UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) ALLEGRA D. HEMPHILL, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-4 (RMC) ) KIMBERLY-CLARK CORPORATION ) and PROCTER & GAMBLE COMPANY, ) ) Defendants. ) )
MEMORANDUM OPINION
This case is the latest chapter in pro se Plaintiff Allegra D. Hemphill’s never-ending
litigation against Kimberly-Clark Corporation and Procter & Gamble Company. Ms. Hemphill has filed
numerous patent infringement lawsuits against Defendants, none of which has been successful. Citing
Federal Rule of Civil Procedure 60(b)(3) and (b)(6), Ms. Hemphill alleges in her Amended Complaint
that Defendants deceived the Court in her prior patent infringement case. See Am. Compl. ¶ 1 [Dkt.
# 3]. The Court already has rejected such accusations against Defendants as “baseless.” See 3/10/2008
Order in Case No. 07-1236 [Dkt. # 26] at 2. Accordingly, the Court finds that Plaintiff’s claims are
barred by res judicata, and it will grant Defendants’ Joint Motion to Dismiss [Dkt. # 13].
I. BACKGROUND
On December 10, 1985, Ms. Hemphill was issued a patent (United States Patent No.
4,557,720 (“the ‘720 patent”)) for a “vaginal swab.” The ‘720 patent describes a disposable vaginal
swab or refresher meant either to cleanse or treat the vaginal area with fragrances, medications,
germicides, or deodorants. The ‘720 patent is comprised of two independent claims (hereinafter,
“Claim 1” and “Claim 2”). In March 1999, Ms. Hemphill sued Johnson & Johnson, Inc. for alleged infringement
of the ‘720 patent in the United States District Court for the District of Maryland. Ms. Hemphill alleged
that McNeil-PPC, a subsidiary of Johnson & Johnson, Inc., had infringed Claim 2. The accused
products were McNeil-PPC’s sanitary napkins and adult incontinence products sold under the Stayfree,
Carefree, and Serenity product lines. The Maryland District Court granted summary judgment of non-
infringement for the defendant. Hemphill v. McNeil-PPC, Inc., 134 F. Supp. 2d 719, 725-29 (D. Md.
2001). The Federal Circuit affirmed the District Court in all respects. Hemphill v. McNeil-PPC, Inc.,
No. 01-1391, 2001 WL 1504561 (Fed. Cir. Nov. 27, 2001).
On November 18, 2002, Ms. Hemphill sued Defendants, Kimberly-Clark Corporation
and Procter & Gamble Company, for alleged infringement of Claim 1 of the ‘720 patent in the United
States District Court for the District of Maryland. The accused products were Defendants’ sanitary
napkin and adult incontinence products sold under the brand names Kotex, Always, and Poise. The
Maryland District Court granted summary judgment in favor of Defendants. Hemphill v. Procter &
Gamble Co., 258 F. Supp. 2d 410, 416-18 (D. Md. 2003) (“Hemphill II”). The Federal Circuit affirmed
the District Court in all respects. Hemphill v. Procter & Gamble Co., No. 03-1463, 2004 WL 74620
(Fed. Cir. Jan. 15, 2004).
Having lost twice in the District of Maryland, on July 10, 2007, Ms. Hemphill sued
Kimberly-Clark Corporation and Procter & Gamble Company in this Court, accusing the same products
that were at issue in Hemphill II of infringing Claim 2 of the ‘720 patent. This Court granted
Defendants’ motion to dismiss on res judicata grounds. Hemphill v. Kimberly-Clark Corp., 530 F.
Supp. 2d 108 (D.D.C. 2008) (“Hemphill III”). Ms. Hemphill moved for reconsideration of that Order
pursuant to Federal Rule of Civil Procedure 60(b), accusing Defendants “of ‘cheating,’ ‘not being
-2- truthful,’ and engaging in ‘deceitful measures’ in this litigation.” 3/10/2008 Order in Case No. 07-1236
[Dkt. # 26] at 2. The Court rejected “Ms. Hemphill’s baseless accusations against Defendants” and
recounted that “Ms. Hemphill has had ample opportunity in this Court and in others to present her case
and has received a full and fair determination of her claims.” Id. at 3. The Federal Circuit summarily
affirmed this Court’s dismissal. Defs.’ Joint Mot. to Dismiss, Ex. 8 (Sept. 10, 2008 Fed. Cir. Order).
Ms. Hemphill again sues Kimberly-Clark Corporation and Procter & Gamble Company
in this Court, alleging that Defendants deceived the Court in Hemphill III by, inter alia, “claiming that
the products Ms. Hemphill accuses of infringing her ‘720 patent were ‘sanitary napkins’” when in
reality “the products are labeled as ‘pads’, ‘maxi-pads’, ‘mini-pads’ etc.” Am. Compl. ¶ 5. Ms.
Hemphill contends that this alleged deception led the Court in Hemphill III to erroneously conclude that
the accused products were the same products that were at issue in Hemphill II. See Pl.’s Opp’n to Defs.’
Joint Mot. to Dismiss [Dkt. # 15] at 5.
II. LEGAL STANDARDS
A. Rule 12(b)(6)
Defendants move to dismiss Ms. Hemphill’s Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). A motion to dismiss pursuant to 12(b)(6) challenges the adequacy of a
complaint on its face, testing whether a plaintiff has properly stated a claim. Although a complaint
“does not need detailed factual allegations, a plaintiff’s obligation to provide ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65
(2007) (internal citations omitted). A court must treat a complaint’s factual allegations – including
mixed questions of law and fact – as true, drawing all reasonable inferences in the plaintiff’s favor,
-3- Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief &
Dev. v. Ashcroft, 333 F. 3d 156, 165 (D.C. Cir. 2003), and the facts alleged “must be enough to raise
a right to relief above the speculative level,” Twombly, 127 S. Ct. at 1965. But a court need not
accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as
factual allegations. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In deciding a 12(b)(6)
motion, a court may consider only “the facts alleged in the complaint, documents attached as exhibits
or incorporated by reference in the complaint, and matters about which the Court may take judicial
notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted).
However, a court may, in its discretion, consider matters outside the pleadings and thereby convert
a Rule 12(b)(6) motion into a motion for summary judgment under Rule 56. See Fed. R. Civ. P.
12(b); Yates v. District of Columbia, 324 F. 3d 724, 725 (D.C. Cir. 2003).
B. Res Judicata
Under the doctrine of res judicata, also known as claim preclusion, “a judgment on
the merits in a prior suit bars a second suit involving identical parties or their privies based on the
same cause of action.” Apotex, Inc. v.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) ALLEGRA D. HEMPHILL, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-4 (RMC) ) KIMBERLY-CLARK CORPORATION ) and PROCTER & GAMBLE COMPANY, ) ) Defendants. ) )
MEMORANDUM OPINION
This case is the latest chapter in pro se Plaintiff Allegra D. Hemphill’s never-ending
litigation against Kimberly-Clark Corporation and Procter & Gamble Company. Ms. Hemphill has filed
numerous patent infringement lawsuits against Defendants, none of which has been successful. Citing
Federal Rule of Civil Procedure 60(b)(3) and (b)(6), Ms. Hemphill alleges in her Amended Complaint
that Defendants deceived the Court in her prior patent infringement case. See Am. Compl. ¶ 1 [Dkt.
# 3]. The Court already has rejected such accusations against Defendants as “baseless.” See 3/10/2008
Order in Case No. 07-1236 [Dkt. # 26] at 2. Accordingly, the Court finds that Plaintiff’s claims are
barred by res judicata, and it will grant Defendants’ Joint Motion to Dismiss [Dkt. # 13].
I. BACKGROUND
On December 10, 1985, Ms. Hemphill was issued a patent (United States Patent No.
4,557,720 (“the ‘720 patent”)) for a “vaginal swab.” The ‘720 patent describes a disposable vaginal
swab or refresher meant either to cleanse or treat the vaginal area with fragrances, medications,
germicides, or deodorants. The ‘720 patent is comprised of two independent claims (hereinafter,
“Claim 1” and “Claim 2”). In March 1999, Ms. Hemphill sued Johnson & Johnson, Inc. for alleged infringement
of the ‘720 patent in the United States District Court for the District of Maryland. Ms. Hemphill alleged
that McNeil-PPC, a subsidiary of Johnson & Johnson, Inc., had infringed Claim 2. The accused
products were McNeil-PPC’s sanitary napkins and adult incontinence products sold under the Stayfree,
Carefree, and Serenity product lines. The Maryland District Court granted summary judgment of non-
infringement for the defendant. Hemphill v. McNeil-PPC, Inc., 134 F. Supp. 2d 719, 725-29 (D. Md.
2001). The Federal Circuit affirmed the District Court in all respects. Hemphill v. McNeil-PPC, Inc.,
No. 01-1391, 2001 WL 1504561 (Fed. Cir. Nov. 27, 2001).
On November 18, 2002, Ms. Hemphill sued Defendants, Kimberly-Clark Corporation
and Procter & Gamble Company, for alleged infringement of Claim 1 of the ‘720 patent in the United
States District Court for the District of Maryland. The accused products were Defendants’ sanitary
napkin and adult incontinence products sold under the brand names Kotex, Always, and Poise. The
Maryland District Court granted summary judgment in favor of Defendants. Hemphill v. Procter &
Gamble Co., 258 F. Supp. 2d 410, 416-18 (D. Md. 2003) (“Hemphill II”). The Federal Circuit affirmed
the District Court in all respects. Hemphill v. Procter & Gamble Co., No. 03-1463, 2004 WL 74620
(Fed. Cir. Jan. 15, 2004).
Having lost twice in the District of Maryland, on July 10, 2007, Ms. Hemphill sued
Kimberly-Clark Corporation and Procter & Gamble Company in this Court, accusing the same products
that were at issue in Hemphill II of infringing Claim 2 of the ‘720 patent. This Court granted
Defendants’ motion to dismiss on res judicata grounds. Hemphill v. Kimberly-Clark Corp., 530 F.
Supp. 2d 108 (D.D.C. 2008) (“Hemphill III”). Ms. Hemphill moved for reconsideration of that Order
pursuant to Federal Rule of Civil Procedure 60(b), accusing Defendants “of ‘cheating,’ ‘not being
-2- truthful,’ and engaging in ‘deceitful measures’ in this litigation.” 3/10/2008 Order in Case No. 07-1236
[Dkt. # 26] at 2. The Court rejected “Ms. Hemphill’s baseless accusations against Defendants” and
recounted that “Ms. Hemphill has had ample opportunity in this Court and in others to present her case
and has received a full and fair determination of her claims.” Id. at 3. The Federal Circuit summarily
affirmed this Court’s dismissal. Defs.’ Joint Mot. to Dismiss, Ex. 8 (Sept. 10, 2008 Fed. Cir. Order).
Ms. Hemphill again sues Kimberly-Clark Corporation and Procter & Gamble Company
in this Court, alleging that Defendants deceived the Court in Hemphill III by, inter alia, “claiming that
the products Ms. Hemphill accuses of infringing her ‘720 patent were ‘sanitary napkins’” when in
reality “the products are labeled as ‘pads’, ‘maxi-pads’, ‘mini-pads’ etc.” Am. Compl. ¶ 5. Ms.
Hemphill contends that this alleged deception led the Court in Hemphill III to erroneously conclude that
the accused products were the same products that were at issue in Hemphill II. See Pl.’s Opp’n to Defs.’
Joint Mot. to Dismiss [Dkt. # 15] at 5.
II. LEGAL STANDARDS
A. Rule 12(b)(6)
Defendants move to dismiss Ms. Hemphill’s Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). A motion to dismiss pursuant to 12(b)(6) challenges the adequacy of a
complaint on its face, testing whether a plaintiff has properly stated a claim. Although a complaint
“does not need detailed factual allegations, a plaintiff’s obligation to provide ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65
(2007) (internal citations omitted). A court must treat a complaint’s factual allegations – including
mixed questions of law and fact – as true, drawing all reasonable inferences in the plaintiff’s favor,
-3- Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief &
Dev. v. Ashcroft, 333 F. 3d 156, 165 (D.C. Cir. 2003), and the facts alleged “must be enough to raise
a right to relief above the speculative level,” Twombly, 127 S. Ct. at 1965. But a court need not
accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as
factual allegations. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In deciding a 12(b)(6)
motion, a court may consider only “the facts alleged in the complaint, documents attached as exhibits
or incorporated by reference in the complaint, and matters about which the Court may take judicial
notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted).
However, a court may, in its discretion, consider matters outside the pleadings and thereby convert
a Rule 12(b)(6) motion into a motion for summary judgment under Rule 56. See Fed. R. Civ. P.
12(b); Yates v. District of Columbia, 324 F. 3d 724, 725 (D.C. Cir. 2003).
B. Res Judicata
Under the doctrine of res judicata, also known as claim preclusion, “a judgment on
the merits in a prior suit bars a second suit involving identical parties or their privies based on the
same cause of action.” Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004) (citing Drake v.
FAA, 291 F.3d 59, 66 (D.C. Cir. 2002)). The doctrine embodies the principle “that a party who once
has had a chance to litigate a claim before an appropriate tribunal usually ought not to have another
chance to do so.” SBC Comms. Inc. v. FCC, 407 F.3d 1223, 1229 (D.C. Cir. 2005) (quoting
Restatement (Second) of Judgments at 6 (1982) (emphasis in original)). As such, it promotes the
“purpose for which civil courts have been established, the conclusive resolution of disputes within
their jurisdictions.” Montana v. United States, 440 U.S. 147, 153 (1979).
-4- “Whether two cases implicate the same cause of action turns on whether they share
the same ‘nucleus of facts.’” Drake, 291 F.3d at 66 (quoting Page v. United States, 729 F.2d 818,
820 (D.C. Cir. 1984)). Courts make such a determination by looking at “‘whether the facts are
related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether
their treatment as a unit conforms to the parties’ expectations or business understanding or usage.’”
I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 949 n.5 (D.C. Cir. 1983) (quoting
1B J. Moore, Moore’s Federal Practice ¶ 0.410[1] (2d ed. 1983)). Put another way, “under res
judicata, ‘a final judgment on the merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that action.’” Drake, 291 F.3d at 66
(quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)) (emphasis in original)).
Res judicata is an affirmative defense that is generally pleaded in a defendant’s
answer, but is also properly brought in a pre-answer Rule 12(b)(6) motion when “all relevant facts
are shown by the court’s own records, of which the court takes notice.” Evans v. Chase Manhattan
Mortgage Corp., No. 04-2185, 2007 WL 902306, at *1 (D.D.C. Mar. 23, 2007) (citing Day v.
Moscow, 955 F.2d 807, 811 (2d Cir. 1992)); see also Stanton v. Dist. of Columbia Ct. of Appeals,
127 F.3d 72, 76-77 (D.C. Cir. 1997) (noting that courts have permitted parties to assert res judicata
under Rule 12(b)(6)). A court may take judicial notice of public records from other proceedings.
Covad Comms. Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005); Does I Through III v.
District of Columbia, 238 F. Supp. 2d 212, 216-17 (D.D.C. 2002).
III. ANALYSIS
In Hemphill III, Ms. Hemphill argued, inter alia, that Federal Rule of Civil Procedure
60(b)(3) required the Court to reconsider its Order dismissing her case because Defendants engaged
-5- in “‘deceitful measures’ in this litigation.” 3/10/2008 Order in Case No. 07-1236 [Dkt. # 26] at 2.
The Court rejected Ms. Hemphill’s accusations as “baseless,” id., and the Federal Circuit summarily
affirmed this Court’s dismissal. Defs.’ Joint Mot. to Dismiss, Ex. 8 (Sept. 10, 2008 Fed. Cir. Order).
In this suit, Ms. Hemphill again complains that the same Defendants deceived the Court in Hemphill
III within the meaning of Federal Rule of Civil Procedure 60(b)(3). See Am. Compl. ¶ 1 [Dkt. # 3].
While this suit is ostensibly for fraud and the prior suit was for patent infringement, the accusations
of deceit in both cases share the same nucleus of facts. Drake, 291 F.3d at 66. Ms. Hemphill could
have raised – and indeed did raise – these same accusations in Hemphill III. Id. She is barred from
relitigating those accusations in this case by the doctrine of res judicata. Id. It is time for Ms.
Hemphill to accept the judgments of the courts and to cease suing Defendants.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Joint Motion to Dismiss [Dkt. # 13] will be
granted and this case will be dismissed with prejudice. A memorializing Order accompanies this
Memorandum Opinion.
Date: March 31, 2009 /s/ ROSEMARY M. COLLYER United States District Judge
-6-