Board of Ed v. Norville

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In the Circu it Court for A nne Aru ndel Cou nty Case No. C-2001-70216 IN THE COURT OF APPEALS OF MARYLAND No. 6 September Term, 2005 ANNE ARUNDEL COUNTY BOARD OF EDUCATION v. DAVID NORVILLE Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Raker, J. Bell, C .J., joins in the judg ment o nly. Filed: December 12, 2005 The case is a suit alleging age discrimination based upon the Age D iscrimination in Employment Act of 1967 (A DEA ), 29 U.S.C. §§ 62 1 - 634 (Supp. III 199 4),1 Md. Code (1957, 2003 Repl. V ol., 2005 Cum. Su pp.) Art. 49B, § 16(a), 2 common law wrongful discharge and inten tional inf lictio n of emo tional dis tress filed by David Norville, a media specialist employed by the Anne Arundel County Board of Education (the Board) against the Board. Because the AD EA claim was adjudicate d on the m erits in a suit filed b y Norville in the United States District Court for the District of Maryland, Norville v. Anne Arundel County Bd. of Educ., No. Civ.A. MJG-99-764, 1999 WL 126 7696 (D. M d. Nov. 23, 1999 ), we sh all hold t hat this a ction is b arred b y the princ iples of res judic ata. I. David Norville was employed by the Board as a Media Production Specialist from 1979 until 1998. Norville received a m emorandum from his supervisor, D on Cramer, accusing him of insubordination on or about June 24, 1998. The Board sent Norville a letter in July 1998 explaining that it was reducing the number of positions in Norville s department for budgetary reasons. The Bo ard dischar ged No rville from h is employme nt as a M edia Produ ction S pecialis t on Sep tembe r 30, 19 98. 1 Unless otherwise indicated, all subseque nt statutory refere nces herein shall be to 29 U.S.C. § 621 et seq. 2 49B. Unless otherwise indicated, all subsequent statutory referen ces herein s hall be to A rt. Norville filed an age discrimination complaint, grounded in ADEA, with the Equal Employment Opportunity Commission (EEOC) against the Board. Following an investigation, the EEO C closed its f ile, and advis ed Norv ille that it was unable to conclude that the information obtained establishes violations of statutes. The EEO C added, how ever, that its action did not certify that the Board w as in comp liance with statutory requirem ents and informed Norville of his right to sue und er federal law , either in state or federal c ourt, within 90 days o f the no tice. Norville filed a complaint on March 18, 1999, which he amended on June 2, 1999, against the Board in the United States District Court for the District of Maryland, alleging six counts: violation of the Age Discrimination in Employment A ct (ADEA ),3 violation of Art. 49B,4 unjust enrichment, quantum meruit, wrongful discharge, and intentional infliction 3 29 U.S.C. § 6 23(a), Proh ibition of ag e discrimina tion, Age D iscrimination in Employment Act, states, in pertinent part, as follows: It shall be unlawful for an employer (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individua l with respe ct to his compen sation, terms, c onditions, or privileges of employme nt, becau se of su ch indiv idual s a ge. 4 Article 49B, § 16(a), Fair Employment Practices Act, prohibits termination of employment for discriminatory reasons. Article 49B, § 16(a) sta tes in pertinent part as follows: (a) Failure to hire or discharg ed; reduce d status. It shall be an unlawful emp loyment practice for an em ployer: (1) To fail or refuse to hire or to discharge any individual, or otherwise to discrimina te against an y individual w ith respect to the individual s compensation, terms, conditions, or privileges of employment, because of such individual s race, color, (contin ued...) -2- of emotional distress.5 The Board argued that it is an agency of the State of Maryland, and thus enjoys immunity from suit unde r the Eleventh Amendment to the United States Constitution.6 Norville contended that Eleventh Amendment immunity was unavailab le under ADEA because the Bo ard was not an arm of the State 7 and hence was not e ntitled to immu nity as a m atter of la w. 4 (...continued) religion, sex, age, national origin, martial status, sexual orientation, genetic information, or disability unrelated in nature and extent so as to reasonably preclude the performance of the employme nt, or because of the individual s r efusal to su bmit to a gene tic test or m ake av ailable th e results of a ge netic tes t. 5 Norville also name d Crame r in his individual ca pacity, alleg ing, inter alia, that Cramer harassed him in orde r to fabricate a record of un satisfactory performance. The District Court dismissed Norville s claim against Cramer on the ground that the ADEA does not allow individu al liability t o be imposed on an em ploye e, based on the Fo urth Circuit s opinion in Birbec k v. Ma rvel Lig hting C orp., 30 F.3d 5 07 (4th Cir. 199 4). Norville did not appeal, but instead filed suit against Cramer in the C ircuit Court for A nne Aru ndel County, alleging the iden tical claim s. The Circ uit Court dismissed N orville s claims against Crame r, and Norville did not appeal the dismissal of his claims ag ainst Cram er to the Court of Special Appeals. Norville s claims against Cramer are not included in his petition for writ of certiora ri, and th us, the iss ue is no t before us. 6 The Eleventh Amendment to the United States Constitution states that the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. The States Elev enth Am endmen t immunity applies to suits a gainst a State by its own c itizens. See Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 1 355, 39 L . Ed. 2d 66 2 (1974); Hans v. Louisiana, 134 U.S. 1, 15-16, 10 S. Ct. 50 4, 507, 3 3 L. Ed . 842 (1 890). See also C hisholm v . Georgia , 2 U.S. 419, 437446, 2 Dall. 419, 1 L. Ed. 440 (1793) (Iredell, J., dissenting); The Federalist No. 39, at 245 (James Mad ison) (Clinton Rossiter ed., 196 1). 7 We sh all use a rm of th e State and S tate age ncy inter chang eably. -3- The District Cou rt, in a Memorandum Opinion and Order, noted that on October 13, 1999, the Supreme Court had heard oral argument in Kimel v. B d. of Regen ts, 139 F.3d 1426 (11th Cir. 199 8), cert. granted, 525 U .S. 112 1, 119 S . Ct. 901 , 142 L . Ed. 90 1 (199 9), aff d, 528 U.S. 62, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000), presenting two issues bearing on the resolution of the issue before the District Court. The issues before the Supreme C ourt were whether the ADEA contained a clear abrogation of the States Eleventh Amendment immunity from suit by individuals and whether the extension of the ADEA to the States was a proper exercise of Congress s power under § 5 of the Fourteenth Amendmen t, thereby constituting a valid exercise of congressional p ower to a brogate the States Elev enth Amendment immunity fro m suit by individuals. The District Court stayed the action against the Board pending the Kimel decision. Following the Supreme Court s holding in Kimel that the AD EA did not constitute a proper abrogation of Eleventh Amendment immunity pu rsuant to § 5 of the Fo urteenth Amen dment, 528 U.S. 62, 82-83, 120 S. Ct. 631, 645,8 the District Court lifted the stay and, pursuant to Fed R. Civ. P. 12(b)(6), dismissed all Norville s remaining federal claims with prejudice, and the state law claims without prejudice. The District Court ruled as follows: 8 In Kimel, the Supreme Court reasoned that ADEA is not appropriate legislation under § 5 of the Fourteenth Amendment, and thus, concluded that A DEA is not a valid abrogation of the States Eleventh Amendment immunity. 528 U.S. at 82-91, 120 S. Ct. at 645-5 0. See also U.S. C onst. am end. X IV, § 5 . -4- By separate Order issued this date, the Court has dismiss ed all remaining claims. 1. Judgme nt shall be, an d hereby is, ente red in favor of Defendants Board of Education, Anne Arundel County, Maryland and Don Cramer against Plaintiff David Norville dismissing all federal claims with prejudice and all state law claims w ithout p rejudice . The Dis trict Court m ade clear tha t this Order c onstituted a f inal judgm ent. Norville did not appeal the judgment of the District C ourt. Instead, N orville filed su it against the Board and C ramer in the Circuit Cou rt for Anne Arundel County, alleging age discrimination in violation of Art. 49B, unjust enrichment, quantum meruit, common law wrongful discharge, and intentional infliction of emotional distress. The Circuit Court dismissed the unjust enrichment and quantum meruit claims with prejudice and the remaining claims, w ithout p rejudice . Norville then filed an Amen ded Co mplaint in w hich he alleg ed violation s of Article 49B, wrongful discharge, and intentional infliction of emotional distress as well as claims alleging violation of ADEA. The ADEA claims against the Board and Cramer were the same claims that the District Cou rt had dism issed with p rejudice. In h is Amen ded Co mplaint, Norville alleged, inter alia, as follows : 13. Defendant [the Board] willfully discriminated against the Plaintiff on account of his age in violation of Section 4(a)(1) of the ADE A, 29 U .S.C. 623(a )(1) with resp ect to its decision to discharge th e Plaintiff fro m emplo yment. -5- 34. Defend ant [Cram er] willfully discriminated against the Plaintiff on accou nt of his age in violation of Section 4(a)(1) of the ADEA, 29 U.S.C. 62 3 (a)(1) with respect to its de cision to discha rge the P laintiff f rom em ploymen t. In respon se, purs uant to M d. Rule 2-323(g), the Board and Cramer raised several affirmative defenses, including res judicata, as a result of the dismissal of the prior federa l court suit and sovereign and/or governmental immunity, as well as the failure to give proper notice under t he M aryland T orts Cla im Ac t. The Circuit Court granted the Board s Motion to Dismiss the intentional infliction of emotional distress claim, all other state law claims against the Board and Cra mer, a nd the ADEA claim against Cramer. Norville s ADEA claim again st the Board was the o nly claim to survive this Motion to Dismiss. Prior to trial, the Board requested that the Circuit Court rule on the sovereig n immunity issue. The Board argued that it was a State agency for the purpose of sovereign immunity. The Circuit Co urt dismissed Norville s ADEA claim, holding tha t the Board is a State agency, and as such, the Eleven th Amendm ent bars the suit against the Boa rd. In regard to the federal cause of action, the court noted as follows: In the instant cas e, Plaintiff s A DEA claim wa s dismissed in federal co urt on the ba sis of the Board s Eleventh Amendment immunity from suit . . . . The United States District Court for the District of Maryland has already held that the Board enjoys governmental immun ity from AD EA claim s that Plaintiff brought in federal court. -6- The Circuit Court concluded as follows: The Eleventh Amendment protects the States from suit unless they have explicitly waived their immunity. Maryland has clearly not waived its immunity from suits brought under the ADEA, and this imm unity applies to p rivate actions brought against its agencies in both federal and sta te courts . Acc ordingly, the Anne Arundel County Board of Education has a constitutional immunity to suits brought in State courts under the AD EA. Norville noted a tim ely appeal to the Court of Special Appeals. That court affirmed the judgmen t of the Circ uit Court, holding that the Circuit Court did not err in dismissing the Art. 49B claim and the common law wrongful discharge claim.9 Norville v. Anne Arundel County Bd. of E duc., 160 M d. App . 12, 862 A.2d 477 (2003). With respect to the ADEA claim, the Court of Special Appeals held that the Board was an arm of the State under the Eleventh Amendment, and that Md. Code (1973 , 2002 R epl. Vo l., 2004 C um. Su pp.) Courts and Judicial Proceedings Article, § 5-518(c)10 waived th e Board s sovereign immunity defense to any claim of $100 ,000 or less, in cluding claims brought by individuals under the ADEA.11 Id. 9 Norville ha s not appe aled the dism issal of his Sta te law claim s to this Cou rt. 10 Unless otherwise noted, all subsequent statutory references on this matter shall be to Courts and Judicial P roceedings Article, § 5-51 8(c). 11 Althoug h the Cou rt of Special Appeals held that a county board of education constitutes a State agen cy for purpo ses of sov ereign imm unity under the Eleventh Amen dment, we do not reac h the issu e beca use as w e shall ex plain, infra, the matter is barred by the principles of res judicata. The United States District Court for the District of Maryland, in dismissing Norville s claim, necessa rily ruled that the B oard wa s a State (contin ued...) -7- We granted the Board s p etition for writ of certiorari to decide the followin g questions: 1. Did the Court of Special A ppeals err in c onstruing [ Courts and Judicial Proceedings Article] § 5-518, which waives the sovereign immunity of local boards of education for any claim up to $100,000, as a waiver of the Bo ard s imm unity from su it under the Eleventh Amendment against an ADEA action filed in state court? 2. Did the C ourt of Sp ecial App eals err by failing to apply to a federal cause of a ction filed in s tate court the rules of strict construction that are applicable to determining wh ether a state has waived its immunity under the Eleventh Amendment to a suit filed in federal court? We granted Norville s cross-petition for certiorari to decide the following question: Whether the Court of Special Appeals erred in holding that the Anne Arundel County Board of Educ ation is entitled to sovereign immunity under the U.S. Constitution because the Board is an arm of the State ? II. We shall not reach these questions in deciding this case based on the principles of res judicata. Norville may not bring the same ADEA claim against the Board that a court of comp etent jur isdiction has dism issed w ith preju dice. Although the issue of res judicata was not raised directly in the certiorari petition, nevertheless, we m ay determ ine wh ether re s judica ta bars N orville s claims. See Lizzi v. 11 (...continued) agenc y. -8- Washin gton Metro. Area T ransit Auth ., 384 Md. 199, 205-06, 862 A.2d 1017, 1021-22 (2004). M d. Rule 8-1 31(a) states a s follows: (a) Gen erall y. The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and dec ided by the appellate court whether or not raised in and dec ided by the trial co urt. Ord inarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal. The Board raised the defense of res judica ta as an aff irmative def ense pursu ant to Md . Rule 2-323(g) in its Answ er to the Am ended C omplaint f iled in the Circ uit Court. T he Circuit Court, in dismissing Norville s c laims, argua bly relied on the p rinciples of res judica ta, in part, explaining that The United States District Court for the District of Maryland has already held that the Board enjoys governmental immunity from ADEA claims that Plaintiff brought in federal court. We have decided cases previously on res judicata grounds, even though res judicata was not ra ised in the pe tition for writ of certiorari. In Lizzi, the Circuit Court dismissed an employee s Family Medical Leave Act (FMLA) claim against his employer, Washington Metropolitan Area Tra nsit Auth ority (WMATA), on res judicata grounds, because the United States Court of Appea ls for the Fo urth Circuit had held in a p rior action tha t Lizzi s claim against WMAT A was barred because of sovere ign imm unity. See id. at 204, 862 A.2d at 1020-21. The Court of Special Appea ls affirmed on the ground of sovereign immunity rather -9- than res judicata.12 Id. at 205, 862 A.2d at 1021. Although we did not grant certiorari on the res judicata issue, we held nevertheless that Lizzi s FMLA claim was barred by the res judicata effect of the Fourth Circuit s decision in Lizzi v. Alexander, 255 F.3d 128 (4th Cir), cert. denied, 534 U.S. 1081, 122 S. Ct. 812 , 151 L . Ed. 2d 697 (2 001), reh g denied, 535 U.S. 952, 122 S. Ct. 1352, 152 L. Ed. 2d 254 (2002) . Id. at 213, 862 A.2d at 1025-26. As we stated in Lizzi, we find it preferable to address the res judica ta issue at this po int, so as to avoid the expense and delay of another appeal, as is expressly permitted under the language of Marylan d Rule 8-131 (a). Id. at 206, 862 A.2d at 10 21-22; see also Johnston v. Johnston, 297 Md. 48, 59, 465 A.2d 436, 441 -42 (1983) (noting that [a]lthough the parties in the instant case have not precisely raised the issue of res judicata, we believe that in the interests of judicial economy, it is appropriate for us to address it as it is dispositive of the matter before us ). The U.S. Supreme Court took a similar approach in Arizona v . California , 530 U.S. 392, 120 S. Ct. 2304, 147 L. Ed. 2d 3 74 (2002) (Arizona II). In that case, the Court was faced with the Quech an Tribe s claims for increased water rights from the Colorado Rive r. Id. at 397, 120 S. Ct. at 2310. These claims were bas ed on th e contention that the Tribe s reservation included thousands of acres not attributed properly to the Tribe in earlier stages 12 The Court of Special Appeals, in affirming the Circuit C ourt on sov ereign imm unity grounds, discussed the res judicata issu e briefly, but did n ot rely upon it: Appellees have not asserted that the AD EA claim s against the Board, filed in state court, are barred by res judicata, based on the federal court s disposition of the AD EA claim filed in federa l court. Norville, 160 M d. at 22, 8 62 A.2 d at 483 n.6. -10- of the litigat ion. Id. The Court considered whether these claims for additional rights were precluded by the Court s decision in Arizona v. California , 373 U.S. 546, 83 S. Ct. 1468, 10 L. E. 2d. 542 (1963 ) (Arizona I). The Court noted the following with regard to raising res judicata sua spon te: [I]f a court is on notice that it ha s previously decided the issue presented, the court may dismiss the action sua spon te, even though the defen se has not b een raised. T he result is fu lly consistent with the policies underlying res judicata: it is not based solely on the defendant s interest in avoiding the burdens of twice defending a suit, but is also based on the avoidance of unnecessary judicial waste. Arizona II, 530 U.S. at 412, 120 S. Ct. at 2318 (citations omitted) (emphasis added). We agree. Our view is in accord with other appellate courts that have ra ised res judica ta sua sponte. See, e.g., Carbon ell v. La. Dept. of Health & Human Res., 772 F.2d 185, 189 (5th Cir. 1985); Wilson v. United States, 166 F.2d 527, 529 (8th Cir. 194 8); Merrilees v. Treasurer, 618 A.2d 1314, 13 15-16 (V t. 1992); Dakota Title & Escrow Co. v. World-Wide Steel Sys., 471 N.W.2d 43 0, 434-35 (Neb . 1991); Campbell v. Lake Hallowell Homeowners Ass n., 157 Md. A pp. 504, 528, 852 A .2d 1029, 1042-4 3 (2004). -11- III. Res judicata, also known as claim preclusion or direct estoppel, means a thing adjudic ated. We explained the doctrine recently in Lizzi v. Was hington M etro. Area T ransit Auth., 384 Md. at 206-07, 862 A.2d at 1022, as follows: Res judicata literally means a thing a djudicated , and gene rally indicates an affirmative defense barring the same parties from litigating a second lawsuit on the same c laim, or any othe r claim arising from the same transaction or series of transactions and that could have been but wa s not raised in the first s uit. B LACK S L AW D ICTIONARY 1336-37 (8th ed . 2004) . See Alvey v. Alvey, 225 Md. 386, 390, 171 A.2d 92, 94 (1961) (stating that the doctrine of res judicata is that a judgment between the same parties and their privies is a final bar to an y other suit upon the same cause of action, an d is conclus ive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit ); see also Mackall v. Zayre Corp., 293 Md. 221, 228, 443 A.2d 98 , 102 (198 2) (stating that if a proceeding between parties involves the same cause of action as a previous proceeding between the same parties, the principle of res judicata applies and all matters actually litigated or that c ould have been litigated are conclusive in the subsequent procee ding ). The doctrine of res judicata bars the relitigation of a claim if there is a final judgment in a previous litigation where the parties, the subject matter and causes of action are identical or substantially identical as to issues actually litigated and as to tho se which could have or should have been raised in the previous litigation. Res judicata pro tects the cou rts, as well as the parties, from the attendant burdens of relitigation. This doctrine avoids the expense and vexatio n attend ing mu ltiple law suits, con serves th e judicia l resourc es, and fosters -12- reliance on judicial action by minimizing the possibilities of inconsistent decisions. Murray Int l Freight Corp. v. Graham, 315 Md. 543, 547, 555 A.2d 502, 503-04 (1989) (quoting Montana v. United States, 440 U.S. 147, 153-54, 99 S. Ct. 970, 973-74, 59 L. Ed. 2d 210 (1979)). Norville s claims in the Circuit Court were either fully raised and litigated in the federal District Court, or could have been raised in the federal action, and thus, are barred by the do ctrine of res judic ata. Res judicata restrains a party from litigating the same claim repeated ly and ensures that courts do not waste time adjudicating matters w hich have been d ecided or could have been decided f ully and fairly. Alm ost 130 years a go, the Sup reme Co urt made th is point in Cromwell v. County of Sac, 94 U.S. 351, 358, 4 O tto 351 (1876): The plea of [res judicata] applies, except in special cases, not only to the points upon which the court was required by the parties to form an opinion, and pronounce a judgme nt, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have b rough t forw ard at the time. Under Maryland law, the elements of res judicata, or claim preclusion, are: (1) that the parties in the present litigation are the same or in privity with the parties to the earlier dispute; (2) that the claim presented in the current action is iden tical to the one determine d in the prior adjudication; and, (3) that there has been a final ju dgme nt on th e merits . See Colandrea v. Wild Lake Comm. Ass n., 361 M d. 371, 392 , 761 A.2d 899, 910 (2000); Blades v. Woods, 338 Md. 47 5, 478-79 , 659 A.2d 872, 873 (1995); Gertz v. Anne Arundel County, 339 Md. 261, 269, 661 A.2d 1157, 1161 (1995); DeLeon v. Slear, 328 Md. 569, 580, 616 A.2d 380, -13- 385; Cicala v. Disability Review Bd., 288 Md. 254, 263, 418 A.2d 2 05, 211 (1980 ). See also Restatement (Second) of Judgments § 19 (1982). If a final judgment exists as to a controversy between parties, those parties and their privies are barred from relitigating any claim upon which the judgment is based. When a federal co urt renders a final judgm ent, generally the judgment s preclusive effect is determ ined by f ederal la w. See Shoup v. Bell & Howell Co., 872 F.2d 1178, 1179 (4th Cir. 1989) ; Luxford v . Dalken S hields Claim ants, 978 F. Supp. 221, 223 n.6 (D. Md. 1997); Restatement (Second) of Judgments § 87 (1982). In sta te court, the law of the state in which the judgment was rendered determines the preclusive effect . See Rourke v. Amchem Prods., Inc., 384 M d. 329, 3 44, 863 A.2d 9 26, 935 (2004 ). The elements of res judicata under federal law are analogous to those under Maryland law: (1) identical parties, or parties in privity, in the two actions; (2) the claim in the second matter is based upon the same cause of action involved in the e arlier proceeding; and, (3) a prior and final judgment on the merits, rendered by a court of comp etent jurisdiction in accordance with due proces s require ments. See Grausz v. Englander, 321 F.3d 467, 472 (4th Cir. 2003) . See also Kent County Bd. of Educ. v. Bilbrough, 309 Md. 487, 493-94, 525 A.2d 232, 235 (1987). Whether the final judgme nt is pronou nced by a fe deral court o r a state court, its preclusive bar extends to any theory arising out of the same claim. When a prior court has entered a final judgment as to the matter sought to be litigated in a second court, th e claim analysis is u sually unc omplic ated. See FWB Bank v. Richman, -14- 354 Md. 472, 493, 731 A.2d 916, 927 (1999). It is when a court has not ruled upon a matter directly that the analysis becomes mo re complex, for then the second court must determine whether the matter cu rrently before it w as fairly included within the c laim or action that was before the earlier cou rt and could have been resolved in that court. Id. We have adopted the transactional test of the Restatement (Second) of Judgments § 24 to address the latter kinds of cases, which states as follows: What factual grouping constitutes a transaction and what groupings constitute a series, are to be determined prag mati cally, giving weight to such considerations as whether the facts are relate d in time, spa ce, 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. Id. at 493, 927 -28 (1999 ); see Gertz , 339 Md. at 269-70, 6 61 A.2d at 1161; Billbrough, 309 Md. at 498, 5 25 A.2 d at 237 -38. Compare United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966) (federal and state causes of action are the same for the purposes of pendant jurisdiction when the causes of actions derive from the same com mon nu cleus of op erative fact ); see GCF Constr. Corp. v. LAN/STV, 414 F.3d 553, 555 n.2 (5th Cir. 2005) (claims and defenses are the same for res judicata purposes when they arise from a common nucleus of operative f acts ). Under the transactional approach, if the two claims or theories are based upon the same set of facts and one would expect them to be tried together ordinarily, then a party must bring them simultaneously. Legal theories may not be divided and presented in piecemeal -15- fashio n in ord er to adv ance th em in se parate a ctions. See Comm r of I.R.S. v. Sunnen, 333 U.S. 591, 597, 68 S. Ct. 715, 719, 92 L. Ed. 898 (1948) (quoting Cromw ell, 94 U.S. at 352 (1876)); Lockett v. West, 914 F. Su pp. 1229 , 1233 (D . Md. 199 5); Colandrea, 361 Md. at 392, 761 A.2d at 910 (20 00); Batson v. S hiflett, 325 Md. 684, 699, 602 A.2d 1191, 1199 (1992) (quoting Mackall v. Zayre Corp., 293 Md. 221, 228, 443 A.2d 98, 102 (1982)). A ll matters which were litigated o r could have been litigated in the earlier case are conclusive in the sub sequen t procee ding. Macka ll, 293 Md. at 228, 443 A.2d at 102. This proposition derives from the sound and obvious principle of judicial policy that a losing litigant deserves no rematch after a defeat fairly suffered in adversarial proceedings. Astoria Fed. S. & L. Ass n v. Solimino, 501 U.S. 104, 107, 111 S. Ct. 2166, 2169, 115 L. E d. 2d 96 (1991); accord Colandrea, 361 Md. at 391, 761 A.2d at 909. Res judicata pertains to the legal co nsequen ces of a jud gment en tered previo usly in the same c ase. Id. at 390-91 , 761 A.2d at 909; Burkett v. State, 98 Md. App. 459, 465, 633 A.2d 902, 905 (1993). In applying res judicata, we are concerned simply with the final judgment entered and its c oncom itant con sequen ces. Id. Because Norville has fully litigated the same ADEA claim against the Board, we shall examine the consequences of the federal District Court judgment in the prior case. -16- IV. Norville argues before this Court that the Board is not a State agency for Eleventh Amendment purposes, and thus it is not im mun e fro m his AD EA claim . Alte rnatively, Norville argues that, based on Courts and Judicial Proceedings Article, § 5-518,13 the State has waived partially the Board s sovereign immunity. Re s Judicata p rinciples app ly to Norville s ADE A claim a s well as his alternative arguments, because the federal District Court previously entered judgment against Norville on the same ADEA claim. The first element of res judicata that the second action feature the same parties or their privies is satisfied easily here. In federal District Court, Norville filed an action against the Bo ard, alleg ing, inter alia, a violation of ADEA. Norville v. Anne Arundel County Bd. of Educ., No. C iv.A MJG-99-764, 1999 WL 1267696, (D. Md. Nov. 23, 1999). In the p resent a ction, N orville a gain br ought s uit again st the B oard. The second elemen t of res judicata w hether a party is raising the same claim in the current action is met. In his state court action, Norville alleges the same claim of age 13 Courts an d Judicial Pr oceeding s Article, § 5-5 18 states, in pe rtinent part: (b) Claim s for mo re than $100,0 00. A county board of education described under Title 4, Subtitle 1 of the Education Article, may raise the d efense of sovereign immunity to any amount claimed above the limit of its insurance policy or, if selfinsured or a member of a pool described un der § 4-105 (c)(1 )(ii) of the Education Article, above $100,000. (c) Claims for $100,000 or less. A c ounty board of education may not raise the defense of sovereign immunity to any claim of $100,000 or less. -17- discrimination, grounded in ADEA, that he a lleged in his fed eral cou rt action . The only new matter in Norville s sta te case is that h e advanc es another th eory of AD EA liability based on § 5-518. He argues that the State s waiver of the county school boards liability for any claim up to $100,000 necessarily includes claims grounded in ADEA. This alternative theo ry, however, does not save Norville from the effects of res judicata. Even if a number of different legal theories casting liability on an actor may apply to a given episode, [they do] not create... multiple claims depriving a prior judgm ent of its preclus ive bar. See Lock ett v. West, 914 F. Supp. 1229, 1 233 (q uoting Restate ment (S econd ) of Jud gmen ts § 24 c mt. c (1982)). This remains true although the several legal theories depend on different shadings of facts, or w ould emp hasize diff erent eleme nts of facts. Id. Once a set of facts has been litigated, res judicata generally prevents the application of a different legal theory to that same set of facts, assuming that the second theory of liability existed when the first action was litigated. See Gertz v. Anne Arunde l County , 339 Md. 261, 270, 661 A.2d 1157, 1162 (1995 ). Norville s second theory simply is another attem pt to hold the Board liable for the same case of age discrimination which th e par ties h ave l itiga ted p reviousl y. After losin g his case in federal co urt, Norville cannot app ly his new theory to the same set of facts, w hen this theory is grounded upon a statute that was effective during the litigation of his prior action.14 14 See Md. Code (1973, 1998 Repl. Vol., 2001 Cum. Supp.) Courts and Judicial Proceedings A rticle, § 5-518(c). -18- Norville s arguments that the Board was not entitled to assert Eleventh Amendment immunity and that § 5-518(c) pa rtially waived the Board s sovere ign immunity from a convenient trial unit, Gertz, 339 Md. at 271, 661 A.2d at 1162, and therefore, could have been, and should have been, brought together in the federal District Court action. Inasmuch as both of the arguments advanced by Norville arise out of the same set of facts, they form the basis of the litigative unit or entity which may not be sp lit. Kent County Bd. of Educ. v. Bilbrough, 309 Md. 487, 498, 525 A.2d 232, 237 (1987) (quoting Restatement (Second) of Judgments § 24 cmt. a (1982)). By splitting theo ries applicab le to the sam e case, No rville seeks a second bite at the apple in the Maryland court system, which res judicata does not permit. See Proctor & Gamble Co. v. Amway Corp., 376 F.3d 496, 50 0-01 (5th Cir. 2004). Fina lly, the prior decision of the District Court constitutes a final judgment on the merits, which satisfies the third element of res judicata. The District Court granted the Board s Motion to Dismiss against Norville, which relied explicitly on Fed. R. Civ. P. 12(b)(6), the federal rule which authorizes a party to move for a dismissal for failure to state a claim upon w hich relief may be granted. W hen the District Court gra nted the Board s Motion to Dismiss and entered a final judgement against Norville, it necessarily decided that the Board w as a State ag ency entitled to th e assert Eleventh Amendment immunity. The Board would not enjoy Eleventh Amendment protection unless it was an arm of the State, and therefore, without such a finding, there would n ot have be en a basis to dismiss the su it at the 12(b)(6) stage, at least as to N orville s ADE A claim . See Howlett v. Rose, 496 U.S. -19- 356, 377, 110 S. Ct. 2430, 2443, 110 L. Ed. 2d 332 (1990) (noting that [f]ederal law makes governmental defendants that are not arms of th e State, such as municip alities, liable for the ir constitutional violations ); Mt. Hea lthy City Sch ool Dist. v. D oyle, 429 U.S. 274, 280, 97 S. Ct. 568, 572, 50 L. Ed. 2d 471 (1977) (noting that [t]he bar of the Eleven th Amen dment to suit in federal courts extends to States and state officials in appropriate circumstances ... but does not extend to co unties and similar municipa l corporations ); Ambus v. Granite Bd. of Educ., 995 F .2d 992 , 994 (10th Cir. 1993) (noting that un less Utah school districts are properly considered arms of the [S]tate, they are amenable to suits for damages in federal court under a federal cause of action); Belange r v. Mad era Unified Sch. Dist., 963 F.2d 248, 250 (9th Cir. 1992) (stating that [Plaintiff] concedes that her [federal] claims for damages are barred if the school district is indeed a [S]tate a gen cy for the purp oses of the Eleventh Amendm ent ). Having relied on Kimel to dismiss Norville s ADEA claim, the District Court necessarily decided that the Board was an arm of the state for Eleventh Amendment purpo ses. In the Judgm ent Orde r, the District C ourt deem ed its dismissal of Norville s case to be a fina l judgm ent. 15 Furtherm ore, Rule 4 1(b) of the Federal R ules of Civil Procedure 15 As we have indicated, federal law determines the res judicata of a f ederal court judgmen t. See Shoup v. Bell & Howell Co., 872 F.2d 1 178, 117 9 (4th Cir. 19 89). It is significant that the Distric t Court con sidered the B oard s M otion to D ismiss on E leventh Amendment immunity grounds as a Fed. R. Civ. P. 12(b)(6) m otion (dism issal for failure to state a claim upon which relief can be granted) rather than a Fed. R. Civ. P. 12(b)(1) motion (dismissal for lack of subject matter jurisdiction). When a federal co urt grants a m otion to (contin ued...) -20- 15 (...continued) dismiss for lack of subject matter jurisdiction, the dismissal does not constitute an adjudication on the m erits, and thus, a plaintiff is free to pursue the claim in a court having jurisdiction. See Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir. 1987) ; Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344 , 1348 (5th Cir. 1985); Indian Creek Monument Sales v. Adkins, 301 F. Supp. 2d 555, 558 -59 (W.D . Va. 2004 ); Young v. James, 168 F.R.D. 24, 27 (E.D. Va. 1996). Because a motion to dismiss for lack of subject matter jurisdiction is not an adju dication up on the me rits, its res judicata ef fects apply only to the jurisdictional question and not the me rits of the case. Winslow, 815 F.2d at 1116; Daigle, 774 F.2d at 1348; Prakash v. Am. Univ., 727 F.2d 1174 , 1181-82 (D.C . Cir. 1984). The United States Court of Appeals for the Fourth Circuit indicated recently that whether a federal court can entertain a suit consistent with the Eleventh Amendment is not an issue of sub ject matter jurisdiction under Article III of the U .S. Constitution. In Constantine v. The Rectors and Visitors of George Mason Univ., 411 F.3d 474 (4th C ir. 2005), the Fourth Circuit rejected the defendants contention that a federa l district court is required to consider an Eleve nth Amendment issue before addressing the sufficiency of the allegations under R ule 12(b)(6), noting that the Supreme Court s treatment of the Elev enth Amendment question in Calderon v. Ashmus, 523 U.S. 740, 118 S. Ct. 1694, 140 L. Ed. 2d 970 (1998) indicates that the Eleventh A mendmen t immunity does not limit a federal co urt s subject matter ju risdiction . Id. at 481. See also Biggs v. Meadows, 66 F.3d 56, 60 (4th C ir. 1995) (stating that Eleventh Amen dment im munity is not tru ly a limit on the subject matter jurisdiction of federal courts, but a block on the exercise of that jurisdiction and discussing differences between Eleventh Amendment immunity and subject ma tter jurisd iction). But see Abril v. V irginia, 145 F.3d 182, 18 4-85 (4th Cir. 1998) (af firming the District Court s dismissal of an action for lack of subject matter jurisdiction under Rule 12(b)(1) on Eleventh Amendment grounds w ithout analysis of this specific issu e); Republic of Paraguay v. Allen, 134 F.3d 622 , 626 (4th Cir.) (sam e), cert. denied, sub nom. Beard v. Greene, 523 U.S. 371, 118 S . Ct. 135 2, 140 L . Ed. 2d . 529 (1 998). The Suprem e Court has distinguishe d Eleven th Amen dment im munity from Article III limitations on federal judicial powe r. See Calderon v. Ashmus, 523 U.S. at 745 n.2, 118 S. Ct. at 1697 n. 2 (recognizing that the Eleventh Amendment is not co-extensive with the limitations on judicial power in Article III); Wisconsin Dept. of Corrs. v. Schacht, 524 U.S. 381, 388-8 9, 118 S . Ct. 204 7, 2052 -53, 141 L. Ed. 2d 364 (1998) (noting that, unlike a question of subject ma tter jurisdiction u nder Article III, a court nee d not raise an Eleventh Amendment issue sua spon te); Idaho v. Coeur d Alene Tribe of Idaho, 521 U.S. 261, 267, 117 S. Ct. 2028, 2033, 138 L. Ed. 438 (1997) (stating that the Elev enth Am endmen t enacts a sovereign immunity fro m suit, rather than a nonw aivable limit on the Federal Jud iciary s (contin ued...) -21- provides that the dismissal of an action upon a defendant s motion constitutes an adjudication on the merits , unless specified otherwise by the court dismissing the action.16 See Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776, 90 L.Ed 939 (1946) (n oting that it is w ell settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction ); Exch. Nat. Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976) (recognizin g that judg ments un der Rule 12(b)(6 ) are on the me rits, and w ith res jud icata ef fects ) . 15 (...continued) subject-matter jurisdiction ). As the Court discussed in Coeur d Alene Tribe, a State may waive its sovereign immunity from suit, and thus, the federal court may entertain the case or controversy involving the State, although a party is incapable of manufacturing subject matter jurisdiction und er Artic le III if it is la cking. See Coeur d Alene Tribe, 521 U.S. at 267, 117 S. C t. at 2033 -34. See also P atsy v. Bd. o f Regents , 457 U.S. 496, 515-16 n.19, 102 S. Ct. 25 57 n.19 , 2567, 7 3 L. Ed . 2d 172 n.19 (1 982). 16 The District Court did not specify that its dismissal of Norville s ADEA claim was not an adjudication on the me rits within the meaning of Fed. R. Civ. P. 41(b). In fact, the federal court dismissed Norville s claim with prejudice, which constitutes a final judgment on the me rits. See Keith v. Aldridge, 900 F.2d 736, 742 (4th Cir. 1990) (concluding that an order of a district court dismissing a plaintiff s claims with prejudice constitutes a final judgment on the me rits having res judicata effects); Morgan v. Dept. of Offender Rehab., 305 S.E.2d 130, 133 (Ga. Ct. App. 1 983) (hold ing that a dism issal of an A DEA claim with prejud ice con stitutes an adjudic ation on the me rits havin g res jud icata ef fects). Fed. R. Civ. Pro. 41(b) states as follows: For failure of the plaintiff to prosecu te or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dism issal not prov ided for in th is rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudic ation up on the m erits. -22- We hold that N orville s prese nt ADE A claim against the Anne A rundel County Boa rd of Education is barred based on the res judicata effect of the judgment of the United States District Court for the District of Maryland. JUDGMENT OF THE COURT OF SPECIALS APPEALS IS VACATED. CASE R EMANDED TO T H AT COURT WITH INSTRUCTIONS TO DISMISS THE A PPEAL . COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY NORVILLE. Chief Ju dge Bell joins in th e jud gme nt on ly. -23-

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