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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 19-CV-1250 & 20-CV-0122
DEON D. COLVIN, APPELLANT,
V.
HOWARD UNIVERSITY, APPELLEE.
Appeals from the Superior Court of the District of Columbia (CAB-3573-19) (CAB-7929-19)
(Hon. Robert R. Rigsby, Trial Judge) (Hon. Hiram E. Puig-Lugo, Trial Judge)
(Argued April 27, 2021 Decided August 19, 2021)
Deon D. Colvin, pro se.
Zachary I. Shapiro, with whom Nathiya Nagendra, was on the brief, for appellee.
Before EASTERLY, MCLEESE, and DEAHL, Associate Judges.
DEAHL, Associate Judge: Howard University dropped Deon Colvin from its
Political Science PhD program, citing his failure to complete his doctoral degree
within the prescribed seven-year timeframe. Colvin responded by filing suit in D.C.
Superior Court alleging several breaches of contract. That lawsuit was dismissed, 2
so Colvin filed another, and another, and another, with each likewise being
dismissed. This consolidated appeal is from the third and fourth of those dismissed
suits, and it concerns the preclusive effect the various dismissals have on the
subsequent suits. Because each of the contested dismissals was justified by either
collateral estoppel (issue preclusion) or res judicata (claim preclusion), we affirm.
I.
Colvin was first admitted to Howard’s Political Science PhD Program for the
Fall 2004 semester. As provided in Howard’s Graduate School Rules and
Regulations, PhD students are expected to complete their doctoral degree within
seven years, otherwise they are to “be automatically dropped from the program.”
Colvin was therefore expected to complete his doctoral degree by the fall of 2011.
He did not, but neither did Howard automatically drop him from the program. As a
result, Colvin continued working toward his degree for several more years. By 2014,
he was ready to defend his dissertation proposal and he sought admission to
“candidacy” for his PhD degree. Despite it being almost three years past the seven-
year mark, Howard permitted Colvin to re-enroll to defend his dissertation proposal.
He successfully did so and Howard admitted him to candidacy for his PhD degree
in May 2014. Per a separate provision of Howard’s Graduate School Rules and 3
Regulations, Colvin’s PhD candidacy period remained valid for a maximum of five
years.
Two years later, Colvin again sought readmission for the Fall 2016 semester
so he could present and defend his dissertation. This time, however, the Dean of
Howard’s Graduate School denied his request. He instead dropped Colvin from the
PhD program citing several factors: (i) Colvin had far exceeded the seven-year
“expected time-to-degree” requirement; (ii) a number of Colvin’s courses were too
old to count toward fulfillment of Colvin’s graduation requirements; and (iii) Colvin
had previously been given two extensions under the condition that he defend his
dissertation within a certain timeframe, and he failed to meet that condition each
time.
Believing his dismissal from the PhD program was based on factual
inaccuracies—more specifically, that he possessed the requisite number of course
credits to satisfy his degree requirements, and that he was only given one prior
extension, not two—Colvin contested his dismissal via Howard’s informal
grievance process as set out in the Student Handbook. His efforts were unsuccessful.
The Dean stood by his dismissal letter; the Chair of the Department of Political
Science informed Colvin that there was nothing he could do, and explained that the 4
principal reason for Colvin’s dismissal was his “failure to finish and defend [his]
dissertation within the length of time required of all graduate students”; Howard’s
Provost determined that Colvin’s dismissal was “in accordance with . . . program
policies and procedures”; and Howard’s President agreed with the Provost, believing
that the factual inaccuracies claimed by Colvin “provided no additional pertinent
information which would impact the disposition of [Colvin’s] dismissal.” When
Colvin attempted to initiate Howard’s formal grievance process, he was informed
that he could not do so because the Provost had already closed Colvin’s case.
Colvin then sued Howard in D.C. Superior Court. That lawsuit eventually
splintered into four separate suits, which we detail below.
Colvin I
Colvin first filed suit in July 2018 (Colvin I), and the case was assigned to
Judge José M. López. The Colvin I complaint alleged five counts of implied breach
of contract for Howard’s factually inaccurate review of his academic record (Count
I); ouster of Colvin prior to the conclusion of his five-year status as a doctoral
candidate (Count II); failure to allow Colvin to engage in the informal grievance
process (Count III); failure to comply with its grievance procedures when the 5
Provost closed Colvin’s case (Count IV); and failure to allow Colvin to engage in
the formal grievance process (Count V).
Howard moved to dismiss the suit for failure to state a claim under Superior
Court Civil Procedure Rule 12(b)(6). It argued that academic decisions regarding
whether a student has satisfied a school’s academic standards are entitled to judicial
deference and should not be second-guessed absent evidence of arbitrary or
capricious conduct, which Colvin had not alleged. Howard also asserted that
Colvin’s breach of contract claims failed as a matter of law because (i) Colvin could
point to no contractual provision guaranteeing him the full five years of his doctoral
candidacy period, (ii) Howard had complied with its policies when dismissing
Colvin, namely, its seven-year time-to-degree and course-viability policies, and (iii)
Howard complied with its informal grievance procedures, and Colvin abandoned his
right to submit a formal grievance when he appealed his ouster directly to Howard’s
Provost and President.
Colvin opposed the motion. He argued his dismissal was arbitrary and
violated the covenant of good faith and fair dealing implicit in every contract. See
Allworth v. Howard Univ., 890 A.2d 194, 201 (D.C. 2006) (“[A]ll contracts contain
an implied duty of good faith and fair dealing.”) (internal quotation marks omitted). 6
For support, he claimed that his ouster was based on several faulty factual premises
and that he was entitled to remain in the PhD program for the duration of his
five-year candidacy period so long as he could satisfy Howard’s degree
requirements. He also contested Howard’s assertion that it had complied with its
informal grievance process and disputed that he had abandoned his formal grievance
rights by seeking assistance from Howard’s Provost and President.
Judge López granted Howard’s motion to dismiss, albeit without prejudice.
He concluded that Howard’s academic decision to oust Colvin from its PhD program
was entitled to deference so long as there was “no demonstration . . . of improper
motivation or irrational action.” Because Howard’s policies permitted dropping
Colvin from the program after he failed to complete his doctoral degree within the
allotted seven-year time period, Judge López determined that Colvin had not
demonstrated any “improper motivation or irrational action,” and thus failed to state
a claim on which relief might be granted in any of his five breach of contract claims.
Colvin did not file a motion for reconsideration or attempt to amend his
complaint to cure the alleged deficiencies noted by Judge López. Nor did he appeal
the dismissal. 7
Colvin II
Instead of attempting to cure his complaint in Colvin I, Colvin filed a new suit
(Colvin II). The Colvin II complaint was roughly the same as the Colvin I complaint,
alleging the same five counts for breach of contract. 1 The only differences between
the two complaints were factual in nature, as Colvin attempted to bolster his
allegations that Howard relied upon factual inaccuracies when dropping him from
its PhD program. Before Howard responded to the Colvin II complaint, Colvin
voluntarily dismissed his suit under Superior Court Civil Procedure Rule
41(a)(1)(A)(i). He did not provide an explanation for the voluntary dismissal, but
his decision was perhaps prompted by the fact that the same judge who presided over
Colvin I (Judge López) was assigned to preside over Colvin II.
Colvin III
Two days after voluntarily dismissing Colvin II, Colvin initiated a third action
(Colvin III), this time drawing Judge Robert R. Rigsby as the presiding judge. The
1 The Colvin I complaint also raised allegations of fraud and intentional infliction of emotional distress. These claims were omitted from the Colvin II complaint and are not relevant to this appeal so, aside from flagging them here, we do not discuss them further. 8
Colvin III complaint—like the Colvin II complaint—alleged the same five counts
for breach of contract as the Colvin I complaint and was nearly identical to it in
substance. The main differences between the Colvin I and Colvin III complaints
were also of the factual variety, as Colvin fleshed out some facts that were presented
in slightly less-detailed form to Judge López in Colvin I.
Howard filed a motion requesting that Judge Rigsby transfer Colvin III to
Judge López. It argued the Colvin III complaint was “functionally identical” to the
claims “previously adjudicated and dismissed in Colvin I” and accused Colvin of
“garden-variety judge shopping.” Colvin opposed the transfer motion but denied
Howard’s accusations that he was judge shopping. Judge Rigsby denied the motion
to transfer the case to Judge López.
In addition to its motion to transfer, Howard again moved to dismiss the case
for failure to state a claim, but this time it also argued that the dismissal of Colvin I
precluded Colvin III “under the doctrines of res judicata, collateral estoppel, and the
law of the case.” Judge Rigsby rejected Howard’s preclusion arguments, concluding
the various preclusion doctrines were not applicable because Colvin I was dismissed
without prejudice, so there was no final decision on the merits of Colvin’s contract
claims. But he agreed with Howard that the complaint failed to survive a Rule 9
12(b)(6) motion—albeit for different reasons than those Judge López provided in
Colvin I—and dismissed the Colvin III complaint for failure to state a claim.
Although Judge Rigsby’s order did not state whether the dismissal was with or
without prejudice, the case was closed and all future hearings were vacated.
Colvin then filed a motion to reopen Colvin III and for leave to amend his
complaint. In the proffered amended complaint, Colvin sought to add a sixth count
for breach of contract stemming from Howard’s alleged failure to maintain one
uniform degree-requirement manual. According to Colvin, Howard used two
different manuals (a 1979 manual and a 1983 amended version of the 1979 manual)
that detailed different policies regarding which courses could be used to satisfy a
student’s degree requirements, which caused him to be unfairly dropped from the
program. Judge Rigsby denied Colvin’s motions to reopen and to amend,
concluding the amendments would be futile. Colvin noted an appeal to this court,
contesting the dismissal of Colvin III and the denial of his motion to amend.
Colvin IV
Colvin then initiated a fourth action (Colvin IV), drawing Judge Hiram E.
Puig-Lugo as the presiding judge. The Colvin IV complaint was identical to the
proffered amended complaint Colvin was denied leave to file in Colvin III. 10
Howard moved to dismiss the Colvin IV complaint, primarily arguing that
Colvin’s contract claims were barred by res judicata in light of Judge Rigsby’s Rule
12(b)(6) dismissal of Colvin III. Colvin opposed the motion, arguing the Colvin III
dismissal order did not state whether it was with or without prejudice, thus no final
judgment on the merits was issued, making res judicata inapplicable. Judge
Puig-Lugo agreed with Howard that res judicata precluded Colvin’s fourth suit. He
explained that because the claims in Colvin III were the same as those raised in
Colvin IV, and because “Judge Rigsby issued a final judgment on the merits against
[Colvin] on [those claims],” res judicata barred relitigation of the claims in Colvin
IV. To the extent Colvin was alleging any new claims in his Colvin IV complaint,
Judge Puig-Lugo noted that res judicata would still present a barrier because Colvin
could have brought those claims in Colvin III.
Colvin appealed Judge Puig-Lugo’s order to this court, which we then
consolidated with the Colvin III appeal. Appeals from the dismissals in Colvin III
and Colvin IV are now before us. 11
II.
On appeal, Colvin challenges the following trial court orders: (i) the dismissal
of Colvin III; (ii) the denial of his motion for leave to amend the Colvin III complaint;
and (iii) the dismissal of Colvin IV. We discuss each challenge in turn.
A. Dismissal of Colvin III
Judge Rigsby dismissed the Colvin III complaint on its merits, but only after
rejecting Howard’s arguments that various preclusion doctrines barred the claim
from proceeding. While the parties now debate whether Judge Rigsby was right on
the merits of the 12(b)(6) motion, Howard again argues in the alternative that
Colvin III was precluded by the dismissal of Colvin I. We agree. 2 Howard argues
Colvin III is precluded by Colvin I under three different preclusion doctrines: res
judicata (claim preclusion), collateral estoppel (issue preclusion), 3 and the law of the
2 That Howard failed to cross-appeal Judge Rigsby’s adverse preclusion ruling does not bar us from affirming on that basis. See Borger Mgmt., Inc. v. Sindram, 886 A.2d 52, 63-64 (D.C. 2005) (cross-appeal unnecessary for appellee to argue independent basis for affirmance that was rejected by the trial court). 3 The term “res judicata” is sometimes used in its broader sense: as an umbrella term encompassing both claim and issue preclusion. See Migra v. Warren City Sch. Dist. Bd. of Ed., 465 U.S. 75, 77 n.1 (1984) (citing Restatement (Second) of Judgments, Introductory Note before ch. 3 (1982), and 18 WRIGHT, MILLER & 12
case doctrine. We conclude that while Colvin III is not claim-precluded, the question
whether the complaint filed was sufficient to state a claim is issue-precluded by
Colvin I. Because of that, we need not determine whether the law of the case
doctrine applies.
1. Claim preclusion
When a court renders a final judgment on the merits of a cause of action, claim
preclusion creates an absolute bar to relitigating that cause of action between the
same parties. Shin v. Portals Confederation Corp., 728 A.2d 615, 618 (D.C. 1999).
At first glance, claim preclusion would seem to apply here. After all, (1) the parties
in Colvin I are the same as those in Colvin III; (2) the two complaints raise the same
five breach of contract claims; and, as Howard points out, (3) Judge López’s
dismissal was a final appealable judgment in the sense that the “dismissal of a
complaint, even without prejudice, is sufficiently drastic to be deemed final, and
therefore appealable.” Perry v. District of Columbia, 474 A.2d 824, 825-26 (D.C.
1984). But to take that third step would be a mistake. We have never equated finality
COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 4402 (1981)). “To avoid confusion, we employ the more modern terminology, referring to . . . res judicata as ‘claim preclusion’ and collateral estoppel as ‘issue preclusion.’” Smith v. Jenkins, 562 A.2d 610, 612 n.3 (D.C. 1989). 13
for appealability purposes with finality for claim preclusion purposes, and it would
be an error to do so.
Whether a judgment is sufficiently final to permit an appeal is a different
question from whether it is sufficiently final to have claim-preclusive effects. While
there is some “overlap in the purposes of requiring finality for appeal and for
preclusion, it is clear that definitions of finality cannot automatically be carried over
from appeals cases to preclusion problems.” 18A WRIGHT, MILLER & COOPER,
FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 4432 (3d ed. 2021); see also
Restatement (Second) of Judgments § 13 cmt. b (1982) (rejecting premise that
“finality for appellate review is the same as finality for purposes of [claim
preclusion].”). Here, the Colvin I dismissal was not final for claim preclusion
purposes because it was without prejudice.
Dismissals without prejudice are not final for claim preclusion purposes
because a dismissal without prejudice “does not determine the merits” of the
underlying claim(s). Interdonato v. Interdonato, 521 A.2d 1124, 1131 n.11 (D.C.
1987). Where there is no final judgment on the underlying merits of a cause of
action, claim preclusion is inapposite. See, e.g., id. (when dismissal does not
determine the merits, claim preclusion does not apply); Thoubboron v. Ford Motor 14
Co., 809 A.2d 1204, 1210 (D.C. 2002) (“[A] dismissal without prejudice has no res
judicata effect.”); Shin, 728 A.2d at 618 (“[A] dismissal of a claim without prejudice
does not bar a subsequent suit of issues arising out of the same cause of action.”);
Pipher v. Odell, 672 A.2d 1092, 1095 (D.C. 1996) (“[A] dismissal without prejudice,
by definition, does not bar a subsequent suit.”); Evans v. Schlein, 51 A.2d 472, 474
(D.C. 1946) (“The effect of the dismissal of a suit ‘without prejudice’ is to finally
dispose of that particular suit, but it does not operate as a bar to a new suit on the
same cause of action.”). 4
Because Judge López’s Colvin I dismissal was without prejudice, it was not a
final judgment on the substantive merits of Colvin’s breach of contract claims, but a
ruling that he had insufficiently pled those claims. See Dozier v. Ford Motor Co.,
702 F.2d 1189, 1194 (D.C. Cir. 1983) (“The usual meaning of [without prejudice]
. . . is ‘without prejudice as to the substantive cause of action.’”) (quoting In re
4 That is not to say that a dismissal without prejudice might never become a final judgment on the merits of the underlying claim(s). For example, had Judge López’s dismissal without prejudice in Colvin I provided a specified time period in which Colvin could file an amended complaint, and Colvin then failed to meet that deadline, we might then treat the dismissal as being with prejudice and having claim-preclusive effects. See, e.g., Hoffman v. Nordic Naturals, Inc., 837 F.3d 272, 279-80 (3d Cir. 2016) (finding claim preclusion applied where appellant elected not to amend his complaint within the timeframe provided by the trial court, but instead filed a new action). Howard never argued that any express or implied deadline for Colvin to file an amended complaint in Colvin I had passed. 15
Kauffman Mut. Fund Actions, 479 F.2d 257, 267 (1st Cir. 1973)). That meant Colvin
was permitted to amend his complaint or file a new action on the same underlying
claims. Given the lack of finality in the relevant sense, Colvin I did not have claim-
preclusive effect.
2. Issue preclusion
Issue preclusion is another matter. 5 It prevents not the relitigation of a
particular claim, but the relitigation of a particular issue decided in a prior action.
See Davis v. Davis, 663 A.2d 499, 501 (D.C. 1995). This case involves defensive
5 There are two different types of issue preclusion: collateral estoppel, which occurs when the second action involves a different claim, and direct estoppel, which occurs when the second action involves the same claim. See Restatement (Second) of Judgments § 27 cmt. b (1982) (“If . . . the second action is brought on a different claim, . . . preclusion is sometimes designated as collateral estoppel.”); WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 4402 (3d ed. 2021) (stating that direct estoppel occurs “whenever a first suit was ended in a manner that did not give rise to claim preclusion, but that did warrant preclusion of a specific issue in a later action on the same claim”); id. § 4418 (defining and discussing direct estoppel). Howard uses the term collateral estoppel to describe the type of issue preclusion at play here, but direct estoppel is the more accurate term because the claims in Colvin III are the same as those raised in Colvin I. The difference is semantic only, see 18 WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 4418 (3d ed. 2021) (“[T]he traditional distinction between direct and collateral estoppel should not of itself control the answer to any particular question of issue preclusion.”), but to avoid any confusion, we use the broader term, “issue preclusion.” 16
issue preclusion, which is “when a defendant seeks to prevent a plaintiff from
relitigating an issue the plaintiff has previously litigated unsuccessfully in another
action against the same or a different party.” United States v. Mendoza, 464 U.S.
154, 159 n.4 (1984). We review a trial court’s application of defensive issue
preclusion de novo. Whiting v. Wells Fargo Bank, 230 A.3d 916, 926 (D.C. 2020).
Unlike with claim preclusion, whether a dismissal has issue-preclusive effects
does not depend on if it was with prejudice. Restatement (Second) of Judgments
§ 13 cmt. d (1982) (“[A]n adjudication that does not bar the plaintiff from
maintaining another action against the defendant on the same claim” may yet trigger
“issue preclusion in another action between the parties on the same or a different
claim as to issues that were decided as a basis for the judgment.”); 7 WRIGHT &
MILLER, FEDERAL PRACTICE AND PROCEDURE: TRIALS § 2373 (4th ed. 2021) (“A
dismissal without prejudice . . . ha[s issue-preclusive] effect for issues actually
litigated in the first action.”); 6 Deutsch v. Flannery, 823 F.2d 1361, 1364 (9th Cir.
1987) (“It matters not that the prior action resulted in a dismissal without
prejudice.”). What matters is that (1) “the issue in the new case . . . was actually
6 See also 18 WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 4418 (3d ed. 2021) (issue preclusion may arise “from dismissal of a first action on grounds that do not go to the merits of the claim presented and that are not intended to preclude a second action”). 17
litigated and decided in the prior case,” (2) “by a final and valid disposition on the
merits,” (3) “after a full and fair opportunity for litigation by the same parties or their
privies,” (4) “under circumstances where the determination was essential to the
judgment, and not merely dictum.” Smith v. Jenkins, 562 A.2d 610, 617 (D.C. 1989);
Davis, 663 A.2d at 501. 7
That is the case here. Colvin I squarely addressed whether Colvin’s contract
claims, as pled, articulated a legal basis on which relief could be granted. Colvin III
raised the same issue because the complaint had not materially changed. The issue
decided in Colvin I is thus the same as the issue presented to Judge Rigsby in Colvin
III. See Deutsch, 823 F.2d at 1364 (applying issue preclusion where differences
between first and second complaints “lack[ed] substantive significance”); Bachman
v. Bachman, 997 S.W.2d 23, 26 (Mo. Ct. App. 1999) (stating that a dismissal without
prejudice for failure to state a claim does not “permit refiling of a petition previously
determined not to state a claim”). Had the Colvin III complaint pled new claims or
pled new facts addressing the deficiencies in the Colvin I complaint, our conclusion
7 The Restatement (Second) of Judgments Ch. 3, Topic 2, Title E Introductory Note (1982) recognizes several potential exceptions to the application of issue preclusion even when these four criteria are satisfied. Colvin does not argue that any of these exceptions apply so we do not consider them or the extent to which we follow the Restatement’s view regarding those potential exceptions. 18
would likely be different. But it did neither. Colvin III did not raise any new claims,
and the few factual alterations in the Colvin III complaint did not materially alter
what was already presented and rejected by Judge López in Colvin I. The first prong
(the issue in the new case was litigated and decided in the prior case) is therefore
satisfied.
The other elements of issue preclusion are also met. The Colvin I dismissal
was rendered after a full and fair opportunity for litigation by the same parties
attempting to litigate the sufficiency of the Colvin III complaint; the issue whether
the Colvin I complaint was sufficient to withstand a Rule 12(b)(6) motion was
essential to the Colvin I dismissal order; and the Colvin I dismissal resulted in a final
and valid judgment on the merits of the sufficiency of the Colvin I complaint. See
Davis, 663 A.2d at 501 (listing elements for issue preclusion). Only the last point
warrants elaboration.
As we recognized in Davis, the Restatement (Second) of Judgments § 13
(1982) instructs that “for purposes of issue preclusion[,] ‘final judgment’ includes
any prior adjudication of an issue that is determined to be sufficiently firm to be
accorded conclusive effect.” 663 A.2d at 503 (ellipses omitted). Although Colvin I
was dismissed without prejudice and (as explained above) is therefore without 19
claim-preclusive effect, Judge López’s determination that the Colvin I complaint
could not withstand a Rule 12(b)(6) motion was sufficiently firm for issue preclusion
purposes. The parties fully briefed and submitted their Rule 12(b)(6) arguments to
the trial court; Judge López issued a detailed order explaining why the complaint did
not survive Howard’s Rule 12(b)(6) motion; and the dismissal was appealable to this
court, Perry, 474 A.2d at 825-26.
The dismissal of Colvin I was therefore final for purposes of issue preclusion.
This outcome aligns with the Restatement’s view, supra cmt. g, and the path taken
by other jurisdictions where a dismissal without prejudice was given
issue-preclusive effect in a subsequent action. See, e.g., Germain Real Estate Co.,
LLC v. HCH Toyota, LLC, 778 F.3d 692, 696 (8th Cir. 2015) (applying Arkansas
law); Garcia v. Prudential Ins. Co. of Am., 293 P.3d 869, 873-74 & n.7 (Nev. 2013);
Dema v. City of Mesa, 338 F. App’x 596, 597 (9th Cir. 2009) (applying Arizona
law); West Coast Mgmt. & Cap., LLC v. Carrier Access Corp., 914 A.2d 636, 643-45
(Del. Ch. 2006); Rodriguez v. Dep’t of Corr., 29 P.3d 401, 405 (Idaho 2001);
Deutsch, 823 F.3d at 1364-65. 20
B. Leave to Amend Colvin III
After the dismissal of Colvin III, Colvin requested that Judge Rigsby grant
him leave to file an amended complaint. 8 Judge Rigsby denied this request as futile,
which Colvin now claims was an abuse of discretion. We disagree.
Although Superior Court Civil Procedure Rule 15(a)(3) instructs that leave
to amend “should [be] freely give[n],” it is not required if the amendment would be
futile. Miller-McGee v. Wash. Hosp. Ctr., 920 A.2d 430, 436 (D.C. 2007). It would
have been here. The amended complaint sought to add a new claim for breach of
contract, stemming from the alleged existence of two conflicting degree requirement
manuals used by Howard. 9 Under the earlier manual, Colvin argues all of his courses
dating back to 2004 were viable toward fulfilling his PhD requirements, whereas
under the later manual that Howard incorrectly applied to him, his courses from 2004
8 Because Colvin had already filed an amended complaint in Colvin III as a matter of course under Superior Court Civil Procedure Rule 15(a)(1), and because Howard did not consent to the amendment, Colvin was required to seek leave from the court. See Super. Ct. Civ. R. 15(a)(3). 9 Colvin also claims the amended complaint provided additional facts that further demonstrated his dismissal was improper. But he fails to explain how these new facts materially altered his complaint. On our read, the additional facts merely add details to those that were already pled and rejected in Colvin I and the initial Colvin III complaint. 21
to 2006 were not viable. Judge Rigsby found that discrepancy immaterial, and thus
any amendment futile, because under both versions of the manual Colvin “had seven
(7) years in which to complete the program; [Colvin] did not; and pursuant to policy
[Colvin] was aware of, [Howard] dismissed him from the program.”
We agree that the proposed amendment would have been futile, though we
note an additional and independent reason why that is so: Colvin raised this same
argument—that Howard should have applied the earlier degree manual in
determining which of his older courses remained viable—in his opposition to the
motion to dismiss in Colvin I. Judge López found it did not save his claims from
dismissal, and Colvin did not contest that finding (either by filing a motion to
reconsider or appealing the judgment to this court). Judge Rigsby’s conclusion in
Colvin III that it would have been futile to amend the complaint to rely on the earlier
degree requirement manual was thus compelled by the issue-preclusive effects of
Colvin I, consistent with our analysis in Part II.A.2. Repackaging the argument as a
standalone claim, as opposed to a gloss on his preexisting claims as he had presented
it in Colvin I, does not get Colvin around the issue preclusion bar. 22
C. Dismissal of Colvin IV
Judge Puig-Lugo dismissed the Colvin IV complaint on the basis that the
causes of action alleged therein were claim precluded by Colvin III. Because we
affirm the dismissal of Colvin III, we agree. 10
Unlike Colvin I, Colvin III was dismissed with prejudice. When a Rule
12(b)(6) dismissal is made with prejudice, it is considered a final judgment “on the
merits and is accorded [claim-preclusive] effect.” Ashton Gen. P’ship, Inc. v.
Federal Data Corp., 682 A.2d 629, 632 n.2 (D.C. 1996) (internal quotation marks
omitted); see also 7 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE:
TRIALS § 2373 (4th ed. 2021) (stating that a “dismissal with prejudice normally will
act as a bar to a subsequent action between the same parties”). Colvin IV, which is
identical to the amended complaint Colvin sought leave to file in Colvin III, is
therefore barred by claim preclusion. To the extent any new claims were added to
the complaint filed in Colvin IV—which is questionable given that the claims raised
10 Had we reversed the dismissal of Colvin III, claim preclusion could not have applied. See Adams v. Jonathan Woodner Co., 475 A.2d 393, 397 (D.C. 1984) (“[A] judgment based upon [issue preclusion] or [claim preclusion] is no longer valid when the decision upon which the court relied in applying either of the doctrines has been reversed.”). 23
in the Colvin IV complaint are identical to those raised and rejected as futile in
Colvin’s motion to amend the Colvin III complaint—those claims would nonetheless
be claim-precluded because they could have been raised in Colvin III. See Patton v.
Klein, 746 A.2d 866, 870 (D.C. 1999) (claim preclusion “operates to bar in the
second action not only claims which were actually raised in the first, but also those
arising out of the same transaction which could have been raised”).
Colvin correctly notes that Judge Rigsby’s order in Colvin III does not state
whether it is with or without prejudice. But Superior Court Civil Procedure Rule
41(b)(1)(B) states that “[u]nless the dismissal order states otherwise or as provided
elsewhere in these rules, a dismissal by the court—except a dismissal for lack of
jurisdiction or for failure to join a party under Rule 19—operates as an adjudication
on the merits.” Because “‘an adjudication on the merits’ is synonymous with a
dismissal with prejudice,” a trial “court that dismisses a case under Rule 12(b)(6)
without stating whether it is with or without prejudice operates as a dismissal with
prejudice.” Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 132 (D.C. Cir. 2012)
(Kavanaugh, J., concurring) (citing Semtek Int’l Inc. v. Lockheed Martin Corp., 531
U.S. 497, 505 (2001)); see also Wagshal v. Rigler, 711 A.2d 112, 114 n.6 (D.C.
1998) (“[T]he presumption in most dismissals is that they operate ‘as adjudications
upon the merits,’ that is, with prejudice.”) (quoting Super. Ct. Civ. R. 41(b)); 7 24
WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: TRIALS § 2373 (4th ed.
2021) (“If the court does not specify that the dismissal is without prejudice, and the
basis for it comes within the terms of the final sentence of [Federal] Rule [of Civil
Procedure] 41(b), it will be treated as being with prejudice.”). 11
There is nothing in the Colvin III dismissal order to suggest Judge Rigsby
intended for it to be without prejudice. In fact, the order instructed that the case be
closed and that all future hearings be vacated, strongly suggesting that he intended a
dismissal with prejudice. We therefore have no reason to depart from the
presumption that it was a dismissal with prejudice.
III.
The orders of the Superior Court are affirmed.
So ordered.
11 Superior Court Civil Procedure Rule 41(b)(1)(B) is substantially similar to its federal counterpart. See Comment to 2017 Amendments on Super. Ct. Civ. R. 41 (noting differences between the federal and local rule, none of which are applicable here). We may therefore “look to federal court decisions interpreting the federal rule as ‘persuasive authority in interpreting the local rule.’” Goldkind v. Snider Bros., Inc., 467 A.2d 468, 472 (D.C. 1983) (quoting Vale Props., Ltd. v. Canterbury Tales, Inc., 431 A.2d 11, 13 n.3 (D.C. 1981)).