MEMORANDUM AND ORDER
August 6, 1993
The defendant, National Railroad Passenger Corporation, has filed a motion to dismiss the instant personal injury action pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons outlined in the following paragraphs, the motion is denied.
I. Statement of Facts.
On April 16, 1993, Plaintiff filed his civil action complaint in this case pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51, et. seq., alleging that he was, at all relevant times, employed as a maintenance manager by the National Railroad Passenger Corporation ("Amtrak") working out of Amtrak's 30th Street Station in Philadelphia. Mr. Riddle's complaint further avers that "beginning on or about June, 1989 and continuing at least until September, 1992, defendant has engaged in [certain] . . . negligent and unlawful conduct which amounts to the negligent infliction of emotional distress and harassment of plaintiff which directly and proximately caused plaintiff's injuries . . ."
This was not, however, the first action filed by Mr. Riddle for the emotional injuries which he purportedly suffered at the hands of his employer. Rather, it appears that Mr. Riddle had filed a nearly identical claim with this Court on May 29, 1992 and that that action had been transferred by stipulation of the parties to the United States District Court for the District of Columbia on July 28, 1992. Thereafter, on January 13, 1993, no action having been taken in that case since its transfer, Judge Louis F. Oberdorfer of the U.S. District Court for the District of Columbia ordered that counsel for plaintiff enter an appearance no later than January 29, 1993 in accordance with that court's local rules or show cause why the action should not be dismissed for want of prosecution. Plaintiff's counsel failed to comply with this order and, on February 2, 1993, the defendant filed a 12(b)(6) motion to dismiss the action with the D.C. court. Plaintiff likewise failed to respond to this motion with the result that on March 22, 1993, Judge Oberdorfer entered an order treating the defendant's motion to dismiss as "conceded under Local Rule 108(b)" and dismissing the action pursuant to Rule 12(b)(6).
A. Standards Governing Motions to Dismiss
It has long been recognized that a Fed.R.Civ.P. 12(b)(6) motion is the appropriate method by which to challenge the legal sufficiency of a claim or pleading filed in the district courts. See: United States v. Marisol, Inc., 725 F. Supp. 833 (M.D.Pa. 1989). In ruling upon a 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). In so reviewing the pleadings and any materials of record, the court must accept as true all of the matters pleaded and all reasonable inferences that can be drawn therefrom, construing them in the light most favorable to the non-moving party. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir. 1990); Hough/Lowe Assoc., Inc. v. CLX Realty Co., 760 F. Supp. 1141, 1142 (E.D.Pa. 1991); Ambrogi v. Gould, Inc., 750 F. Supp. 1233, 1241 (M.D.Pa. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir. 1988).
B. Applicability of the Doctrine of Res Judicata.
By way of the motion to dismiss which is now pending before this court, the defendant first asserts that under the doctrine of res judicata Plaintiff is effectively barred from bringing and maintaining this action by virtue of Judge Oberdorfer's March 22, 1993 order.
It has long been recognized that res judicata is a doctrine of claim preclusion; it refers to "the preclusive effect of a judgment in foreclosing relitigation of matters that should have been raised in an earlier suit." Claim preclusion "extends not only to the precise legal theory presented in the previous litigation, but to all legal theories and claims arising out of the same operative nucleus of fact. Hart v Yamaha-Parts Distributors, Inc., 787 F.2d 1468, 1470 (11th Cir. 1986) quoting Migra v. Warren City School District Board of Education, 465 U.S. 75, 77 n.1, 104 S. Ct. 892, 894 n.1, 79 L. Ed. 2d 56 (1984) and Olmstead v. Amoco Oil Co., 725 F.2d 627, 632 (11th Cir. 1984). For the defense of res judicata to succeed, four elements must be found to coalesce: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involved the same cause of action; and (4) both suits involved the same parties or their privies. O'Dell v. McSpadden, 780 F. Supp. 639, 643 (E.D. Mo. 1991); Kellner v. Aetna Casualty & Surety Co., 605 F. Supp. 326, 330 (M.D.Pa. 1984). See Also: Recchion on Behalf of Westinghouse Electric Corp. v. Kirby, 637 F. Supp. 284, 286 (W.D.Pa. 1985); Roodveldt v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 585 F. Supp. 770, 775 (E.D.Pa. 1984).
While the determination of whether an initial suit was based upon proper jurisdictional grounds and involved the same cause of action and parties as the subsequent action is relatively simple, resolution of the question of whether the first action resulted in a final determination on the merits is somewhat more problematic. For example, Fed.R.Civ.P. 41(b) provides that as a general rule, a dismissal with prejudice operates as a judgment on the merits unless the court specifies otherwise. That rule further authorizes a district court to dismiss an action for failure to prosecute, or to comply with [the] rules or any order of court and states that unless the court otherwise specifies, dismissal on these grounds, too, operates as an adjudication upon the merits. See: Napier v. Thirty or More Unidentified Federal Agents, 855 F.2d 1080, 1087 (3rd Cir. 1988); Kimmel v. Texas Commerce Bank, 817 F.2d 39, 40 (7th Cir. 1987); Hart v. Yamaha, supra., at 1470; Fed.R.Civ.P. 41(b).
Giving the dismissal this effect requires caution, however, if it is a penalty for want of prosecution or for failure to comply with the rules or with court orders. Indeed, there are constitutional limitations upon the power of a court, even in aid of its own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause and it is for this reason that the appellate courts very carefully scrutinize dismissals with prejudice made on these grounds and have allowed dismissal with prejudice only in the face of a clear record of delay or contumacious conduct by the plaintiff or upon a serious showing of willful default. 9 Wright & Miller, Federal Practice and Procedure: Civil, § 2369 at 193-195 (1971). To be sure, it is the law of this circuit that Rule 41(b) dismissals should be reserved for cases where there is a clear record of delay or contumacious conduct by the plaintiff and it is necessary for the district courts to consider whether lesser sanctions would better serve the ends of justice. Pickel v. United States, 746 F.2d 176, 182 (3rd Cir. 1984).
Viewing the case at bar in the context of all of the foregoing, we initially observe that the plaintiff does not challenge the District of Columbia Court's jurisdiction in the preceding action nor is there any dispute but that the parties and the causes of action are the same in both cases. Thus, the sole issue facing this court now is whether Judge Oberdorfer's March 22, 1993 order granting Amtrak's motion to dismiss constitutes a final judgment on the merits within the meaning of the res judicata doctrine. Although the order is silent as to whether or not the dismissal was with prejudice, its rationale is plainly apparent from the opening paragraph. Specifically, Judge Oberdorfer there opined:
"A January 13, 1993 Order in this matter stated that counsel for plaintiff 'shall, on or before January 29, 1993, enter an appearance in accordance with Local Rule 201(a) or otherwise show cause why this action should not be dismissed for want of prosecution.' Counsel for plaintiff has neither entered an appearance nor otherwise responded to that Order. Meanwhile, defendant has filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). plaintiff has not responded to defendant's motion, and the time within which he may respond has expired. Defendant's motion to dismiss may therefore be treated as conceded under Local Rule 108(b) . . ."
From this language, we conclude that Judge Oberdorfer based his decision to dismiss the previous action not upon its merits but upon the plaintiff's failure to prosecute, to comply with his January 13, 1993 order and to respond in a timely fashion to the defendant's dismissal motion. However, in now evaluating the existing record in this matter, we cannot find that there is such a clear record of delay or contumacious conduct on the part of the plaintiff as would merit here denying the plaintiff the opportunity to have his case heard on the merits. Indeed, while it is true that some two months elapsed between the time that Judge Oberdorfer ordered plaintiff's counsel to enter his appearance and the eventual dismissal of his case, less than four weeks passed between the dismissal and plaintiff's refiling of his claim in this court. Although we are in no way sanctioning the dilatory behavior of Mr. Riddle's attorney, we cannot say that justice would be served by giving the D.C. Court's March 22, 1993 order the effect of res judicata. The defendant's motion to dismiss on this basis is therefore denied. See Also: Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168, 174-175 (3rd Cir. 1990).
C. Application of the Doctrine of Official Immunity.
Defendant next argues that plaintiff cannot maintain the instant cause of action against it by virtue of the fact that it is cloaked with official immunity from suit. Specifically, Amtrak contends that because the Inspector General Act, 5 U.S.C. App. was amended in 1988 to require it to establish an Office of the Inspector General within 180 days and because the underlying conduct of which Mr. Riddle complains was allegedly undertaken by the Inspector General in fulfilling its statutory responsibility under the Act to conduct independent investigations, Amtrak was thereby rendered a governmental entity subject to the protections of immunity from suit. Again, we disagree.
It has long been thought important that officials of government should be free to exercise their official duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties and it is as a result of this thinking that immunities from suit, both absolute and qualified, were statutorily and judicially created. See: Barr v. Matteo, 360 U.S. 564, 571, 79 S. Ct. 1335, 1339, 3 L. Ed. 2d 1434 (1959).
In this case, the statute under which Amtrak essentially exists, 45 U.S.C. § 541, provides, in relevant part:
§ 541. Establishment of the Corporation