by Michael Fox
The first time around plaintiff filed a race discrimination claim. Two years later, "after discovery was complete, expert witness disclosures had passed and summary judgment motions were fully briefed, Mpoyo sought leave to amend his complaint to include FMLA and FLSA claims." That leave was denied and the grant of summary judgment on the race claim and the failure for leave to amend were affirmed by the 9th Circuit in an earlier appeal.
Nothing if not persistent, plaintiff refiled the FLSA and FMLA claims as a separate lawsuit. Although granting that not all elements that are considered for res judicata necessarily favored dismissal, the Court found that certainly the matters arose out of the same nucleus of operative fact:
Because both sets of Mpoyo’s claims arise from Litton’s conduct while Mpoyo was an employee and specifically from the events leading to his termination, his claims relate to the same set of facts. Furthermore, the Title VII, FLSA and FMLA claims form a convenient trial unit that discloses a cohesive narrative of an employee-employer relationship and a controversial termination. This subsequent action “arises from the same transaction, or series of transactions as the original action” and therefore satisfies the first criterion.
With that, the court felt comfortable in joining the "First, Second, Third, Fifth and Eighth Circuits" which "bar under res judicata the subsequent filing of claims denied leave to amend." Mpoyo v. Litton Electro-Optical Systems (9th Cir. 12/5/05) [pdf].