1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Marcell HILL, Case No.: 25-cv-0914-AGS-JLB 4 Plaintiff, ORDER GRANTING MOTION TO DISMISS (ECF 11) 5 v. 6 UNITED STATES OF AMERICA, 7 Defendant. 8 9 This case involves allegations of an unspeakable atrocity: a 1999 gang rape and 10 torture committed by U.S. Marines. The victim purportedly suppressed this incident until 11 2020. Since then, she claims that various government agents and entities have conspired to 12 discredit her, to thwart her quest for justice, and to protect her assailants. 13 These sickening accusations ultimately have only an incidental bearing on the legal 14 issues currently before the Court. Years ago, the plaintiff brought a nearly identical lawsuit 15 in Florida federal court, and that case was dismissed. The defense now moves to dismiss 16 this case, too, as barred by both res judicata and the statute of limitations. 17 BACKGROUND 18 In 2022, plaintiff Marcell Hill sued the United States government in federal court 19 for the Middle District of Florida, alleging various violations under the Federal Tort Claims 20 Act (FTCA). See Hill v. United States, No. 8:22-cv-1854-WFJ-MRM (M.D. Fla. 2022). 21 She brought claims of conspiracy, negligence, and intentional infliction of emotion distress 22 involving her accused assailants and various government officials and entities involved in 23 the investigation. Hill v. United States, No. 8:22-cv-1854-WFJ-MRM, 2023 WL 2864509, 24 at *3–*4 (M.D. Fla. 2023). The Florida trial court dismissed the second amended 25 complaint—including all 12 counts—“with prejudice.” Hill, 2023 WL 2864509, at *4, 26 *11. On appeal, the Eleventh Circuit remanded “with instructions that the district court 27 dismiss Counts I and II without prejudice,” but otherwise left the lower court’s ruling 28 1 undisturbed. Hill v. United States, No. 23-11970, 2024 WL 1326791, at *1 (11th Cir. 2 Mar. 28, 2024) (emphasis added). 3 Defendants now move to dismiss the current case on several grounds, including that 4 it is barred by “the doctrine of res judicata” and “by the FTCA’s statute of limitations.” 5 (ECF 11, at 5, 8.) 6 DISCUSSION 7 A. Res Judicata (Counts 3–18) 8 The Court confines its res judicata analysis to counts 3 through 18 of the current 9 complaint. Counts 1 and 2 are admittedly identical in both lawsuits. (ECF 8, at 6 10 (acknowledging the complaint “incorporates two [] counts from a prior, related action”)); 11 see also Hill, 8:22-cv-1854-WFJ-MRM, ECF 22, at 17–19. But those first two counts were 12 ultimately dismissed without prejudice. And a “dismissal without prejudice is not an 13 adjudication on the merits and does not have a res judicata effect.” Continental Ins. v. 14 N.A.D., Inc., 16 F. App’x 659, 661 (9th Cir. 2001). 15 Res judicata, or claim preclusion, applies when there is “(1) an identity of claims; 16 (2) a final judgment on the merits; and (3) identity or privity between parties.” Garity v. 17 APWU Nat’l Labor Org., 828 F.3d 848, 855 (9th Cir. 2016). “The party asserting a claim 18 preclusion argument ‘must carry the burden of establishing all necessary elements.’” Id. 19 (quoting Taylor v. Sturgell, 553 U.S. 880, 907 (2008)). 20 1. Identity of Claims 21 In assessing the identity of claims, courts consider four factors, addressed below. 22 “These criteria are not applied mechanistically.” Howard v. City of Coos Bay, 871 F.3d 23 1032, 1039 (9th Cir. 2017). First, courts evaluate “whether rights or interests established 24 in the prior judgment would be destroyed or impaired by prosecution of the second action.” 25 Id. The government has an interest in “the conclusive resolution of disputes.” Tahoe-Sierra 26 Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). This 27 interest would be impaired by forcing it to defend claims that it already litigated once 28 before to a dismissal with prejudice. 1 Second, we consider “whether substantially the same evidence is presented in the 2 two actions.” Howard, 871 F.3d at 1039. Because neither lawsuit has (yet) cleared the 3 motion-to-dismiss stage, no formal evidence has been submitted. But a comparison of the 4 two operative complaints suggests that the evidence would likely be much the same. 5 Admittedly, Hill added more detail and new theories to her current pleading, such as NCIS 6 Agent Spodarek’s alleged “conflict of interest.” (See ECF 8, at 34.) Yet the second lawsuit 7 largely echoes the first. For example, in both cases, Hill criticizes Agent Spodarek for 8 failing to identify two of her assailants, given the agent’s access to investigative resources. 9 (Compare ECF 8, at 15–16 (“Despite having access to official military records, Agent 10 Spodarek failed to act on this information” in investigating “two of Plaintiff Hill’s 11 assailants.”), with Hill, No. 8:22-cv-1854-WFJ-MRM, ECF 22, at 9 (“Agent Spodarek was 12 . . . unable to identify the remaining two suspects” and made “no progress in the 13 investigation,” despite “specific details provided by the Plaintiff combined with NCIS 14 access to military records and multiple investigative interviews conducted over the 15 previous 8 months.”).) And, according to both complaints, Hill was forced to hunt down 16 these suspects’ identities herself. (Compare ECF 8, at 15–16 (“Plaintiff Hill [had] to 17 uncover their identities on her own through memory and publicly available sources.”), with 18 Hill, No. 8:22-cv-1854-WFJ-MRM, ECF 22, at 9 (“Plaintiff diligently worked all weekend 19 to uncover the identity of the remaining two suspects herself.”).) 20 The third identity-of-claims factor is “whether the two suits involve infringement of 21 the same right.” Howard, 871 F.3d at 1039. In both proceedings, Hill alleged the same sorts 22 of FTCA violations: negligence and similar torts. (Compare ECF 8, at 2 (alleging 23 “negligent and wrongful acts and omissions of agents and employees of the United States 24 Government”), with Hill, No. 8:22-cv-1854-WFJ-MRM, ECF 22, at 1 (alleging “multiple 25 negligent and wrongful acts and omissions of multiple agents and employees of the 26 U.S. Government”).) This factor, too, points toward an identity of claims. 27 Finally, the Court must determine “whether the two suits arise out of the same 28 transactional nucleus of facts.” Howard, 871 F.3d at 1039. This “fourth factor is the most 1 important.” Id. (cleaned up). In fact, the Ninth Circuit often deems “the common-nucleus 2 criterion to be outcome determinative.” Media Rts. Techs., Inc. v. Microsoft Corp., 3 922 F.3d 1014, 1029 (9th Cir. 2019). Hill insists that counts 3 through 18 arise from new 4 “facts” or otherwise present “new theories.” (ECF 14, at 13–18.) But, at bottom, both cases 5 center on allegations of a horrific sexual assault in 1999. According to both operative 6 complaints, she was “drugged,” “gang raped,” “photographed,” and subjected to 7 “psychological[]” torment using “military” “tactics.” (ECF 8, at 11; Hill, 8:22-cv-1854- 8 WFJ-MRM, ECF 22, at 4.) The two cases’ ancillary facts—especially regarding the 9 subsequent investigation and Hill’s frustrations in seeking justice—share much in common 10 as well. But the central “nucleus of facts” in both lawsuits is this nightmarish alleged crime. 11 Because all four of these factors cut in favor of res judicata (especially the all- 12 important common-nucleus consideration), the Court finds that there is an identity of 13 claims between counts 3 through 18 and the prior suit. 14 2.
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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Marcell HILL, Case No.: 25-cv-0914-AGS-JLB 4 Plaintiff, ORDER GRANTING MOTION TO DISMISS (ECF 11) 5 v. 6 UNITED STATES OF AMERICA, 7 Defendant. 8 9 This case involves allegations of an unspeakable atrocity: a 1999 gang rape and 10 torture committed by U.S. Marines. The victim purportedly suppressed this incident until 11 2020. Since then, she claims that various government agents and entities have conspired to 12 discredit her, to thwart her quest for justice, and to protect her assailants. 13 These sickening accusations ultimately have only an incidental bearing on the legal 14 issues currently before the Court. Years ago, the plaintiff brought a nearly identical lawsuit 15 in Florida federal court, and that case was dismissed. The defense now moves to dismiss 16 this case, too, as barred by both res judicata and the statute of limitations. 17 BACKGROUND 18 In 2022, plaintiff Marcell Hill sued the United States government in federal court 19 for the Middle District of Florida, alleging various violations under the Federal Tort Claims 20 Act (FTCA). See Hill v. United States, No. 8:22-cv-1854-WFJ-MRM (M.D. Fla. 2022). 21 She brought claims of conspiracy, negligence, and intentional infliction of emotion distress 22 involving her accused assailants and various government officials and entities involved in 23 the investigation. Hill v. United States, No. 8:22-cv-1854-WFJ-MRM, 2023 WL 2864509, 24 at *3–*4 (M.D. Fla. 2023). The Florida trial court dismissed the second amended 25 complaint—including all 12 counts—“with prejudice.” Hill, 2023 WL 2864509, at *4, 26 *11. On appeal, the Eleventh Circuit remanded “with instructions that the district court 27 dismiss Counts I and II without prejudice,” but otherwise left the lower court’s ruling 28 1 undisturbed. Hill v. United States, No. 23-11970, 2024 WL 1326791, at *1 (11th Cir. 2 Mar. 28, 2024) (emphasis added). 3 Defendants now move to dismiss the current case on several grounds, including that 4 it is barred by “the doctrine of res judicata” and “by the FTCA’s statute of limitations.” 5 (ECF 11, at 5, 8.) 6 DISCUSSION 7 A. Res Judicata (Counts 3–18) 8 The Court confines its res judicata analysis to counts 3 through 18 of the current 9 complaint. Counts 1 and 2 are admittedly identical in both lawsuits. (ECF 8, at 6 10 (acknowledging the complaint “incorporates two [] counts from a prior, related action”)); 11 see also Hill, 8:22-cv-1854-WFJ-MRM, ECF 22, at 17–19. But those first two counts were 12 ultimately dismissed without prejudice. And a “dismissal without prejudice is not an 13 adjudication on the merits and does not have a res judicata effect.” Continental Ins. v. 14 N.A.D., Inc., 16 F. App’x 659, 661 (9th Cir. 2001). 15 Res judicata, or claim preclusion, applies when there is “(1) an identity of claims; 16 (2) a final judgment on the merits; and (3) identity or privity between parties.” Garity v. 17 APWU Nat’l Labor Org., 828 F.3d 848, 855 (9th Cir. 2016). “The party asserting a claim 18 preclusion argument ‘must carry the burden of establishing all necessary elements.’” Id. 19 (quoting Taylor v. Sturgell, 553 U.S. 880, 907 (2008)). 20 1. Identity of Claims 21 In assessing the identity of claims, courts consider four factors, addressed below. 22 “These criteria are not applied mechanistically.” Howard v. City of Coos Bay, 871 F.3d 23 1032, 1039 (9th Cir. 2017). First, courts evaluate “whether rights or interests established 24 in the prior judgment would be destroyed or impaired by prosecution of the second action.” 25 Id. The government has an interest in “the conclusive resolution of disputes.” Tahoe-Sierra 26 Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). This 27 interest would be impaired by forcing it to defend claims that it already litigated once 28 before to a dismissal with prejudice. 1 Second, we consider “whether substantially the same evidence is presented in the 2 two actions.” Howard, 871 F.3d at 1039. Because neither lawsuit has (yet) cleared the 3 motion-to-dismiss stage, no formal evidence has been submitted. But a comparison of the 4 two operative complaints suggests that the evidence would likely be much the same. 5 Admittedly, Hill added more detail and new theories to her current pleading, such as NCIS 6 Agent Spodarek’s alleged “conflict of interest.” (See ECF 8, at 34.) Yet the second lawsuit 7 largely echoes the first. For example, in both cases, Hill criticizes Agent Spodarek for 8 failing to identify two of her assailants, given the agent’s access to investigative resources. 9 (Compare ECF 8, at 15–16 (“Despite having access to official military records, Agent 10 Spodarek failed to act on this information” in investigating “two of Plaintiff Hill’s 11 assailants.”), with Hill, No. 8:22-cv-1854-WFJ-MRM, ECF 22, at 9 (“Agent Spodarek was 12 . . . unable to identify the remaining two suspects” and made “no progress in the 13 investigation,” despite “specific details provided by the Plaintiff combined with NCIS 14 access to military records and multiple investigative interviews conducted over the 15 previous 8 months.”).) And, according to both complaints, Hill was forced to hunt down 16 these suspects’ identities herself. (Compare ECF 8, at 15–16 (“Plaintiff Hill [had] to 17 uncover their identities on her own through memory and publicly available sources.”), with 18 Hill, No. 8:22-cv-1854-WFJ-MRM, ECF 22, at 9 (“Plaintiff diligently worked all weekend 19 to uncover the identity of the remaining two suspects herself.”).) 20 The third identity-of-claims factor is “whether the two suits involve infringement of 21 the same right.” Howard, 871 F.3d at 1039. In both proceedings, Hill alleged the same sorts 22 of FTCA violations: negligence and similar torts. (Compare ECF 8, at 2 (alleging 23 “negligent and wrongful acts and omissions of agents and employees of the United States 24 Government”), with Hill, No. 8:22-cv-1854-WFJ-MRM, ECF 22, at 1 (alleging “multiple 25 negligent and wrongful acts and omissions of multiple agents and employees of the 26 U.S. Government”).) This factor, too, points toward an identity of claims. 27 Finally, the Court must determine “whether the two suits arise out of the same 28 transactional nucleus of facts.” Howard, 871 F.3d at 1039. This “fourth factor is the most 1 important.” Id. (cleaned up). In fact, the Ninth Circuit often deems “the common-nucleus 2 criterion to be outcome determinative.” Media Rts. Techs., Inc. v. Microsoft Corp., 3 922 F.3d 1014, 1029 (9th Cir. 2019). Hill insists that counts 3 through 18 arise from new 4 “facts” or otherwise present “new theories.” (ECF 14, at 13–18.) But, at bottom, both cases 5 center on allegations of a horrific sexual assault in 1999. According to both operative 6 complaints, she was “drugged,” “gang raped,” “photographed,” and subjected to 7 “psychological[]” torment using “military” “tactics.” (ECF 8, at 11; Hill, 8:22-cv-1854- 8 WFJ-MRM, ECF 22, at 4.) The two cases’ ancillary facts—especially regarding the 9 subsequent investigation and Hill’s frustrations in seeking justice—share much in common 10 as well. But the central “nucleus of facts” in both lawsuits is this nightmarish alleged crime. 11 Because all four of these factors cut in favor of res judicata (especially the all- 12 important common-nucleus consideration), the Court finds that there is an identity of 13 claims between counts 3 through 18 and the prior suit. 14 2. Final Judgment on the Merits and Identity of Parties 15 As to counts 3 through 18, the last two res judicata requirements are easily satisfied. 16 Those counts correspond to the claims in the prior lawsuit that were dismissed “with 17 prejudice,” which “is considered a final judgment on the merits.” See Nnachi v. City of San 18 Francisco, No. C 10–00714 MEJ, 2010 WL 3398545, at *5 (N.D. Cal. Aug. 27, 2010). 19 And both this case and the Florida suit involve the exact same parties. 20 So, res judicata precludes further litigation over counts 3 through 18. 21 B. Statute of Limitations (Counts 1 and 2) 22 Although res judicata does not apply to counts 1 and 2, those counts—and all the 23 claims in this FTCA lawsuit—must be dismissed as untimely. An FTCA claim is “forever 24 barred” unless it is “presented in writing to the appropriate Federal agency within two 25 years” of the claim’s accrual and “unless action is begun within six months after the . . . 26 final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). 27 The latter six-month limitations period is fatal to Hill’s lawsuit. 28 1 Hill asserts that the final denial of her administrative claim was on “February 24, 2 2022,” and the agency notified her “of a six-month deadline to file in federal court, expiring 3 August 24, 2022.” (See ECF 8, at 5.) Though she brought her Florida lawsuit within that 4 deadline, the present “action” was not commenced until April 17, 2025—more than two- 5 and-a-half years after the deadline. (See ECF 1; ECF 8, at 5.) 6 While Hill’s Florida lawsuit was timely, the dismissal of its first two counts “without 7 prejudice left [plaintiff] in the same position as if the first suit had never been filed.” See 8 Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995); see also Humphreys v. 9 United States, 272 F.2d 411 (9th Cir. 1959) (“[A] suit dismissed without prejudice . . . 10 leaves the situation the same as if the suit had never been brought in the first place.”). So, 11 her second action, “filed more than six months after the [agency] mailed its final notice 12 denying [her] claim, . . . is time barred under the plain language of § 2401(b).” See Lambert, 13 44 F.3d at 298; see also Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994) 14 (holding that FTCA plaintiffs could not “relate back” their late-filed “second complaint” 15 to their timely “first complaint” because “a separately filed claim, as opposed to an 16 amendment or a supplementary pleading, does not relate back to a previously filed claim”). 17 Nor does it appear that any tolling could stave off the statute of limitations. Despite 18 having the opportunity to assert tolling theories, Hill has not done so. And there is no 19 suggestion that plaintiff was “induced or tricked by [her] adversary’s misconduct into 20 allowing the filing deadline to pass,” nor any other basis for equitable tolling. See Irwin v. 21 Department of Veterans Affairs, 498 U.S. 89, 96 (1990). 22 Because this FTCA action is untimely, all the claims—including counts 1 and 2— 23 must be dismissed. 24 C. Leave to Amend 25 When a pleading “can possibly be cured by additional factual allegations,” courts 26 should grant leave to amend. Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 27 2013). “A district court abuses its discretion by denying leave to amend unless amendment 28 would be futile or the plaintiff has failed to cure the complaint’s deficiencies despite 1 ||repeated opportunities.’” Garmon v. County of Los Angeles, 828 F.3d 837, 842 (9th Cir. 2 ||2016). Amendment is futile as to counts 3 through 18, as Hill has already litigated those 3 || claims to completion in Florida and received a judgment on the merits. But it is conceivable 4 || (albeit doubtful) that Hill could establish some form of equitable tolling as to counts | and 5 ||2, so she should be permitted to try. 6 CONCLUSION 7 Thus, defendant’s motion to dismiss is GRANTED in part: 8 1. Counts 1 and 2 are DISMISSED with leave to amend. 9 2. Counts 3 through 18 are DISMISSED with prejudice and without leave to 10 amend. 11 Plaintiff Hill may amend her complaint as to counts 1 and 2 only. By April 20, 2026, 12 ||she must file any such amended complaint, addressing the deficiencies discussed above. 13 ||The amended complaint must be complete by itself without reference to any previous 14 ||/pleading. If she fails to timely amend, the Court will dismiss this entire action with 15 || prejudice. 16 || Dated: March 20, 2026
18 Hon. rew G. Schopler United States District Judge 19 20 21 22 23 24 25 26 27 28