action [was originally] 

brought." 28 U.S.C. § 144l(b)(2). Any challenge to the removal process must be raised 

within thirty days after the notice of removal is filed. 28 U.S.C. § 1447(c). Here, 

although defendant NCCAOM is a citizen ofthe forum state-the District of Columbiaplaintiffs did not timely raise their challenge, tiling their motion for remand thirty-eight 

days after the notice of removal was tiled. Thus, plaintiffs have waived their objections, 

4 The School did not appeal the Court's decision, but it did file a motion to vacate 

on January 13, 2011, Mot. to Vacate & to Extend Time to Respond, Kyung Sung I [Dkt. 

#12], which was later denied by Minute Order, Minute Order, Jan. 26, 2011, Kyung 

Sung I. 

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see, e.g., Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 939-40 (9th Cir. 2006) 

(agreeing with eight of the nine circuits that have decided the issue in holding that the 

forum defendant rule is a waivable procedural defect); Hurley v. Motor Coach Indus., 

Inc., 222 F.3d 377,380 (7th Cir. 2000) ("[W]ejoin the longstanding line of authority that 

holds that the forum defendant rule is nonjurisdictional," ''and hence waivable."), and 

therefore, the motion for remand is DENIED. 

CONCLUSION 

For the foregoing reasons, the Court GRANTS Defendant's Rule 12(b)(6) Motion 

to Dismiss Plaintiffs' Complaint [Dkt. #6] and DENIES plaintiffs' Motion for Remand to 

State Court [Dkt. # 11] and dismisses the action in its entirety. An order consistent with 

this decision accompanies this Memorandum Opinion. 

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