United States District Court, Western District of Virginia, Roanoke Division
James C. Turk Senior United States District Judge
This matter is before the Court on Defendant Ivan Mitchell's Motion to Dismiss, ECF No. 6, and Plaintiff Addison's Motion to Deny Dismissal. ECF No. 11. In his Complaint, Addison alleges that Defendants breached a union contract and discriminated against him when they did not select him for a promotion. Each party has filed a response in opposition to the opposing party's motion and the case is now ripe for disposition. Because Addison has previously filed an almost identical lawsuit against these same Defendants, and that lawsuit was dismissed, the Court concludes that res judicata bars the present suit. The Court thus grants Mitchell's Motion to Dismiss, denies Addison's Motion to Deny Dismissal, and dismisses claims against Volvo Trucks because it was not served within the 120-day requirement, or indeed, at all.
I. FACTS AND PROCEDURAL HISTORY
The Complaint makes the following allegations:
On or about July 20, 2007, the defendant Volvo Trucks North America (Volvo Group) and/or its employee Ivan Mitchell willfully and intentionally breached the terms of the contract agreement that it had with the United Auto Workers Union for Salaried Employees. The defendants breached the contract by changing the job description requirements within the contract, without the approval of the Union, in [sic] place a White male employee with lesser qualifications and seniority in a position in which the Plaintiff was the senior most qualified candidate. After complaining, the defendant(s) retaliated against the Plaintiff by terminating his employment on July 27, 2007.
By reason of such unlawful breach of contract, which catastrophically derailed the career of the Plaintiff, the Plaintiff demands an award in the amount of $25, 000, 000.00. An additional $25, 000, 000.00 is demanded for the pain and suffering the Plaintiff and his family have endured, and continue to endure to this day, as a result of being unlawfully terminated from a lucrative position and being kept from an even more lucrative position of employment. As a result of the defendant(s) breach of contract and subsequent wrongful dismissal of the Plaintiff, the Plaintiff has been unable to gain stable and adequate employment. Consequently, the Plaintiff respectfully requests the court to award the Plaintiff additional damages, to be determined by the court, in order to punish the defendant(s) for such unlawful and egregious business practices.
ECF No. 1, Compl. at 1. These allegations bear a striking resemblance to those in a suit Addison filed in this district in 2009. In that complaint he alleged:
Between June 1, 2007 and July 26, 2007, the defendant Volvo Trucks North America (Volvo Group) and/or its employees Ivan Mitchell, John Pennington and David Lilly willfully and systematically conspired to discriminated [sic] against the Plaintiff, with respect to the terms, conditions, and privileges of his employment, because of race and color. Such discriminatory acts consisted of the following:
1. Threats of intimidation and unwarranted disciplinary action against the Plaintiff in the form of a “Last Chance” letter to prevent and discourage the Plaintiff from applying for a position of promotion, in which the Plaintiff was the senior most qualified candidate.
2. Blatant discrimination against the Plaintiff and disregard for the language of the UAW Contract Agreement, the defendant(s) changed the language of the posted job description in order [to] put an unqualified White male in the position in which the Plaintiff was the senior most qualified candidate.
3. After Plaintiff complained that he felt that he was not awarded and promoted into the position in which he had applied and of which he was the senior most qualified, because he was Black, the defendant(s) retaliated against the Plaintiff by conjuring up a reason to terminate his employment.
By reason of such unlawful treatment, the Plaintiff demands an award in the amount of $25, 000, 000.00 for discrimination and violation his Civil Rights. An additional $25, 000, 000, 00 for the pain and suffering the Plaintiff and his family have endured after being wrongfully and unlawfully terminated from his lucrative position of employment at a time when the Nation was entering into its worst economic downturn since the great depression, for being retaliated against and having suffered serious damage to his reputation and credibility, after being wrongfully labeled as a trouble maker and insubordinate employee, and finally $50, 000, 000.00 in damages to punish the Defendant (s) for such unlawful and egregious discriminatory practices against the Plaintiff and others, which have gone unpunished for many, many years.
ECF No. 7-1, Ex. 1 at 2-3; see also Addison v. Volvo Trucks North Am. et al., No. 7:09-cv-00088, ECF No. 1 at *2-3 (W.D. Va. March 19, 2009) (“First Suit”). Addison filed his First Suit in March 2009 (First Suit, ECF No. 1), submitted a response to the court in connection with a motion on August 27, 2009 (First Suit, ECF No. 19), and then did not communicate with either the court or the defendants for over five months. Defendants attempted to schedule Addison's deposition with him, but after their unsuccessful attempts, they served a notice of deposition on October 21 for a December 8 deposition. After Addison failed to attend the deposition,  the defendants moved to dismiss the case on December 13, 2009. First Suit, ECF No. 22. The magistrate judge issued an order on January 13, 2010 for Addison to show cause why the case should not be dismissed, directing him to respond to the order within 20 days. First Suit, ECF No. 24.
When Addison did not respond to the order to show cause, Judge Wilson dismissed the case on February 3. ECF No. 25. Judge Wilson did not specify whether the case was dismissed with or without prejudice. Just nine days later on February 12-contacting defendants or the court for the first time in over five months-Addison filed an “Appeal of Case Dismissal and Motion to Reinstate Case.” First Suit, ECF No. 26. In that filing, Addison explained that his address had changed and he claimed not to have received the order to show cause. Id. He did not deny having ...