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Tracy Jenson v. Jerry Mellody

August 23, 2011

TRACY JENSON, PLAINTIFF,
v.
JERRY MELLODY, JAMES WHITLOW, BRETT DAEE, LAWRENCE BASKIR, JOAN STENTIFORD SWYERS, RYAN SMITH, PAUL RINALDI, MARGUERITE GRAF, JOHN CARR, RUTH MARLIN, VENTRIS GIBSON, RANDY BABBITT, TAMI WRIGHT, STEPHEN GAFFIN, ANTHONY TISDALL, JEFFREY SUMBERG, DEFENDANT.



The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

Now pending before the Court is Defendants' Motion to Dismiss (Docket No. 8), Plaintiff's Motion to Dismiss Defendant's Attorney (Docket No. 12)*fn1 and Defendants' Motion for a Pre-filing Order (Docket No. 19). Having thoroughly reviewed the record, and heard oral arguments of the parties on July 20, 2011, the Court enters the following Order.

I.

BACKGROUND

Plaintiff Tracy Jenson ("Jenson") is a former Federal Aviation Administration ("FAA") air traffic controller seeking to recover earnings lost due to the FAA's alleged non-compliance with pay regulations, resulting in a failure to provide him with a two-step pay increase when he transferred to higher level airport facility due to a delayed transfer as part of an FAA privatization plan. During his employment with the FAA, Jenson was represented by the National Air Traffic Controllers Association ("NATCA"), which negotiated a collective bargaining agreement with the FAA.

In this action, Jenson makes various conspiracy claims against the named defendants, whom he claims "has failed to correct [the] illegal deprivation of pay raises and has participated in the continuance of the violation of . . . federal laws." Complaint, 4 (Docket No. 2). Jenson does not specifically identify who each Defendant is in relation to the litigation, or which defendant, if any, was properly served.

On October 25, 2011, counsel for defendants Ryan Smith, Paul Rinaldi, Marguerite Graff, John Carr and Ruth Marlin ("NATCA Defendants" or "Defendants") made an appearance and filed a motion to dismiss. (Docket Nos. 6--8). Later, on March 25, 2011, the NATCA Defendants also requested that a pre-filing order be entered against Jenson requiring him to obtain leave of the Court before filing any additional actions against its officers and/or employees in this District. (Docket No. 20).

Jenson is not unfamiliar with the Courts, having filed twelve other actions relating to recovery of the same lost wages. See National Air Traffic Controllers Association v. Pena, et al., U.S. Dist. Court, Northern Dist. of Ohio Case No. 1:94-cv-00547-JG (case closed 03/02/1998); Brodowy et al. v. United States, U.S. Court of Federal Claims Case No. 1:05-cv-00961-LMB (case closed 07/11/2006); Jenson v. FAA, U.S. Dist. Court, Dist. of Columbia Case No. 1:07-cv-00359-RWR (case closed 06/29/2007); Jenson v. Babbitt, et al., U.S. Dist. Court, Dist. of Columbia Case No. 1:10-cv-01071-ABJ; Jenson v. United States, U.S. Court of Federal Claims Case No. 1:10-cv-00598-EGB (case closed 03/31/2011); Jenson v. U.S. Depart. of Justice, et al., U.S. Dist. Court, Dist. of Idaho Case No. 2:11-cv-00218-LMB; Jenson v. Baskir, et al., U.S. Dist. Court, Dist. of Idaho Case No. 2:11-cv-00219-LMB; Jenson v. Emerson, et al., U.S. Distr. Court, Dist. of Columbia Case No. 1:11-cv-00999-ABJ; Jenson v. Carr, U.S. Dist. Court, Middle Dist. of Florida Case No. 8:11-cv-01277-RAL-TGW (case closed 06/10/2011); Jenson v. Carr, U.S. Dist. Court, Middle Dist. of Florida Case No. 8:11-cv-01396-RAL-AEP (case closed 07/20/2011); Jenson v. U.S. Office of Personnel Management, U.S. Dist. Court, Dist. of Columbia Case No. 1:11-cv-01180-ABJ; and Jenson v. Carr, U.S. Dist. Court, Western Dist. of Washington Case No. 2:11-cv-01222-RSL; See also Jenson v. Department of Transportation, Merit Systems Protection Board Case No. SE-344303-0268-I-1 (case closed May 26, 2004); Jenson v. Department of Transportation, Federal Aviation Admin., DOT Complaint No. 2006-20012-FAA-02 (case closed March 1, 2006); National Air Traffic Controllers Association, Federal Labor Relations Authority Case No. CH-CO-100033 (case closed March 19, 2010).

II.

Motion to Dismiss In their Motion to Dismiss (Docket No. 8), Defendants argue that Jenson's claims are barred by the doctrines of collateral estoppel and res judicata. Defendants argue that Jenson has litigated the same claims in numerous federal courts and administrative proceedings. Defendants further argue that the instant action is "at least the twelfth legal proceeding initiated by Plaintiff Tracy Jenson since 2003 seeking redress for the same alleged injuries as reference in his Complaint." Motion to Dismiss, 1 (Docket No. 8). Notably, Jenson has filed two related actions that are now pending in this court. See Jenson v. U.S. Dept. of Justice, Case No. 2:11-cv-00218-LMB; Jenson v. Baskir, et al., Case No. 2:11-cv-00219-LMB. Defendants argue that all of the referenced actions seek redress for the same alleged damages and as such, Jenson should be precluded pursuing them again here.

Jenson responds that this action should not be precluded for several reasons. First, Jenson argues that there have been no previous actions filed against the NATAC Defendants seeking money from personal income. Response, 1--2 (Docket No. 12) Jenson concludes that "[t]he prior cases ... have NOTHING TO DO with this case." Id. Jenson reasons that the actions referenced in Defendants' Motion to Dismiss concern being put in an improper pay band, whereas this case concerns being deprived of pay raises. Notably, at the July 20, 2011, hearing, Jenson admitted that all of the referenced actions, including those filed subsequent to this case concern the same operative facts and lost wages.

A. Claim Preclusion

Claim preclusion, or res judicata, prevents parties from re-litigating causes of action which were finally decided in a previous suit. Claim preclusion "insures the finality of decisions, conserves judicial resources, and protects litigants from multiple lawsuits. . . . It is consistent with these principles to permit a court which has been apprised by [a party] of an earlier decision . . . to examine the [preclusive] effect of that prior judgment sua sponte." McClain v. Apodacai, 793 F.2d 1031, 1032-33 (9th Cir. 1986). Claim preclusion applies when there is "(1) an identity of claims; (2) a final judgment on the merits;*fn2 and (3) identity or privity between parties." Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001).

Jenson previously filed a suits naming defendant John Carr (Jenson v. Carr, 8:11-cv-01277-RAL-TGW, Mid. Dist. Of Florida; Jenson v. Carr II, Mid. Dist. Of Florida, 8:11-cv-01396-RAL-AEP; Jenson v. Carr III, West. Dist. Of Washington, 2:11-cv-01222-RSL), defendant Paul Rinaldi (Jenson v. NATCA, East. Dist. Of Washington, 2:10-cv-00069-RMP) but not defendants Ryan Smith, Marguerite Graff, and Ruth Marlin. However, Jenson has previously filed claims against the NATCA, of whom all the NATCA Defendants are a part. In all of the above referenced cases, as here, regardless of the named Defendants ...


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