Opinion
Civil Action No. 15-1060
11-01-2017
KELLY J. VAY, Plaintiff, v. ALLEGHENY COUNTY OF PENNSYLVANIA; WILLIAM MCKAIN, County Manager in his individual and official capacity; KARL WILLIAMS, Medical Examiner, in his individual and official capacity; ROBERT HUSTON, Administrator, Laboratory Director of the Medical Examiner of Allegheny County, in his individual and official capacity; STEPHEN PILARSKI, former Administrator of the Office of the Medical Examiner of Allegheny County and currently Deputy Manager of Allegheny County, in his individual and official capacity; and MICHAEL BAKER, former Manager of Morgue Operations, in his individual capacity, Defendants.
MEMORANDUM OPINION
I. INTRODUCTION
This action involves allegations by Plaintiff that Defendants retaliated against her by suspending her for twenty-six days after she sent a letter to a county executive that outlined matters of public concern. In her Complaint, Plaintiff asserts claims against Defendants under the First Amendment for retaliation. (Docket No. 1). Presently before the Court is Defendants' Motion for Summary Judgment on Grounds of Res Judicata. (Docket No. 55). The matter has been fully briefed, and the parties filed supplemental materials following oral argument. (See Dockets Nos. 55-57, 59-63, 66-72, 75, 77-78). Also pending before the Court is Plaintiff's Motion to Strike Defendants' Supplement. (Docket No. 76). After careful consideration of the parties' positions and having evaluated all of the evidence in light of the appropriate standard governing motions for summary judgment, and for the following reasons, Defendants' Motion for Summary Judgment will be GRANTED, and Plaintiff's Motion to Strike Defendants' Supplement will be DENIED, as moot.
II. FACTUAL BACKGROUND
The following facts are not contested. On June 16, 2014, Plaintiff Kelly Vay filed a complaint at Civil Action No. 14-769 ("Vay I") and asserted Equal Protection claims against Robert Hudson, Stephen Pilarski, Michael Baker, and Michael Chichwak under 42 U.S.C. § 1983 for gender discrimination, hostile work environment, and retaliation. (Docket No. 56 at ¶ 1; Docket No. 60 at ¶ 1). After the Court granted Plaintiff leave to file an amended complaint, she added Allegheny County as a defendant under Title VII. (Docket No. 56 at ¶¶ 2-3; Docket No. 60 at ¶¶ 2-3). The Court subsequently granted Plaintiff leave to file a second amended complaint to add a claim against Allegheny County under the Pennsylvania Human Relations Act ("PHRA"). (Docket No. 56 at ¶¶ 4-5; Docket No. 60 at ¶¶ 4-5). After Plaintiff filed a motion for leave to file a third amended complaint, which Defendants opposed, the Court denied the motion, finding that Plaintiff had failed to demonstrate good cause. (Docket No. 56 at ¶¶ 6-8; Docket No. 60 at ¶¶ 6-8).
On August 9, 2015, Plaintiff filed the instant action ("Vay II") and asserted a First Amendment retaliation claim against Allegheny County, William McKain, Karl Williams, Mr. Pilarski, and Mr. Baker. (Docket No. 56 at ¶ 9; Docket No. 60 at ¶ 9). Plaintiff claimed that "'[i]ndividual Defendants acted under color of law in violating Vay's First Amendment rights when they suspended her for 20 + days on August 20, 2013 because of the letter to the County Executive and the newspaper article of August 3, 2013.'" (Docket No. 56 at ¶ 10 (quoting Docket No. 1 at ¶ 35); Docket No. 60 at ¶ 10). In their answer to Plaintiff's complaint, Defendants raised res judicata as an affirmative defense. (Docket No. 56 at ¶ 12; Docket No. 60 at ¶ 12).
In Vay I, Plaintiff claimed that her twenty-six day suspension in August of 2013 was a result of gender discrimination and was received in retaliation for opposing gender discrimination in the workplace. (Docket No. 56 at ¶ 11; Docket No. 60 at ¶ 11). Vay I was transferred to the Honorable Mark A. Kearney on October 30, 2016. (Docket No. 56 at ¶ 13; Docket No. 60 at ¶ 13). Following a jury trial, a verdict was entered in favor of Defendants and against Plaintiff. (See Docket Nos. 367, 368 at Vay I, Civil Action No. 14-769). Plaintiff filed an appeal on March 9, 2017. (See Docket No. 369 at Vay I).
Judge Kearney, a judge for the United States District Court for the Eastern District of Pennsylvania, was appointed by the United States Court of Appeals for the Third Circuit to serve as a visiting judge in the Western District. He requested the assignment of matters that counsel had prepared to proceed to trial.
III. PROCEDURAL HISTORY
Following the trial in Vay I, Defendants filed in this action a motion for summary judgment on the basis of res judicata, a concise statement of material facts and supporting exhibits, and a brief in support of their motion. (Docket Nos. 55, 56, 57). Plaintiff responded with a brief in opposition to the motion for summary judgment, a response to Plaintiff's statement of material facts and supporting exhibits, and a statement of additional facts. (Docket Nos. 59, 60, 62). Defendants filed a reply and a response to Plaintiff's statement of additional facts. (Docket Nos. 66, 67). Plaintiff filed a sur-reply. (Docket No. 68). The Court heard oral argument on June 29, 2017, at which time Plaintiff orally moved to stay this matter pending the appeal in Vay I. (Docket Nos. 72, 73). The Court took Defendant's oral motion under advisement and granted Defendants' request to supplement the record. (Docket No. 72). The Court denied Plaintiff's oral motion to stay on June 30, 2017. (Docket No. 74). On June 30, 2017, Defendants filed their first supplement, which included Additional Exhibits in Support of their Concise Statement of Material Facts, on June 30, 2017. (Docket No. 75). On July 18, 2017, Defendants filed a second supplement. (Docket No. 78).
IV. LEGAL STANDARD
Summary judgment may only be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Pursuant to Rule 56, the Court must enter summary judgment against the party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A motion for summary judgment will only be denied when there is a genuine issue of material fact, i.e., if the evidence is such that a reasonable jury could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). The mere existence of some disputed facts is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986).
In determining whether the dispute is genuine, the court's function is not to weigh the evidence, to determine the truth of the matter, or to evaluate credibility. The court is only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. McGreevy, 413 F.3d at 363; Simpson v. Kay Jewelers, 142 F.3d 639, 643 n.3 (3d Cir. 1998) (citing Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994)). In evaluating the evidence, the court must interpret the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in its favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). As to materiality, the relevant substantive law identifies which facts are material. Anderson, 477 U.S. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. "Factual disputes that are irrelevant or unnecessary will not be counted." Id.
V. DISCUSSION
The parties dispute whether this action is barred under the doctrine of res judicata by Vay I. "Res judicata bars a party from initiating a subsequent suit against the same adversary based on the same cause of action as a prior suit." Marmon Coal Co. v. Dir., Office of Workers' Comp. Programs, 726 F.3d 387, 394 (3d Cir. 2013). For a res judicata defense to succeed, the proponent must establish that: "(1) a final 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 cause of action." Id. (internal quotations omitted). Identifying a "cause of action" for res judicata purposes turns on the "essential similarity of the underlying events giving rise to the various legal claims." Id. (internal quotations omitted). The parties do not dispute that a final judgment on the merits was entered in Vay I and that the same parties or their privities were involved in Vay I as in the instant action. (See Docket Nos. 57, 59). Thus, the issue of res judicata turns on whether the instant action is based upon the same cause of action asserted in Vay I.
The Third Circuit takes "a 'broad view' of what constitutes the same cause of action." Sheridan v. NGK Metals Corp., 609 F.3d 239, 261 (3d Cir. 2010) (quoting Churchill v. Star Enters., 183 F.3d 184 (3d Cir. 1999)). Although there is no simple test to be used, courts look "to whether there is an 'essential similarity of the underlying events giving rise to the various legal claims,'" rather than the specific legal theory involved. Corestates Bank, N.A. v. Huls Am., Inc., 176 F.3d 187, 194 (3d Cir. 1999) (quoting United States v. Athlone Indus., 746 F.2d 977, 984 (3d Cir. 1984)); see also Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991) (explaining that "the term 'cause of action' cannot be precisely defined, nor can a simple test be cited for use in determining what constitutes a cause of action for res judicata purposes") (internal quotations omitted); Davis v. United States Steel Supply, Div. of United States Steel Corp., 688 F.2d 166, 171 (3d Cir. 1982) (noting that res judicata does not rest on "the specific legal theory invoked"). This principle is "in keeping with 'the present trend . . . 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.'" Athlone, 746 F.2d at 984 (quoting JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 0.410 (2d ed. 1983)).
In examining whether there is "an essential similarity of the underlying events," factors to be considered include "' whether the acts complained of were the same, whether the material facts alleged in each suit were the same, and whether the witnesses and documentation required to prove such allegations were the same.'" Lubrizol, 929 F.2d at 963 (quoting Athlone, 746 F.3d at 984). Mere reliance on different statutes in each action, the assertion of different theories of recovery, or the request for different forms of relief does not, in and of itself, render a party's claims different causes of action for res judicata purposes. See Athlone, 746 F.2d at 984; see also Seamon v. Bell Telephone Co., 576 F. Supp. 1458, 1460 (W.D. Pa. 1983) ("[Res judicata] will operate to bar not only identical repetitive suits, but also to prevent the assertion of a different legal theory which arises from the same liability creating conduct, and which the party had reasonable opportunity to present in the original suit.").
In this Court's estimation, it is clear that this action is based on the same events, allegations, and evidence as the other action. Indeed, Plaintiff filed a motion for leave to file a third amended complaint in Vay I, wherein she sought to add a claim under the First Amendment for retaliation. (See Docket No. 96 at Vay I). In support of her motion, Plaintiff stated that Defendants would not be prejudiced because "the events from which the gender discrimination and other claims arose are also the basis from which arises this First Amendment claim[;] Plaintiff is merely raising an additional theory of recovery." (Docket No. 149 at 10 at Vay I). The Court denied Plaintiff's motion on July 21, 2015, finding that she had failed to show good cause, given the facts that she knew at the time the suit was filed. (Docket No. 154 at 6 at Vay I). Plaintiff then filed a Complaint in Vay II on August 9, 2015, alleging claims against Defendants under the First Amendment for retaliation. (Docket No. 1 at ¶¶ 33-35). The facts included in Plaintiff's Complaint in Vay II mirror the facts that she included in her proposed third amended complaint in Vay I. (Compare Docket No. 96-1 at ¶¶ 115-127 at Vay I, with Docket No. 1 at ¶¶ 17-31 at Vay II). Specifically, Plaintiff alleges that she sent a letter to County Executive Richard Fitzgerald and that the Pittsburgh Tribune Review published an article regarding the letter. (Docket No. 1 at ¶¶ 17-18). Plaintiff had a meeting with Defendant Michael Baker about the letter and the newspaper article, at which time "[a] difference of opinion" arose between the two. (Id. at ¶¶ 23-24). Plaintiff was suspended for twenty-six days after the meeting. (Id. at ¶ 25).
Judge Kearney addressed the same facts in resolving Defendants' motion for summary judgment in Vay I. (See Docket No. 278 at Vay I). Indeed, Judge Kearney outlined the facts related to Plaintiff's suspension and explained that Plaintiff sought relief for three discrete acts, including her twenty-six-day suspension. (See id. at 10-11, 17, 19). Judge Kearney concluded that Plaintiff's Title VII and PHRA gender discrimination claims could proceed because there was a genuine dispute of material fact as to whether Allegheny County treated a similarly situated male employee more favorably than Plaintiff when it suspended her for twenty-six days. (Id. at 21-22, 27-29).
The proceedings of the trial in Vay I confirm that this action is based upon the same acts and material facts. Plaintiff used her letter as an exhibit at trial in Vay I. (See Docket No. 56 at ¶ 17 (citing Docket No. 364 at 2 at Vay I); Docket No. 60 at ¶ 17). Further, Judge Kearney addressed Plaintiff's suspension in his final instructions to the jury:
Ms. Vay claims each Defendant -- each of the five -- subjected her to a hostile work environment based on her gender; that Misters Huston, Baker and Allegheny County discriminated against her based on her gender; and, lastly, that Allegheny County retaliated against her -- Allegheny County as her employer -- retaliated against her for complaining about gender-based discriminatory conduct.(Docket No. 379 at 221 at Vay 1). In reviewing the verdict sheet, Judge Kearney stated:
Miss Vay claims the County retaliated against her -- you'll see that on your sheet, on the Allegheny County sheet -- because she made complaints about gender-based discrimination. To prevail on this retaliation claim, Ms. Vay must prove the following by a preponderance of the evidence.
First, she complained to her managers and her Human Resources about gender-based discrimination. Second, she was subjected to a materially adverse action, such as a 26-day suspension, indefinite administrative leave, or termination after the protected conduct took place. Third, there was a causal connection between the materially adverse action and her complaints of gender discrimination.
Going back to the first element, that is complaining to her managers or Human Resources, Ms. Vay need not prove the merits of her complaints of discrimination, but only that she was acting under a reasonable, good faith belief that the County violated her right to be free from discrimination on the basis of her gender.
The second element about being subjected to a materially adverse action, the term 'materially adverse' means that Ms. Vay must show that the 26-day suspension, an indefinite administrative leave, and/or a termination was serious enough that it well might have discouraged a reasonable worker from complaining about gender discrimination.
The third element, the causal connection, that connection may be shown in many ways. For example, you may or may not find there is sufficient connection through timing. That is, the County's action follows shortly after it became aware of Miss Vay's complaints of gender-based discrimination. Causation is, however, not necessarily ruled out by a more extended passage of time. Causation may or may not be proven by antagonism shown toward Ms. Vay or a change in demeanor toward Ms. Vay. The County has given you a non-retaliatory reason for its conduct towards Ms. Vay. If you disbelieve the County's explanations for its conduct, then you may, but need not, find Ms. Vay has proved retaliation.
In determining whether the County's stated reasons for its actions was a pretext or an excuse for retaliation, you may not question the County's business judgment. You cannot find retaliation simply because you disagree with the business judgment of the County or believe it is harsh or unreasonable. You are not to consider the County's wisdom. However, you may consider whether the County's reason is merely a coverup for retaliation.
Ultimately, you and only you must decide whether Ms. Vay has proven by a preponderance of the evidence that her 26-day suspension, her indefinite unpaid suspension, and her termination would not have occurred in the absence of the County's alleged wrongful retaliation for her -- for complaint of gender discrimination towards her.
Ms. Vay alleges Allegheny County discriminated against her when it suspended her for 26 days, put her on indefinite administrative leave, and terminated her employment. For Ms. Vay to recover on this discrimination claim against Allegheny County, she must prove the County intentionally discriminated against her. This means Ms. Vay must prove her gender was a determinative factor in Allegheny County's decision to one of those three -- one of those three actions; that is, suspending her for 26 days, placing her on indefinite administrative leave, or terminating her.
To prevail Ms. Vay must prove both of the following by a preponderance of the evidence. First, Allegheny County engaged in an adverse employment action by suspending Ms. Vay for 26 days, placing her on indefinite administrative leave, and/or terminating her employment; and, second, Ms. Vay's gender was a determinative factor in the County's decision.
Although Ms. Vay must prove that Allegheny acted with the intent to discriminate, Ms. Vay is not required to prove that the County acted with a particular intent to violate her federal or state civil rights. Moreover, Ms. Vay is not required to produce direct evidence of intent such as a statement admitting discrimination. Intentional discrimination may be inferred from the existence of other facts.
Allegheny County has given you non-discriminatory reasons for its suspension of 26 days, placement of Miss Vay on indefinite administrative leave, and termination of Miss Vay's employment. If you do not believe Allegheny County's explanations for its conduct, then you may, but need not, find that Ms. Vay has proven intentional discrimination.(Id. at 239-42). On the verdict sheet, jurors were asked to answer, "Did Allegheny County unlawfully retaliate against Kelly Vay for complaining about discrimination because of her gender?" (Docket No. 367 at 7 at Vay 1). The jurors responded, "NO." (Id.).
In determining whether Allegheny County's stated reasons for its actions was a pretext or excuse, again, as I did a moment ago, you may not question the County's business judgment. You cannot find intentional discrimination simply because you disagree with the business judgment of Allegheny County or believe it's harsh or unreasonable. You are not to consider Allegheny County's wisdom. However, you may consider whether Allegheny County's reason is merely a coverup for discrimination. Also, an employer's failure to abide by its own procedures may demonstrate pretext.
Ultimately, you must decide whether Ms. Vay has proven her gender was a determinative factor in Allegheny County's employment decision. Again, it's worth repeating - I'm sorry - it's worth repeating, determinative factor means the adverse employment action would not have occurred if she had been male rather than female.
In her brief in opposition to Defendants' motion, Plaintiff concedes that the discovery "about the central facts in the First Amendment retaliation case" has already been completed. (Docket No. 59 at 4). At oral argument, Plaintiff's counsel also admitted that, with the exception of William McKain, all of the witnesses in this matter testified in Vay I. Plaintiff's counsel even stated that if she had been successful in Vay I, she would not have pursued this action. Given these circumstances that have been extensively outlined, and taking a "broad view" in its evaluation, see Sheridan, 609 F.3d at 261, the Court finds that Plaintiff's suit derives from the same acts, material facts, and documentation as alleged in Vay I. See, e.g., Burton v. Ozburn Hessey Logistic, 615 F. App'x 84 (3d Cir. 2015) (affirming the District Court's finding that res judicata applied because the plaintiff's retaliation claim was "indisputably connected to the 2012 action in that they arise out of the same employment relationship and derive from the same act of alleged discrimination" and noting that "there is no doubt that Burton could have raised her retaliation allegations in her 2012 complaint"); Jarvis v. Analytical Lab. Servs., 499 F. App'x 137 (3d Cir. 2012) (finding that "[o]n the face of Jarvis' own submissions, the retaliation claim arises from Analytical's rejection of Jarvis' application for employment in 2008—the same event around which the prior litigation against Analytical was centered").
Although the parties did not request a transcript of the proceedings, the Court has been provided with the rough version of the transcript.
Although Plaintiff asserts claims that she did not include in Vay I, she is not entitled to maintain another action merely because she advances new theories of recovery. Seamon, 576 F.Supp. at 1460; see also Sheridan, 609 F.3d at 262 (finding that "the underlying assertions giving rise to each claim [in Sheridan I and Sheridan II] were the same"); Churchill, 183 F.3d at 195 (dismissing under res judicata a second action pleading different legal theories and new facts because of the essential similarity of the underlying events with a prior lawsuit); Baranowski v. Waters, No. 08-CV-544, 2009 U.S. Dist. LEXIS 10007, at *26-27 (W.D. Pa. Feb. 10, 2009) (finding that although the plaintiff's claims were new theories of recovery, they were barred by the doctrine of res judicata). Plaintiff could have included her retaliation claims in Vay I but did not do so until she sought leave to file a third amended complaint. Although the Court denied Plaintiff leave, the doctrine of res judicata precludes her from asserting such claims in this action. See Baranowski, 2009 U.S. Dist. LEXIS 10007, at *27 (citing Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 550 (3d Cir. 2006)).
Plaintiff does not provide any authority supporting her position that this matter is not barred by res judicata. (See Docket Nos. 59, 68). Rather, Plaintiff argues that Defendants' motion should be denied merely because she attempted to consolidate Vay I and Vay II during a status conference with Judge Kearney on October 25, 2016. (Id. at 5; see also Docket No. 62 at ¶ 1). The purpose of the status conference was to schedule trial, and trial was set for January 23, 2017, immediately after the teleconference. (Docket Nos. 255, 256 at Vay I). At oral argument on June 29, 2017, the Court noted that Judge Kearney had agreed to handle cases that were ready for trial. See supra n.1-2. The discovery period in Vay I ended in June 2016, and a briefing schedule as to motions for summary judgment was issued on June 30, 2016. (See Docket Nos. 241, 242, 243 at Vay I). With respect to the teleconference held on October 25, 2016, the Court explained that the minute entry did not reference Plaintiff's attempt to consolidate Vay I and Vay II and that a court reporter was not present at the teleconference. (See Docket Nos. 255, 256 at Vay I).
At oral argument, Plaintiff's counsel referred to Principe v. Ault, 62 F. Supp. 279 (N.D. Ohio 1945), and encouraged the Court to utilize the principle of "legal positivism." Principe, 62 F. Supp. at 283. Principe is not only outside this Court's jurisdiction, but it does not address the doctrine of res judicata. Rather, the issue in Principe was whether the district court had inherent power to grant bail in habeas cases in the absence of a statute expressly denying that power. Id. Accordingly, Plaintiff's counsel's reliance upon Principe is inapposite.
At oral argument, the Court advised the parties that it had reached out to Judge Kearney regarding the teleconference and that he had provided the Court with his personal notes. Judge Kearney's notes reflected that this Court had a related case involving Plaintiff's First Amendment claim and additional Defendants; that this Court had denied Plaintiff's motion for leave to amend her complaint in Vay I to add her claim; and that Plaintiff admitted that she would have no additional damages if she won her discrimination case in Vay I. Judge Kearney's notes provided, in bold, that Defendants did not consent to trying both cases together. Consistent with this Court's prior rulings, Judge Kearney did not consolidate the cases. He entered a trial management order setting forth the deadlines for motions for summary judgment, motions in limine, proposed voir dire, proposed jury instructions, exhibits lists, and trial. (Docket No. 256 at Vay I). Plaintiff did not seek a continuance, and Vay I proceeded to trial.
In October 2016, the parties had not yet completed discovery in this matter, as a Case Management Order was entered on June 7, 2016, and discovery was not scheduled to end until December 4, 2016. (Docket No. 45). Further, this Court does not establish a schedule for the filing of summary judgment motions until after the completion of all discovery. (Id. at ¶ 10). As Defendants point out, despite filing this action on August 9, 2015, Plaintiff never filed a motion to consolidate the two cases with this Court or with Judge Kearney. (See Docket Entries at Vay I and Vay II). Instead, Plaintiff waited until the status conference to set trial in Vay I was held before informally raising the issue of consolidation. Thus, Defendants rightly opposed consolidating Vay I and Vay II.
On September 28, 2016, Plaintiff issued her First Set of Interrogatories and First Request for Production of Documents upon Defendants in this matter. (Docket No. 69).
Given Plaintiff's failure to move to consolidate Vay I and this matter, the Court finds meritless her argument that she was prejudiced in some way by the operation of Federal Rule of Civil Procedure 16 and/or the Order denying her leave to amend the complaint in Vay I. Further, any challenges to that Order could have been raised as a motion for reconsideration, which was not filed, or as part of Plaintiff's appeal of Vay I.
Not only is there no dispute that Plaintiff attempted, informally, to consolidate the cases on October 25, 2016; that Defendants opposed consolidation; and that Judge Kearney denied Plaintiff's attempt, but the issue is not material to whether this matter is barred by the doctrine of res judicata. See FED. R. CIV. P. 56(c) (providing that summary judgment may only be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law"); see also McGreevy, 413 F.3d at 363; Anderson, 477 U.S. at 247-48. Thus, because this action is based on the same events, allegations, and evidence as Vay I, it is barred by the doctrine of res judicata.
As a final matter, Plaintiff has filed a "Motion to Strike Text 'Describing' Exhibit L (ECF 75)" as insufficient or immaterial. (Docket No. 76). Specifically, Plaintiff contends that Defendants' statement that Exhibit L was "not excluded by the court" and that the documents included in Exhibit L "thus were available for either party to use at trial" are "not mere descriptions of an exhibit by rather are conclusions and arguments." (Id.). Plaintiff has also filed objections to the admissibility of Defendants' Exhibit L because it is a chart that Defendants created and was not part of the record in Vay I or in the instant matter. (Docket No. 77). The Court will deny Plaintiff's motion to strike as moot and will overrule her objections to Exhibit L as moot, as it has decided whether this action is barred by the doctrine of res judicata without reference to Defendants' Exhibit L.
Defendants state that Exhibit L is a chart of the Joint Exhibits offered in Vay I. (Docket No. 75). Exhibit 74 was the newspaper article dated August 3, 2013, and Exhibit 113 was the letter to the County Executive dated August 1, 2013. (Docket No. 75-5 at 5, 9). As noted above, Plaintiff used her letter as an exhibit at trial in Vay I. (See Docket No. 56 at ¶ 17 (citing Docket No. 364 at 2 at Vay I); Docket No. 60 at ¶ 17). The newspaper article is not centrally relevant to Plaintiff's claims in the instant matter. Rather, for the reasons extensively outlined by the Court, this action is barred by the doctrine of res judicata because it is based on the same events, allegations, and evidence as Vay I. --------
VI. CONCLUSION
Based on the foregoing, Defendants' Motion for Partial Summary Judgment on Grounds of Res Judicata, (Docket No. 55), is GRANTED. Plaintiff's Motion to Strike Defendants' Supplement, (Docket No. 76), will be DENIED, as moot. An appropriate Order follows.
s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge cc/ecf: All counsel of record.