UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

STEPHEN E. McMILLAN 

Plaintiff, 

v. 

WASHINGTON METROPOLITAN AREA 

TRANSIT AUTHORITY, 

Defendant. 

No. 18-cv-2362 (EGS) 

MEMORANDUM OPINION 

In 2010, Plaintiff Stephen E. McMillan (“Mr. McMillan”), 

proceeding pro se, brought an employment discrimination lawsuit 

against Defendant Washington Metropolitan Area Transit Authority 

(“WMATA”) under Title VII of the Civil Rights Act (“Title VII”), 

42 U.S.C. § 2000e, et seq., as well as the First and Fourteenth 

Amendments to the United States Constitution, arising out of the 

termination of his employment. In 2012, this Court granted 

WMATA’s motion for summary judgment, finding, inter alia, that: 

(1) Mr. McMillan failed to exhaust his administrative remedies 

with respect to several of his Title VII claims; (2) WMATA 

asserted a legitimate, nondiscriminatory explanation for its 

discipline and termination of Mr. McMillan; (3) Mr. McMillan 

failed to demonstrate that WMATA’s explanation was a pretext for 

discrimination, and no reasonable jury could find that WMATA’s 

stated reasons for his termination were pretextual; and 
2 

(4) WMATA was immune from Mr. McMillan’s constitutional claims, 

which were construed as claims under 42 U.S.C § 1983. McMillan 

v. Wash. Metro. Area Transit Auth., 898 F. Supp. 2d 64, 66, 68-

72 (D.D.C. 2012) (“McMillan I”). Mr. McMillan appealed the 

Court’s decision, and the United States Court of Appeals for the 

District of Columbia Circuit (“D.C. Circuit”) dismissed the 

appeal for lack of prosecution. 

Undeterred, Mr. McMillan brings a new Title VII action 

against WMATA, alleging employment discrimination and 

malfeasance. WMATA moves to dismiss the action with prejudice, 

arguing that Mr. McMillan cannot relitigate his termination. 

Upon careful consideration of the motion, opposition and reply 

thereto, the applicable law, and the entire record herein, the 

Court concludes that Mr. McMillan’s complaint fails to state a 

claim upon which relief can be granted, and that the doctrine of 

res judicata bars this action because it is another challenge to 

Mr. McMillan’s termination. Accordingly, the Court GRANTS

WMATA’s motion to dismiss and DISMISSES WITH PREJUDICE the 

Complaint. 

I. Background 

The factual background in this case, which is set forth in 

greater detail in the prior Opinion, will not be repeated in 
3 

full here.1 See McMillan I, 898 F. Supp. 2d at 66-68. In November 

1999, WMATA hired Mr. McMillan as an elevator and escalator 

technician. Id. at 66. After his inquiry into the status and 

distribution of a bonus owed to another WMATA employee who 

recruited him to work at WMATA, Mr. McMillan allegedly 

experienced “negative consequences” for the rest of his career 

there. Id.; see also Def.’s Statement of Material Facts Not in 

Dispute, McMillan I, Civil Action No. 10-1867, ECF No. 15-2 at 2 

¶ 3.2 According to him, WMATA denied him career advancement 

opportunities. McMillan I, 898 F. Supp. 2d at 66. And he 

observed WMATA exclusively hiring female employees for 

administrative job openings without regard to time-in-service or 

time-in-grade. Id.

Mr. McMillan lodged a complaint with WMATA’s Office of 

Civil Rights, alleging “mismanagement” and “discrimination,” 

id., and he attempted to file one with WMATA’s Inspector 

 

1 Mr. McMillan’s one-page complaint does not include numbered 

paragraphs as required by Federal Rule of Civil Procedure 

10(b). Nonetheless, the Court considers the documents attached 

to his complaint, see Compl., ECF No. 1-1 at 1-16, including his 

complaint filed in McMillan I. See Ward v. D.C. Dep’t of Youth 

Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (“[A] 

court may consider on a motion to dismiss the facts alleged in 

the complaint, documents attached as exhibits or incorporated by 

reference in the complaint[.]” (citation and internal quotation 

marks omitted)). 

2 When citing electronic filings throughout this Opinion, the 

Court cites to the ECF page number, not the page number of the 

filed document. 
4 

General’s Office to allege fraud, waste, and abuse. Id. at 66-

67. WMATA’s Office of Civil Rights concluded that his complaint 

did not fall within the purview of Title VII because it failed 

to involve discrimination allegations, and recommended that Mr. 

McMillan contact his union representative or superintendent. Id.

at 66. 

Between February 2007 and June 2008, Mr. McMillan was 

involved in at least four separate incidents at WMATA that 

resulted in disciplinary actions, including a written warning 

and three suspensions. Id. at 67, 72; see also Letter from David 

A. Lacosse, Director, Office of Elevator & Escalator Servs., to 

Mr. McMillan (Dec. 3, 2008), McMillan I, Civil Action No. 10-

1867, ECF No. 15-3 at 3. Pending the outcome of an investigation 

into “annual and monthly preventive maintenance” work that he 

was tasked with performing at a Metrorail station escalator 

unit, WMATA placed Mr. McMillan on administrative leave in 

November 2008. Id. at 2. One month later, WMATA terminated Mr. 

McMillan, citing his work-related incidents and negligence in 

performing the maintenance work. Id. at 2-3. 

Mr. McMillan filed his first Title VII lawsuit against 

WMATA on November 2, 2010 after filing a charge of 

discrimination with the United States Equal Employment 

Opportunity Commission (“EEOC”) and receiving the EEOC’s 

Dismissal and Notice of Rights. McMillan I, 898 F. Supp. 2d at 
5 

72 at 67. Mr. McMillan alleged, inter alia, that WMATA 

retaliated against him from April 11, 2002 through June 10, 

2008. Id. On October 12, 2012, this Court granted WMATA’s motion 

for summary judgment, id. at 72, and entered final judgment in 

favor of WMATA, Order, McMillan I, Civil Action 10-1867, ECF No. 

22 at 1. The Court found that: (1) WMATA was immune from Mr. 

McMillan’s constitutional claims, which the Court construed as 

claims brought under 42 U.S.C. § 1983, McMillan I, 898 F. Supp. 

2d at 68-70; (2) Mr. McMillan failed to exhaust his 

administrative remedies with respect to several of the Title VII 

claims, except his retaliation claim as to the termination, id.

at 70-71; (3) WMATA asserted a legitimate, nondiscriminatory 

explanation for its discipline and termination of Mr. McMillan, 

id. at 72, and (4) Mr. McMillan failed to demonstrate that 

WMATA’s explanation was pretextual, and a reasonable jury could 

not find that WMATA’s stated reasons were pretextual, id. On 

October 31, 2012, Mr. McMillan filed a Notice of Appeal, Pl.’s 

Notice of Appeal, McMillan I, Civil Action 10-1867, ECF No. 24 

at 1. The D.C. Circuit dismissed the appeal for lack of 

prosecution because Mr. McMillan failed to respond to an Order 

to Show Cause. Order, McMillan v. Wash. Metro. Area Transit 

Auth., No. 12-7117 (D.C. Cir. Feb. 14, 2013). 

More than five years later, Mr. McMillan, proceeding pro 

se, filed a new complaint against WMATA, alleging discrimination 
6 

and “malfeasance” in WMATA’s General Counsel’s Office, the EEOC, 

and the United States District Court. Compl., ECF No. 1 at 1. 

WMATA filed a motion to dismiss on November 9, 2018. See Def.’s 

Mot. to Dismiss, ECF No. 6 at 1. WMATA moves to dismiss Mr. 

McMillan’s complaint on two grounds: (1) the Court lacks subject 

matter jurisdiction over this case because Mr. McMillan’s 

complaint is barred by res judicata, id.; and (2) the complaint 

fails to state a claim upon which relief can be granted, Def.’s 

Mem. of Law in Support of Def.’s Mot. to Dismiss (“Def.’s 

Mem.”), ECF No. 6-1 at 4. Mr. McMillan filed his opposition 

brief on December 13, 2018, Pl.’s Opp’n, ECF No. 10 at 1, and 

WMATA filed its reply brief on December 18, 2018, see Def.’s 

Reply, ECF No. 11. The motion is ripe and ready for the Court’s 

adjudication. 

II. Legal Standard 

The pleadings of pro se parties, such as the plaintiff in 

the instant action, are “to be liberally construed, . . . and a 

pro se complaint, however inartfully pleaded, must be held to 

less stringent standards than formal pleadings drafted by 

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations 

and internal quotation marks omitted). Nevertheless, “[a]lthough 

a court will read a pro se plaintiff’s complaint liberally, a 

pro se complaint must present a claim on which the court can 

grant relief.” Chandler v. Roche, 215 F. Supp. 2d 166, 168 
7 

(D.D.C. 2002). 

A. Rule 12(b)(6) 

1. Failure to State a Claim 

“A Rule 12(b)(6) motion tests the legal sufficiency of a 

complaint[.]” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 

2002). A complaint must contain “a short and plain statement of 

the claim showing that the pleader is entitled to relief,” Fed. 

R. Civ. P. 8(a)(2), “in order to give the defendant fair notice 

of what the . . . claim is and the grounds upon which it rests,” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation 

and internal quotation marks omitted). “[T]he complaint is 

construed liberally in the plaintiff[’s] favor, and [the Court] 

grant[s] [the] plaintiff[ ] the benefit of all inferences that 

can be derived from the facts alleged.” Kowal v. MCI Comm’cns 

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court 

is “not bound to accept as true a legal conclusion couched as a 

factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 

(1986). 

A complaint survives a Rule 12(b)(6) motion only if it 

“contain[s] 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) (quoting Twombly, 

550 U.S. at 570). A claim is facially plausible “when the 

plaintiff pleads factual content that allows the court to draw 
8 

[a] reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. A complaint alleging facts which are 

“‘merely consistent with’ a defendant’s liability . . . ‘stops 

short of the line between possibility and plausibility of 

entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). 

2. Doctrine of Res Judicata

“[T]he doctrine [of res judicata] is designed to conserve 

judicial resources, avoid inconsistent results, engender respect 

for judgments of predictable and certain effect, and to prevent 

serial forum-shopping and piecemeal litigation.” Hardison v. 

Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981). Res judicata

prevents the Court from hearing “repetitious suits involving the 

same cause of action once a court of competent jurisdiction has 

entered a final judgment on the merits.” United States v. Tohono 

O’Odham Nation, 563 U.S. 307, 315 (2011) (citation and internal 

quotation marks omitted). The doctrine “bars relitigation not 

only of matters determined in a previous litigation but also 

ones a party could have raised[.]” Capitol Hill Grp. v. 

Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 491 (D.C. 

Cir. 2009) (quoting NRDC v. Thomas, 838 F.2d 1224, 1252 (D.C. 

Cir. 1988)). 

“Res judicata may be brought as an affirmative defense that 

is generally pleaded in a defendant’s answer, but is also 

properly brought in a pre-answer Rule 12(b)(6) motion when all 
9 

relevant facts are shown by the court’s own records, of which 

the court takes notice.” Sczygelski v. U.S. Customs & Border 

Patrol Agency, 48 F. Supp. 3d 80, 84 (D.D.C. 2014) (citations 

and internal quotation marks omitted), aff’d sub nom. Sczygelski 

v. U.S. Customs & Border Prot., 624 F. App’x 1 (D.C. Cir. 2015) 

(per curiam).3

B. Rule 12(b)(1) 

On a motion to dismiss for lack of subject matter 

jurisdiction pursuant to Federal Rule of Civil Procedure 

12(b)(1), the plaintiff bears the burden of establishing subject 

matter jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 

555, 561 (1992); see also Fed. R. Civ. P. 8(a)(1). “Because 

subject-matter jurisdiction focuses on the court’s power to hear 

the plaintiff’s claim, a Rule 12(b)(1) motion imposes on the 

court an affirmative obligation to ensure that it is acting 

within the scope of its jurisdictional authority.” Grand Lodge 

of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 

(D.D.C. 2001). The Court “may consider materials outside the 

pleadings in deciding whether to grant a motion to dismiss for 

 

3 The Court takes judicial notice of the prior proceedings and 

the subsequent appeal. See, e.g., Covad Commc’ns Co. v. Bell 

Atlantic Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (permitting 

judicial notice of public records of other proceedings); 

Hemphill v. Kimberly–Clark Corp., 605 F. Supp. 2d 183, 186 

(D.D.C. 2009) (“A court may take judicial notice of public 

records from other proceedings.”). 
10 

lack of jurisdiction[.]” Jerome Stevens Pharm., Inc. v. FDA, 402 

F.3d 1249, 1253 (D.C. Cir. 2005). 

III. Analysis 

WMATA advances two primary arguments for dismissal. First, 

WMATA contends that Mr. McMillan’s instant action is barred by 

the doctrine of res judicata because it attempts to revive 

claims of misconduct and employment discrimination that this 

Court dismissed in McMillan I. Def.’s Mot. to Dismiss, ECF No. 

6. at 1. Next, WMATA argues that Mr. McMillan’s “nonsensical 

Complaint fails to state sufficient factual allegations to state 

a claim for relief plausible on its face.” Def.’s Mem., ECF No. 

6-1 at 4. Mr. McMillan responds that “[t]he Order obtained from 

this Court on October 12, 2012 by WMATA for Summary Judgment, is 

the basis – not the essence of the Plaintiff’s current Claim.” 

Pl.’s Opp’n, ECF No. 10 at 5 (emphasis in original). Mr. 

McMillan argues that WMATA’s motion to dismiss “fails to address 

or controvert the allegations in the complaint.” Id. Mr. 

McMillan contends that WMATA’s failure to conduct an inquiry 

into his claims can be characterized as “willful blindness” 

because WMATA “had express notice of the instant case,” id., but 

WMATA failed to “ascertain the facts in regard to the instant 

case,” id. at 6. The Court addresses each argument, first 

considering whether Mr. McMillan’s complaint fails to state a 

claim upon which relief can be granted, and then considering 
11 

whether Mr. McMillan’s claims are barred by res judicata. The 

Court concludes that Mr. McMillan’s complaint fails to state a 

claim upon which relief can be granted, and that the doctrine of 

res judicata bars this action. 

A. Mr. McMillan’s Complaint Must Be Dismissed for Failure 

to State a Claim 

Mr. McMillan brings the present action against WMATA, 

alleging employment discrimination and misconduct by WMATA. See

Compl., ECF No. 1 at 1; see also Pl.’s Opp’n, ECF No. 10 at 5-6. 

WMATA argues that this Court should dismiss Mr. McMillan’s 

complaint because it fails to state a claim upon which relief 

can be granted. Def.’s Mem., ECF No. 6-1 at 4. The Court agrees. 

Liberally construing the complaint, Mr. McMillan appears to 

allege that “the United States District Court discovery 

apparatus” and “empirical evidence” from “the United States 

Department of Justice investigative services” revealed 

misconduct at WMATA, the EEOC, and the federal district court. 

See Compl., ECF No. 1 at 1. These conclusory allegations are not 

enough to meet the plausibility standard.4 See, e.g., Twombly, 

 

4 In his opposition brief, Mr. McMillan appears to assert a due 

process claim because he contends that WMATA’s alleged failure 

to investigate his case violates his due process rights under 

the Fifth and Fourteenth Amendments. See Pl.’s Opp’n, ECF No. 10 

at 3, 6, 8-9. Mr. McMillan did not assert a due process claim in 

his complaint, see Compl., ECF No. 1 at 1. While “the pro se

litigant may, in effect, supplement his [or her] complaint with 

the allegations included in his [or her] opposition[,] the pro 

se plaintiff must still plead factual matter that permits the 
12 

550 U.S. at 555 (“Factual allegations must be enough to raise a 

right to relief above the speculative level . . . on the 

assumption that all the allegations in the complaint are true 

(even if doubtful in fact)[.]”); Iqbal, 556 U.S. at 678 (“A 

pleading that offers labels and conclusions or a formulaic 

recitation of the elements of a cause of action will not do.” 

(citation and internal quotation marks omitted)). Mr. McMillan’s 

complaint is devoid of any facts or circumstances that would 

permit this Court to draw any inferences of the alleged 

misconduct. See Compl., ECF No. 1 at 1. 

Even when given the liberal construction afforded to pro se

pleadings, Mr. McMillan’s employment discrimination claim under 

Title VII wholly fails to state a claim upon which relief can be 

granted. See Fed. R. Civ. P. 12(b)(6). The Court therefore finds 

that Mr. McMillan’s claims cannot withstand a motion to dismiss.5 

 

court to infer more than the mere possibility of misconduct.” 

Magowan v. Lowery, 166 F. Supp. 3d 39, 58 (D.D.C. 2016) 

(citations and internal quotation marks omitted). To the extent 

that Mr. McMillan asserts a due process claim, the Court finds 

that Mr. McMillan has failed to plead facts that allow this 

Court to infer beyond the mere possibility of WMATA’s alleged 

misconduct. 

5 On November 8, 2018, the Clerk of Court received Mr. McMillan’s 

“Motion for Default for Defendant’s Failure to Answer” and his 

Affidavit in Support of Default. See Pl.’s Aff. in Support of 

Default (“Pl.’s Aff.”), ECF No. 7 at 1-2. The Clerk of Court did 

not enter a default against WMATA. See generally docket of Civil 

Action No. 18-2362. The Court granted Mr. McMillan leave to file 

the motion and affidavit on November 16, 2018. WMATA filed its 

opposition brief on November 28, 2018. See Def.’s Opp’n to Pl.’s 

Mot. for Default, ECF No. 8 at 1. Mr. McMillan argues that he is 
13 

B. The Doctrine of Res Judicata Bars Mr. McMillan’s 

Complaint 

The Court next considers whether Mr. McMillan’s complaint 

is barred by the doctrine of res judicata. Under this doctrine, 

“a subsequent lawsuit will be barred if there has been prior 

litigation (1) involving the same claims or cause 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.” Smalls v. United States, 471 F.3d 186, 

192 (D.C. Cir. 2006). 

It is undisputed that all four prerequisites apply in this 

case. The present action and McMillan I involve the same cause 

of action because Mr. McMillan continues to challenge his 

termination under Title VII. See Pl.’s Opp’n, ECF No. 10 (“[T]he 

instant case is substantially derivative of the [first 

action].”); id. (stating that the McMillan I decision “is the 

basis . . . of the Plaintiff’s current Claim.”). In 2010, 

 

entitled to a default judgment because WMATA’s motion to dismiss 

was not filed within twenty-one days after being served with the 

summons and complaint. See Pl.’s Aff., ECF No. 7 at 1-2; see 

also Pl.’s Opp’n, ECF No. 10 at 5. “[U]nless the complaint 

states a claim upon which relief may be granted as to the 

defendant[ ] who [has] defaulted, default judgment is not 

justified.” Harris v. U.S. Dep’t of Justice, 600 F. Supp. 2d 

129, 136–37 (D.D.C. 2009). The Court therefore DENIES Mr. 

McMillan’s motion for default judgment because Mr. McMillan has 

failed to provide a “short and plain statement of the claim 

showing that [he] is entitled to relief,” Fed. R. Civ. P. 

8(a)(2), and Mr. McMillan’s complaint fails to state a claim 

upon which relief can be granted, see Fed. R. Civ. P. 12(b)(6). 
14 

Mr. McMillan brought a Title VII lawsuit against WMATA, see

Compl., McMillan I, Civil Action No. 10-1867, ECF No. 1 at 1, 

and he brought this action under Title VII against WMATA in 

2018, see Compl., ECF No. 1 at 1. In McMillan I, this Court 

granted WMATA’s motion for summary judgment, which constitutes a 

final judgment on the merits. See Prakash v. Am. Univ., 727 F.2d 

1174, 1182 (D.C. Cir. 1984) (“As a decision on the merits, a 

summary judgment merges or bars the action for res judicata 

purposes.” (footnote omitted)). There is no question that this 

Court is a court of competent jurisdiction. 

A final “judgment bars any further claim based on the same 

‘nucleus of facts,’ for ‘it 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.’” 

Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984) 

(quoting Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1234 (2d 

Cir. 1977)) (emphasis added). “In order to determine whether 

factual events are part of the same transaction, a court must 

‘determine[ ] pragmatically . . . whether the facts are related 

in time, space, origin, or motivation, whether they form a 

convenient trial unit, and whether their treatment as a unit 

conforms to the parties’ expectations or business understanding 

or usage.’” Sczygelski, 48 F. Supp. 3d at 85 (quoting Stanton v. 

D.C. Court of Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997)). 
15 

 The instant action concerns the same “nucleus of facts” 

that this Court addressed in McMillan I because Mr. McMillan 

challenges not only his termination in both actions, but also 

WMATA’s alleged failure to investigate his other claims stemming 

from his termination. Compare McMillan I, 898 F. Supp. 2d at 66 

(Mr. McMillan alleged “mismanagement,” “fraud, waste and abuse” 

at WMATA), with Compl., ECF No. 1 at 1 (alleging “malfeasance” 

at WMATA, the EECO, and the federal district court). Mr. 

McMillan had the opportunity to litigate those claims against 

the EEOC and the federal district court in McMillan I, but he 

decided to base, in part, his lawsuit on WMATA’s alleged 

mismanagement. The Court therefore finds that Mr. McMillan’s 

present action is barred by the doctrine of res judicata because 

his claims could have been—and some have already been—raised in 

McMillan I.6

Nothing in the attachments to Mr. McMillan’s complaint 

alters this conclusion. See Compl., ECF No. 1-1 at 1-16. Mr. 

 

6 To the extent Mr. McMillan asserts a fraud claim, see Pl.’s 

Opp’n, ECF No. 10 at 2-3, that claim is barred by res judicata 

because he asserted fraud allegations against WMATA in McMillan 

I. See 898 F. Supp. 2d at 66. Mr. McMillan appears to rely on 

Gabelli v. S.E.C., 568 U.S. 442 (2013), to suggest that WMATA 

has committed fraud. See Pl.’s Opp’n, ECF No. 10 at 2-3. In 

Gabelli, the Supreme Court held that the United States 

Securities and Exchange Commission (“SEC”) cannot seek civil 

penalties under 28 U.S.C. § 2462 for a claim that accrued more 

than five years before the SEC filed the action. 568 U.S. at 

454. Gabelli, a case that applies to SEC civil-enforcement 

actions alleging securities fraud, has no bearing on this case. 
16 

McMillan attaches to his complaint certain e-mail 

communications, letters, and court filings in McMillan I. See

id. In September 2018, Mr. McMillan sent an e-mail to WMATA, 

expressing his intention to file a “follow-up civil action” to 

McMillan I. Id. at 2. Ten days before Mr. McMillan filed this 

action, he sent an e-mail to WMATA’s Board of Directors, stating 

that “[c]onstructive notice is chargeable where-there has been 

lack of due diligence or a design to abstain from inquiry to 

avoid notice.” Id. at 1. He goes on to state that WMATA’s Board 

of Directors has been “afforded the opportunity to inquire into 

and deny the law on which the entitlement to make the claim is 

based.” Id. To support his statements, Mr. McMillan cites nonbinding, New York state court decisions. Id. (citing Reed v. 

Gannon, 50 N.Y. 345, 350 (N.Y. 1872); Seymour v. Seymour, 28 

A.D. 495 (N.Y. App. Div. 1898); In re Di Marti, 72 Misc. 148, 

151 (N.Y. Sup. Ct. 1911)). In his opposition brief, Mr. McMillan 

relies on those same New York state court decisions and other 

decisions to make the same “constructive notice” argument that 

WMATA failed to examine the underlying facts of his claims. 

Pl.’s Opp’n, ECF No. 10 at 6.7

To the extent Mr. McMillan attempts to assert a new legal 

 

7 Mr. McMillan’s cited cases are inapposite for the simple reason 

that WMATA does not dispute that it had notice of the lawsuits. 

See Pl.’s Opp’n, ECF No. 10 at 2-3, 6-8; see generally Def.’s 

Reply, ECF No. 11. 
17 

theory as the basis for the present action, such a “new” theory—

that WMATA had constructive notice of his claims and failed to 

examine the facts of his case—could have been brought in 

McMillan I. See Thunder v. U.S. Parole Comm’n, 133 F. Supp. 3d 

5, 8 (D.D.C. 2015) (Sullivan, J.) (“A party cannot escape 

application of the doctrine by raising a different legal theory 

or by seeking a different remedy in the new action that was 

available to him in the prior action.”). Indeed, Mr. McMillan 

has already claimed that WMATA ignored his claims in McMillan I. 

See Po Kee Wong v. U.S. Sol. Gen., 839 F. Supp. 2d 130, 137 

(D.D.C. 2012) (Sullivan, J.) (dismissing a pro se plaintiff’s 

claims on grounds of res judicata because the plaintiff had his 

opportunity to fully litigate the claims in a prior proceeding), 

aff’d, No. 12-5102, 2012 WL 3791302 (D.C. Cir. Aug. 8, 2012). 

While the law in this Circuit makes clear that “[r]es judicata 

may not bar a later suit where the plaintiff was not aware of 

its claim at the time of the first litigation[,]” Capitol Hill 

Grp., 569 F.3d at 491, Mr. McMillan has failed to present any 

new evidence that demonstrates that he was unaware of the claims 

in his complaint in the instant action at the time of McMillan 

I. 

Having found that Mr. McMillan’s complaint is barred by the 

doctrine of res judicata, the Court next addresses WMATA’s 

argument for dismissal for lack of subject matter jurisdiction. 
18 

See Def.’s Mot. to Dismiss, ECF No. 6 at 1. Mr. McMillan has 

failed to argue that he has met his burden of establishing that 

the Court has subject matter jurisdiction. See generally Pl.’s 

Opp’n, ECF No. 10. Instead, he appears to argue that this Court 

must consider whether exercising personal jurisdiction over 

WMATA would offend “traditional notions of fair play and 

substantial justice.” Pl.’s Opp’n, ECF No. 10 at 2 (quoting 

Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The 

Court need not address Mr. McMillan’s argument because WMATA 

does not move to dismiss the complaint for lack of personal 

jurisdiction. See Def.’s Mot. to Dismiss, ECF No. 6 at 1. 

Because the Court has determined that Mr. McMillan fails to meet 

the plausibility standard to survive a motion to dismiss under 

Rule 12(b)(6), the Court need not reach the other basis for 

dismissal—lack of subject matter jurisdiction—advanced by WMATA.8

See Kaufman v. I.R.S., 787 F. Supp. 2d 27, 34 n.6 (D.D.C. 2011). 

Furthermore, the D.C. Circuit has made clear that res judicata

does not deprive the Court of subject matter jurisdiction. E.g., 

 

8 WMATA’s reliance on Rizvi v. McClure, 597 F. Supp. 2d 63, 66 

(D.D.C. 2009) does not change this conclusion. See Def.’s Mem., 

ECF No. 6-1 at 3. The court’s observation in Rizvi—that “a 

motion for dismissal based on res judicata properly falls under 

Federal Rule of Civil Procedure 12(b)(1),” 597 F. Supp. 2d at 

66—is inconsistent with D.C. Circuit precedent because res 

judicata does not affect the Court’s subject matter 

jurisdiction. See, e.g., Smalls, 471 F.3d at 189; Kursar v. 

Transportation Sec. Admin., 751 F. Supp. 2d 154, 163 n.7 (D.D.C. 

2010), aff’d, 442 F. App’x 565 (D.C. Cir. 2011). 
19 

Bailey v. Fulwood, 793 F.3d 127, 136 n.5 (D.C. Cir. 2015) 

(“[N]either collateral estoppel nor res judicata deprives the 

court of subject-matter jurisdiction.”); Smalls, 471 F.3d at 189 

(“[T]he defense of res judicata, or claim preclusion, while 

having a somewhat jurisdictional character, does not affect the 

subject matter jurisdiction of the district court.”). 

Finally, WMATA moves to dismiss this action with prejudice. 

Def.’s Mem., ECF No. 6-1 at 1. The Court observes that “[t]he 

standard for dismissing a complaint with prejudice is high: 

‘dismissal with prejudice is warranted only when a trial court 

determines that the allegation of other facts consistent with 

the challenged pleading could not possibly cure the 

deficiency.’” Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir. 

2006) (emphasis in original) (quoting Firestone v. Firestone, 76 

F.3d 1205, 1209 (D.C. Cir. 1996). Because such a determination 

has been made, the Court must dismiss this action with 

prejudice. 

IV. Conclusion 

For the reasons set forth above, the Court GRANTS WMATA’s 

motion to dismiss and DISMISSES WITH PREJUDICE Mr. McMillan’s 

complaint. A separate Order accompanies this Memorandum Opinion. 

SO ORDERED 

Signed: Emmet G. Sullivan 

United States District Judge 

July 26, 2019