### UNITED STATESDISTRICT COURT FORTHE DISTRICT OF COLUMBIA SAE YOUNG KIM, 

### etal., ) 

### Plaintiffs,


### v. NATIONAL CERTIFICATION COMMISSION FORACUPUNCTURE AND ORIENTALMEDICINE,

### etal., Defendants. ) ) ) 

### ) Civil Case No. 12-54 (RJL) ) ) ) ) ) )

# ~ 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] andplaintiffs' Motion for Remand to State Court ("Pl.'s Mot.") [Dkt. #11]. Upon consideration ofthe parties' pleadings, relevant law, and the entire record herein, defendant's motion is GRANTED and plaintiffs' motion is DENIED. 

### BACKGROUND In 2010, plaintiffKyung Sung School ofOriental Medicine (the "School") filed a complaint in this Court against defendant National Certification Commission for Acupuncture and Oriental Medicine ("NCCAOM"), in an action styled

### KyungSung Schoolof OrientalMedicine v. National Certification CommissionforAcupuncture and OrientalMedicine, No. 1 0-cv-1709 

### (''Kyung Sungf'), 

### alleging breach oforal contract and promissory estoppel arising out ofnegotiations between the parties to enter into analliance. See Compl., KyungSungI [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, KyungSung I [Dkt. # 1 1 ]. Undaunted, the School filed a second complaint against NCCAOM in the Superior Court ofthe District ofColumbia on October 25, 2011, alleging breach oforal contract, promissory estoppeL and loss ofreputation. adding the School's owner Sae Young Kim
as a plaintiff(together with the School, ''plaintiffs''), and naming NCCAOM's CEO Kory Ward-Cook1and directors John Does 1-10 as additional defendants. Compl. [Dkt. #1]**~~** 1-5, 8, 33-57. On January 12, 2012, NCCAOMremoved the action to this Court invoking diversityjurisdictionpursuant to 28 U.S.C. 

### § 1332, see Notice ofRemoval [Dkt. #1]**~~~** 8-11, and on January 19,2012, NCCAOM filed the instant motion to dismiss on principles ofresjudicata, or in the alternative, for failure to state a claim, Mem. ofP. & 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) becauseNCCAOM is
a citizen ofthe forum state. Mem. ofLaw in Supp. ofPis.' Mot. [Dkt. #11-I] at 1-2. Defendants opposed the motion to remand as untimely. Def.'s Mem. ofP. & A. in Opp'n

1Priorto 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 ofCivil Procedure 4(m). See Notice ofFiling Pre-Removal Order of Dismissal Without Prejudice as to Def. Kory Ward-Cook (''Notice ofDismissal") [Dkt. #4] at 1; Ex. 1to Notice ofDismissal [Dkt. #4-1].
2

### to Pls.' Mot. [Dkt. #

### 12]. This Court previously entered a final, validjudgmenton the merits as to claims plaintiffs previously had an opportunity to litigate, therefore, defendant's motion to dismiss on principles ofresjudicata 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 reliefthat 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 ifsuch 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 ofwhich [the court] may takejudicial notice." EEOC v. St. FrancisXavier ParochialSch., 

### 117 F.3d 621, 624 (D.C. Cir. 1997) (citation omitted). ANALYSIS I. 

### Res Judicata A court may address issues ofresjudicataraised in a pre-answerRule 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 ofresjudicata, also known as claim preclusion, "ajudgment
on the merits in a prior suit bars a second suit involving identical parties or theirprivies based on the same cause ofaction." Apotex, Inc. v. FDA, 

### 393 F.3d 210,217 (D.C. Cir. 2004) (citation omitted). Specifically, "a subsequent lawsuit will be barred ifthere has

3been prior litigation (1) involving the same claims or cause[s] ofaction, (2) between the
same parties or their privies, and (3) there has been a final, validjudgment on the merits, (4) by a court ofcompetentjurisdiction." CapitolHill 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 ofmatters that shouldhave been raised in an earlier suit.'' SBC Commc 'ns Inc. v. FCC. 407 F.3d I223, I229-30 (D.C. Cir. 2005) (citations and internal quotation marks omitted). Although there appears to be no dispute regarding the application ofresjudicata, as plaintiffs failed to file any opposition,2 the Court will address briefly each element in turn. To determine iftwo cases share the same claims orcauses ofaction, a court must evaluate "whetherthey share the same nucleus offacts''; that is, ·'whetherthe 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 ofaction arising from the very same nucleus offacts, 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 ofits ability to grant defendant's motion to dismiss as conceded as it did in its previous decision.
4near mirror-image ofthe complaint in KyungSung 1.3 Thus, the first element is clearly met. Resjudicataprecludes claims not only between identical parties, but also between those in privity with the parties. "Aprivy 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 ofthe 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 "ifthe prior action concerned a matterwithin 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 ofa party in KyungSungI 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, validjudgment on the merits by a court of competentjurisdiction. 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 ofaction for loss ofreputation. Compl.**~~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. SeeApotex, Inc., 393 F.3d at 217; Page v. UnitedStates, 729 F.2d 818, 820 (D.C. Cir. 1984)

## ClIJt is the facts surrounding the transaction or occurrence which operate to constitute the cause ofaction, not the legal theory upon which a litigant relies." (citations omitted)).
5**~** 3, KyungSungI, granted NCCAOM's Rule 12(b)(6) motion to dismiss.4 Althoughthe 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 notrespond to the defendant's motion to dismiss
... she was deemed to have conceded the matters raised in the defendant's motion
... and an order ofdismissal was entered that was based onthe merits ofthe case ...."). Thus, resjudicata applies, barringplaintiffs from relitigating their claims.

II. Motion for Remand A civil action filed in state court may be removedto a federal district court for that district having originaljurisdiction. 28 U.S.C. § 144l(a). However, an action •'removable solely on the basis of

## r diversityJjurisdiction
... may not be removed ifany ofthe
... defendants is a citizen ofthe 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 ofremoval is filed. 28 U.S.C. § 1447(c). Here, although defendant NCCAOM is a citizen ofthe forum state-the District ofColumbiaplaintiffs did not timely raise their challenge, tiling their motion for remandthirty-eight days after the notice ofremoval was tiled. Thus, plaintiffs have waived their objections,

4 The School did not appeal the Court's decision, but it did file a motionto vacate on January 13, 2011, Mot. to Vacate & to Extend Time to Respond, KyungSungI [Dkt. #12], which was later denied by Minute Order, Minute Order, Jan. 26, 2011, Kyung Sung I. 6

### see, e.g., Livelyv. Wild Oats Markets, Inc., 456 F.3d 933, 939-40 (9th Cir. 2006) (agreeing with eight ofthe 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]ejointhe longstanding line ofauthority 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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