ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION TO HON. GREGORY H. WOODS: MOTION TO DISMISS

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE

Plaintiff Erika Lee (“Plaintiff” or “Lee”), proceeding pro se, asserts claims and seeks damages for negligence, negligence per se, defamation, defamation per se, intentional infliction of emotional distress, breach of contract, sexual battery, and violations of both the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”), against her former employer, Defendant Delta Air Lines, Inc. (“Defendant” or “Delta”). Lee alleges that, while employed at Delta, she was subjected to discrimination, sexual and racial harassment, sexual assault, retaliation, and a hostile work environment. Delta has moved for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on res judicata grounds based on the dismissal of a lawsuit Lee previously filed in California. For the reasons that follow, the motion should be DENIED.

FACTUAL BACKGROUND

As required on a motion to dismiss pursuant to Rule 12(b)(6), the Court takes the facts alleged in the Amended Complaint (“AC”) as true and draws all reasonable inferences in favor of Plaintiff, as the non-moving party.

Lee began working for Delta in September 2005 as a customer service agent. (AC ¶ 4.) Between 2017 and 2020, Lee alleges, she was sexually and racially harassed, as well as sexually assaulted, by Delta Manager Bernadette Tomasi (“Tomasi”). (AC ¶ 7.) Lee also claims that, in 2021, Delta repeatedly denied her requests for reasonable accommodations for her disabilities of mobility impairment, depression, anxiety, PTSD, and obesity. (AC ¶¶ 41-42, 57.)

In April 2019, Lee filed a formal complaint with Delta's Human Resources & Equal Opportunity Department. (AC ¶¶ 8-9.) According to Lee, immediately after making her complaint, she was suspended by Delta without pay for two weeks. (AC ¶ 10.) Lee claims that Tomasi's harassment and assault continued after her return from suspension. (AC ¶¶ 11-14.) But fearing another suspension without pay or termination, Lee did not file another formal complaint with Delta between 2019 and 2020. (AC ¶ 15.)

On February 19, 2021, Delta's New York Human Resources Manager David Needham (“Needham”) called Lee asking about a 2020 incident in which Tomasi had allegedly “spanked” Lee. (AC ¶ 16.) Lee responded that, regardless of whether Tomasi spanked her, she “had not reported this to anyone at Delta and did not want to report it to anyone at Delta since [she] was threatened with suspension and termination by Delta in April 2019 if she made any more complaints.” (AC ¶ 17.)

Nonetheless, on March 25, 2021, Lee filed another formal complaint with Delta for sexual and racial harassment, which included the allegation that she was spanked, and requested reasonable accommodation. (AC ¶¶ 17-18.) From March 26, 2021 through June 16, 2021, Lee was suspended without pay. (AC ¶ 21.) On June 17, 2021, Delta terminated Lee's employment, stating that it had “lost trust in [her] ability to perform [her] duties in a manner consistent with [its] policies and expectations, including the expectation of candor in [her] relations with Delta” and citing her “failure to cooperate” with investigations and intentional misrepresentations of conversations with Delta personnel. (AC ¶¶ 29, 32; see also AC, Ex. B.)

PROCEDURAL BACKGROUND

A. The Lee I Action

On September 21, 2020, Lee, proceeding pro se, filed suit against Delta and two of its employees in the United States District Court for the Central District of California, asserting claims for alleged violations of Title VII of the Civil Rights Act of 1963 (“Title VII”), 42 U.S.C. § 1981 (“Sec. 1981”), the California Fair Employment and Housing Act (“FEHA”), and the Americans with Disabilities Act (“ADA”) arising from her employment with Delta. See Erika L. Lee v. Delta Air Lines Inc. et al, No. 2:20-CV-8754 (C.D. Cal.) (“Lee I”). On December 28, 2020, Lee filed a 39-page First Amended Complaint (“1stAC”) which asserted fourteen causes of action: (1) race, color, disability, and sex discrimination in violation of Title VII, ADA, FEHA, and Sec. 1981; (2) hostile work environment; (3) retaliation in violation of the Family and Medical Leave Act (“FMLA”); (4) failure to prevent discrimination, harassment, and retaliation; (5) intentional infliction of emotional distress (“IIED”); (6) negligent hiring, supervision, and retention; (7) violations of Title VII; (8) race discrimination under Sec. 1981; (9) failure to interact under FEHA and ADA; (10) failure to accommodate under FEHA and ADA; (11) violations of FMLA and the California Family Rights Act (“CFRA”); (12) aiding and abetting; (13) violation of Civil Code § 52.1; and (14) violation of Civil Code § 1102.5. (Lee I, Dkt. 11.) Lee's 1stAC was single-spaced, typed in smaller than size 14 font, included handwritten notations, and totaled 54 pages with exhibits. (Lee I, Dkt. 11.)

On February 22, 2021, Delta moved to dismiss the 1stAC as “shotgun pleading” in violation of Federal Rule of Civil Procedure 8 (“Rule 8”) and for failing to state a claim under Rule 12(b)(6). (Lee I, Dkt. 22.) On March 8, 2021, Lee filed a Second Amended Complaint, which the court struck since Lee had neither obtained Delta's written consent nor leave from the court to file another amended complaint. (Lee I, Dkts. 28-29.)

On June 2, 2021, the California court granted in part and denied in part Delta's Motion to Dismiss Lee's 1stAC with leave to amend as to certain causes of action (the “June 2021 Order”). (Lee I, Dkt. 56.) Although the court declined to dismiss the 1stAC pursuant to Rule 8 given Lee's pro se status, it noted that “the majority of [Lee's] factual allegations are pled in paragraphs 16 through 210 of the [1st]AC spanning over 25 pages of single-spaced text in small font, and do not refer to a particular cause of action. Therefore, as pled, it is difficult to determine which allegations support which of the fourteen causes of action asserted by [Lee].” (Lee I, Dkt. 56 at 5-6.) Accordingly, the court ordered that “[a]ny second amended complaint filed by [Lee] shall comply with all applicable rules, including but not limited to [Rule] 8 (a complaint must contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief' and ‘[e]ach allegation must be simple, concise, and direct') and Local Rule 11-3 (requiring 14-point font and double-spaced lines for pleadings).” (Lee I, Dkt. 56 at 30.)

On June 4, 2021, Lee filed a motion for reconsideration of the court's June 2021 Order. (Lee I, Dkt. 57.) On June 16, 2021, Lee filed a 99-page Third Amended Complaint (“3rdAC”), asserting fourteen causes of action: (1) defamation per se; (2) hostile work environment in violation of Cal. Gov't Code § 12900, et seq, Title VII, FEHA, and Sec. 1981; (3) retaliation in violation of Title VII, ADA, Sec. 1981, FMLA, and CFRA; (4) failure to prevent discrimination, harassment, and retaliation (Cal. Gov't Code § 12900, et seq); (5) intentional infliction of emotional distress; (6) negligent hiring, supervision, and retention; (7) discrimination on the basis of race, color, disability, and sex in violation of Cal. Gov't Code § 12900, et seq, Title VII, ADA, and FEHA; (8) interference and impairment of employment contract in violation of Sec. 1981; (9) failure to interact in violation in violation of Cal. Gov't Code § 12940(n); (10) failure to accommodate in violation of ADA, Cal. Gov't Code § 12940(m)(1), and SB 400, 98.7, 230, and 230.1; (11) interference and retaliation in violation of FMLA and CFRA; (12) violations of Civil Code § 52.1; (13) violations of Labor Codes §§ 1102.5, 230 & 230.1, Cal. Gov't Code § 12945.2, 2 Cal. Code Regs. tit. 2, § 11069(c) & (d)(1), Cal. Gov't Code § 12926(p), Cal. Code Regs. tit. 2, § 11065(p)(2); and (14) violation of Labor Code § 96(k). (Lee I, Dkt. 62.) The 3rdAC was again single-spaced, typed in smaller than size 14 font, included numerous handwritten notations, and spanned 286 pages including exhibits.

On August 23, 2021, the court granted in part and denied in part Lee's motion for reconsideration for the June 2021 Order and issued an amended order (the “Amended Order”). (Lee I, Dkt. 91.) The Amended Order again directed Lee that “[a]ny second amended complaint filed by Plaintiff shall comply with all applicable rules, including but not limited to [Rule] 8 (a complaint must contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief' and ‘[e]ach allegation must be simple, concise, and direct') and Local Rule 11-3 (requiring 14-point font and double-spaced lines for pleadings).” (Lee I, Dkt. 91 at 30.)

On October 8, 2021, Delta filed a motion to dismiss the 3rdAC pursuant to Rules 8 and 12(b)(6). (Lee I, Dkt. 121.) Prior to ruling on the motion, the court held a conference at which it ordered Lee to contact the Pro Se Clinic to discuss her case and to file a declaration on whether she sought further opportunity to amend. (Lee I, Dkt. 129.) Lee submitted her declaration on January 10, 2022, indicating that she had reviewed the pro se guidelines, met with the Pro Se Clinic about the substance and formatting of future amendments, and would be ready to file and serve an amended complaint after January 17, 2022. (Lee I, Dkt. 134.)

On January 18, 2022, the court granted Delta's Motion to Dismiss the 3rdAC. (Lee I, Dkt. 139.) In so-ordering, the court stated that the 3rdAC was “286 pages long, single spaced, and typed in smaller than 14-point font” in violation of Rule 8, Local Rule 11-3, and the Amended Order, and included 519 paragraphs of allegations in one section, rendering it “difficult to determine which allegations support which of the fourteen causes of action asserted.” (Lee I, Dkt. 139 at 8-9.) Even so, the court gave Lee the opportunity to file a Fourth Amended Complaint (“4thAC”) “which complies with [Rule] 8, Local Rule 11-3, and the Court's Amended Order” and which “shall identify the specific factual allegations in support of the specific cause of action, and shall not assert new causes of action nor assert claims which were dismissed without leave to amend or with prejudice in the [] Amended Order.” (Lee I, Dkt. 139 at 10.)

On January 25, 2022, Lee filed her 4thAC, which was 100 pages long excluding exhibits, 411 pages including exhibits, and asserted ten causes of action: (1) discrimination (FEHA, Title VII, Sec. 1981, and ADA); (2) retaliation (FEHA, Title VII, Sec. 1981, ADA); (3) interference and retaliation (FMLA and CFRA); (4) intentional infliction of emotional distress; (5) negligent hiring, supervision, and retention; (6) failure to engage and reasonably accommodated (S.B. 400(1), Cal. Labor Code § 2301(f)(1)); (7) failure to prevent sex and disability discrimination; (8) Civil Code §§ 51.9, 52.1; (9) harassment and hostile work environment (Sec. 1981, Title VII, and ADA); and (10) whistleblower retaliation (Cal. Labor Code § 1102.5.) (Lee I, Dkt. 145.)

On March 15, 2022, Delta filed a motion to dismiss the 4thAC with prejudice under Rules 8 and 41(b). (Lee I, Dkt. 151.) On May 13, 2022, the court granted Delta's motion and dismissed the entire action for failure to comply with Rule 8 and pursuant to Rule 41(b) without leave to amend (the “Lee I Dismissal Order”). (Lee I, Dkt. 157 at 13-15.) Notably, the court's order did not state whether the dismissal was with or without prejudice, nor if it operated as an adjudication on the merits.

On May 23, 2022, Delta filed a Proposed Judgment in light of the court's dismissal order. (Lee I, Dkt. 158.) On May 23 and 24, 2022, Lee filed three motions for reconsideration of the court's dismissal order. (Lee I, Dkts. 162-64.) On August 3, 2022, the court denied Lee's motions for reconsideration (the “Lee I Reconsideration Order”). (Lee I, Dkt. 173.) In that same order, the court stated that it would not enter Delta's Proposed Judgment. Although the court noted that its dismissal of the 4thAC was “a final, appealable order,” it “was not an adjudication on the merits” and, thus, “entry of a separate judgment ... is unnecessary.” (Lee I, Dkt. 173 at 6 (emphasis added).)

B. The Instant Action

On June 13, 2022, while her motions for reconsideration in Lee I were pending, Lee commenced the instant action by filing a complaint in the Supreme Court of the State of New York, County of New York (“Lee II”). (Dkt. 1-1.) Lee seeks $60 million in damages and asserts fourteen claims: (1) intentional race discrimination in violation of NYSHRL (N.Y. Exec. Law § 296); (2) intentional race discrimination in violation of NYCHRL; (3) intentional gender discrimination, sexual harassment, and hostile work environment in violation of NYCHRL N.Y.C. Admin. Code §§ 8-107(1); (4) retaliation in violation of NYCHRL; (5) retaliation in violation of NYSHRL (N.Y. Exec. Law § 296); (6) breach of contract; (7) failure to accommodate in violation of NYCHRL N.Y.C. (Admin Code §§ 8-101, et seq.); (8) failure to engage in cooperative dialogue in violation of NYCHRL (N.Y.C. Admin. Code § 8-107); (9) defamation; (10) defamation per se; (11) negligence; (12) negligence per se; (13) intentional infliction of emotional distress; and (14) sexual battery and battery. (Dkt. 1-2 ¶¶ 35, 57-187,.) Lee's complaint totals 35 pages excluding exhibits and 70 pages including exhibits. In comparison with her filings in Lee I, Lee's complaint in the instant action is shorter and better organized; for example, each independent cause of action is isolated in its own section that includes the relevant facts and law.

On October 11, 2022, Delta removed the New York state action to this Court. (Dkt. 1.) Following pre-motion correspondence (Dkts. 7-18), Delta filed the instant motion on January 11, 2023, seeking to dismiss the case with prejudice pursuant to Rule 12(b)(6) exclusively on res judicata grounds. (Dkts. 25-26.) On January 21, 2023, Lee responded to Delta's motion, requesting to convert the motion to dismiss into a Rule 56 motion for summary judgment. (Dkt. 27.) Delta replied on March 17, 2023, at which time the motion was fully briefed. (Dkt. 44.) The matter has been referred to me for a Report and Recommendation. (Dkt. 10.)

LEGAL STANDARDS

A. Motion to Dismiss on Res Judicata Grounds

To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007). A claim is facially plausible when the factual content pleaded allows a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” Id., 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. at 1966).

“Res judicata challenges may properly be raised via a motion to dismiss for failure to state a claim under Rule 12(b)(6).” Thompson v. County of Franklin, 15 F.3d 245, 253 (2d Cir. 1994). “Res judicata [or claim preclusion] precludes parties from litigating issues ‘that were or could have been raised' in a prior proceeding.” Perez v. Danbury Hospital, 347 F.3d 419, 426 (2d Cir. 2000) (quoting Monahan v. New York City Department of Corrections, 214 F.3d 275, 284-85 (2d Cir. 2000)); Irish Lesbian and Gay Organization v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). “To prove that a claim is precluded under this doctrine, ‘a party must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the parties or those in privity with them; and (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.'” Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001) (brackets omitted) (quoting Monahan, 214 F.3d at 284-85); see also Truong v. Hung Thi Nguyen, No. 10-CV-386, 2011 WL 1198254, at *3 (S.D.N.Y. March 3, 2011).

B. Review Of Pro Se Pleadings

“Pro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Federal Bureau Of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). “[T]he Second Circuit, as a general matter, is solicitous of pro se litigants, enforcing standards of procedural leniency rather than holding them to the rigidities of federal practice.” Massie v. Metropolitan Museum of Art, 651 F.Supp.2d 88, 93 (S.D.N.Y. 2009); see also Weixel v. Board of Education, 287 F.3d 138, 141 (2d Cir. 2002) (reversing dismissal where district court failed to construe pro se plaintiff's complaint liberally); Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989) (“Once a pro se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might otherwise apply if he were represented by counsel.”).

That said, “pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (internal quotation marks omitted). “Notwithstanding the liberal pleading standards afforded pro se litigants, federal courts are courts of limited jurisdiction and may not preside over cases if they lack subject matter jurisdiction.” Torres v. Blackstone Group, No. 18-CV-6434, 2019 WL 4194496, at *2 (S.D.N.Y. Sept. 3, 2019), aff'd, 836 Fed.Appx. 49 (2d Cir. 2020) (internal quotation marks omitted).

DISCUSSION

Delta seeks dismissal solely on the grounds that this action is barred by res judicata based on Lee I. In response, Lee first argues that Delta's 12(b)(6) motion should be converted to a Rule 56 motion for summary judgment. Lee then contends that Delta has not met the required elements for res judicata. The Court begins by addressing Lee's conversion request, and then proceeds to discussion of the res judicata issue.

I. Conversion To A Rule 56 Motion Is Unwarranted

Lee argues that Delta's motion to dismiss should be converted into a Rule 56 summary judgment motion because Delta “failed to meet it[s] burden of proof by failing to provide any authenticated court documents.” (Pl. Mem. at 2.) That argument fails because it overlooks what the Court may properly consider on a motion to dismiss.

“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). When evaluating a Rule 12(b)(6) motion, however, courts can “consider any matter of which the court is permitted to take judicial notice without converting the motion to a Rule 56 motion for summary judgment.” Bey v. City of New York, No. 99-CV-3873, 2010 WL 3910231, at *3 (S.D.N.Y. Sept. 21, 2010). Matters of which the Court takes judicial notice include “matters of public record, such as pleadings and court orders from prior litigation between the parties.” Reisner v. Stoller, 51 F.Supp.2d 430, 440 (S.D.N.Y. 1999). “[T]he Court may therefore consider them when adjudicating a motion to dismiss without converting the motion to dismiss into a motion for summary judgment.” Pearson Capital Partners LLC v. James River Insurance Company, 151 F.Supp.3d 392, 401 (S.D.N.Y. 2015).

As particularly relevant here, courts can entertain a res judicata defense on a Rule 12(b)(6) motion “when the court's inquiry is limited to the plaintiff's complaint, documents attached or incorporated therein, and materials appropriate for judicial notice.” Spoleto Corporation v. Ethiopian Airlines Group, No. 21-CV-5407, 2022 WL 329265, at *5 (S.D.N.Y. Feb. 3, 2022), aff'd 2022 WL 17574469 (2d Cir. Dec. 12, 2022); see also McKoy v. Henderson, No. 05-CV-1535, 2007 WL 678727, at *6 (S.D.N.Y. March 5, 2007) (“When a motion to dismiss is premised on the doctrine of res judicata a court is permitted to take judicial notice of and consider the complaints and record generated in both actions without having to convert the motion to dismiss into a summary judgment motion.”). And “‘courts routinely take judicial notice of documents filed in other courts, ... not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related findings.'” Day v. Distinctive Personnel, Inc., 656 F.Supp.2d 331, 336 (E.D.N.Y. 2009) (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)).

In support of its motion, Delta relies solely on court pleadings and orders from Lee I, documents of which the Court can and does take judicial notice. As such, converting the present Rule 12(b)(6) motion to a Rule 56 motion is unwarranted.

II. Not All Res Judicata Requirements Are Met

Citing Lee I, Delta argues that res judicata bars Lee's employment-related claims against Delta and that the instant action should be dismissed with prejudice. (Def. Mem. at 9-13.) In opposition, Lee argues that her complaint is based on “new 2021 facts” unasserted in Lee I that the Lee I court could not have heard. (Pl. Mem. at 5, 10.) She also contends that the Lee I Dismissal Order was not an adjudication on the merits. (Id.) Lee's first argument does not survive scrutiny. But her second argument is correct.

As outlined above, courts consider a three-factor analysis to determine whether a plaintiff's claim is precluded under res judicata. A defendant must show that “'(1) the previous action involved an adjudication on the merits; (2) the previous action involved the parties or those in privity with them; and (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.'” Pike, 266 F.3d at 91 (brackets omitted) (quoting Monahan, 214 F.3d at 284-85); see also Truong, 2011 WL 1198254, at *3.

Since the second and third prongs of the analysis are easily met, the Court considers those first. The Court then proceeds to the first, and critical, factor - whether the Lee I court's dismissal of the 4thAC functions as an adjudication on the merits for res judicata purposes.

A. The Same Parties Are Present In The Instant Action

That both cases concern the same parties is undisputed. Lee “brought both actions at issue” and the same parties were involved in Lee I as in the current litigation: Erika Lee as Plaintiff and Delta Air Lines, Inc. as Defendant. Morales v. Suny Purchase College, 14-CV-8193, 2015 WL 7430864, at *3 (S.D.N.Y. Nov. 19, 2015); see also Bussa v. A Very Special Place, Inc., No. 14-CV-6479, 2014 WL 7271597, at *2 (E.D.N.Y. Dec. 18, 2014) (second element of res judicata met where “both this action and [plaintiff's] prior action involve the exact same parties”).

B. Both Actions Share The Same Factual Predicate

Claims need not be identical to be duplicative for res judicata purposes. “Whether or not the first judgment will have preclusive effect depends in part on whether the same transaction or series of transactions is at issue, whether the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first.” Monahan, 214 F.3d at 285 (internal quotation marks omitted). “To ascertain whether two actions spring from the same transaction or claim, we look to whether the underlying 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.” Pike, 266 F.3d at 91 (2d Cir. 2001) (internal quotation marks omitted). “'Transaction' must be given a flexible, commonsense construction that recognizes the reality of the situation.” Monahan, 214 F.3d at 289 (citing Interoceanica Corp. v. Sound Pilots Inc., 107 F.3d 86, 91 (2d Cir. 1997). “[W]hen the factual predicate upon which claims are based are substantially identical” those claims are given preclusive effect regardless of “whatever legal theory is advanced.” Berlitz Schools of Languages of America, Inc. v. Everest House, 619 F.2d 211, 215 (2d Cir. 1980); see also Woods v. Dunlop Tire Corp., 972 F.2d 36, 39 (2d Cir. 1992) (barring claims arising from the same transaction or occurrence although they were based upon different legal theories); Mathews v. New York Racing Association, Inc., 193 F.Supp. 293, 294 (S.D.N.Y. 1961) (“It is the facts surrounding the occurrence which operate to make up the claim, not the legal theory upon which a plaintiff relies”).

Lee contends that the claims asserted in this action could not have been raised in Lee I as they occurred in 2021, after she had filed her Lee I complaint. (Pl. Mem. at 5.) According to Lee, Lee I was initiated upon receipt of a right-to-sue notice issued to her by the EEOC in 2020, while the instant action is based on new EEOC right-to-sue letters she received in 2021. (Id. at 6-7.) Lee therefore argues that “[t]he factual predicate in [Lee I] involved a different transaction (Defendant's conduct while Plaintiff was employed in California in 2018)” while the instant action's “factual predicate is based on a different, subsequent transaction (Defendant's conduct while Plaintiff was employed in New York in 2020-2021).” (Id. at 7.) Lee insists that the “adverse employment actions of [her] March 2021 suspension without pay and June 2021 termination” depend upon “completely different evidence and proof of [further] facts” that render res judicata inapplicable. (Id.) The Court does not agree - Lee not only could have, but in fact did, raise her 2021 claims in Lee I.

The 4thAC itself undermines Lee's arguments. The 4thAC was filed on January 25, 2022 - over half a year after Lee's termination from Delta on June 17, 2021 - and its “short and plain statement” describes the lawsuit as “primarily based on Defendants Wrongful Termination in Violation of Public Policy.” (Lee I, 4AC ¶ 1.) Therefore, by Lee's own admission, the 4thAC covered her employment with Delta in New York through her termination from the company. (Id.) Indeed, in the very first paragraph of the 4thAC, Lee expressly writes that her claims “for sex discrimination, harassment, hostile work environment, IIED, for retaliation, discrimination, harassment, hostile work environment, failure to provide reasonable accommodation, failure to engage are not time-barred because the course of conduct alleged to support [her] claim did not end until her employment was terminated on June 17, 2021.” (Id.)

The 100 pages that follow are replete with claims arising from incidents that occurred during Lee's employment with Delta through “6/17/2021, [when] Plaintiff was terminated” that are presented as interrelated and continuous. (Lee I, 4thAC ¶ 35.) The 4thAC includes, inter alia, allegations related to: (1) Lee's February 19, 2021 conversation with Needham about Tomasi's conduct and her request for reasonable accommodation (Lee I, 4thAC ¶¶ 25-26, 28); (2) Lee's April 2021 DFEH/EEOC complaint after her March 26, 2021 suspension (Lee I, 4thAC ¶ 30); (3) Lee's June 2021 DFEH/EEOC complaint (Lee I, 4thAC ¶ 31); (4) alleged retaliation by Delta through June 2021 (Lee I, 4thAC ¶¶ 38-39, 77, 79); (5) alleged racial discrimination by Delta through June 2021 (Lee I, 4thAC ¶¶ 78, 114); Delta's failure to engage in the informal interactive process from February to June 2021 (Lee I, 4thAC ¶¶ 101, 107, 110-11); and (6) Lee's alleged wrongful termination (Lee I, 4thAC ¶ 116.)

Additionally, the same 2021 termination, suspension, and right-to-sue letters pursuant to which Lee initiated the instant action, and which she represents here are the “2021 facts” that constitute a distinct transaction from Lee I, are attached to the 4thAC. (Lee I, 4AthC Ex. 2 at ECF 50 (March 26, 2021 Suspension Letter), ECF 57 (June 17, 2021 Termination Letter); 4thAC Ex.3 at ECF 98 (June 11, 2021 right-to-sue letter). “[T]he underlying facts in [Lee I] and [the instant action] are not only related, they are the same: the disciplinary charges [and] suspensions ... were part of the same connected series of transactions” that Lee previously pled. Bey v. City of New York, 454 Fed.Appx. 1, 5 (2d Cir. 2011). And the instant action's more precise focus on conduct occurring in 2020 and 2021 does not make its claims new. Rather, the 2021 facts on which Lee here places greater weight are “merely [more] fact[s] arising from the same series of transactions pled in [Lee I].” Id.

“Clearly, ‘the facts essential to [the instant action] were already present in [Lee I].'” Cameron v. Church, 253 F.Supp.2d 611, 623 (S.D.N.Y. 2003) (quoting Waldman v. Village of Kiryas Joel, 207 F.3d 105, 110-11 (2d Cir. 2000). That Lee now asserts different causes of actions is irrelevant; “[e]ven claims based on different legal theories are barred provided they arise from the same transaction of occurrence.” Berrios v. New York City Housing Authority, 564 F.3d 130, 135 (2d Cir. 2009) (internal quotation marks omitted); see also Fried v. LVI Services, Inc., 557 Fed.Appx. 61, 64 (2d Cir. 2014) (that “claims may rely upon a different legal theory or seek an alternative form of relief does not affect [res judicata] analysis”). Therefore, “[b]ecause [Lee] could have raised her claims in her [4thAC] in [Lee I], and in fact did,” the Court finds the claims sufficiently duplicative and the third res judicata prong met. Vega v. Department of Education, No. 19-CV-6963, 2020 WL 6727803, at *3 (S.D.N.Y. Nov. 16, 2020).

C. The Lee I Dismissal Order Was Not An Adjudication On The Merits

Delta argues that the Lee I Dismissal Order of the 4thAC pursuant to Rule 41(b) was a final adjudication on the merits. (Def. Mem. at 10-11.) Lee disagrees, advancing several arguments including that the Lee I court explicitly stated its motion to dismiss order was not an adjudication on the merits in the Reconsideration Order. (Pl. Mem. at 12.) The Court finds no basis to second-guess the Lee I court's express words. Accordingly, the first res judicata prong is not satisfied.

Rule 41(b) provides that “[u]nless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule - except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 - operates as an adjudication on the merits.” Fed.R.Civ.P. 41(b); see Lopez v. Pichardo 2230 Restaurant Corp., No. 15-CV-0648, 2017 WL 4350612, at *1 (S.D.N.Y. June 5, 2017) (same). “A dismissal under Rule 41(b) operates as an adjudication on the merits and bars a subsequent action unless it falls within an enumerated exception or the order of dismissal has been denominated to be without prejudice.” Moutsinas v. Department of Education of City of New York, No. 05-CV-3096, 2006 WL 1997637, at *3 (S.D.N.Y. July 18, 2006). For non-enumerated dismissals, “res judicata would preclude a subsequent action on the same claim.” PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 896 (2d Cir. 1983), cert denied 464 U.S. 936, 104 S.Ct. 344 (1983). This remains true even where “the substantive issues of the case are never reached.” Saylor v. Lindsley, 391 F.2d 965, 968 (2d Cir. 1969); see also PRC Harris, 700 F.2d at 896 (finding that a dismissal for failure to comply with the statute of limitations operated as an adjudication on the merits even though it “did not entail a consideration of the substantive issues raised”).

In isolation, the Lee I Dismissal Order appears to be an adjudication on the merits under Rule 41(b). The Dismissal Order neither definitively declared that it was a final adjudication on the merits, nor expressly set forth that it was without prejudice. It did, however, quote the express language of Rule 41(b). (See Lee I, Dkt. 157 at 7.) “[I]f the court does not specify that dismissal is without prejudice, as [the Lee I court] did not specify, and if the dismissal is not embraced within one of the three exceptions to Rule 41(b), the dismissal will be deemed to be with prejudice - i.e., an adjudication on the merits barring a second suit.” Weston Funding Corp. v. Lafayette Towers, Inc., 410 F.Supp. 980, 984 (S.D.N.Y. 1976); see also Charles v. City of New York, No. 99-CV-3786, 2007 WL 2728407, at *7 (S.D.N.Y. Sept. 17, 2007) (“[a] dismissal under Rule 41(b), unless it is expressly stated to be without prejudice, will generally bar a subsequent action on the claim under principles of res judicata”).

Further, the Lee I court expressly “dismiss[ed] [Lee's] Fourth Amended Complaint without leave to amend,” finding that “further leave to amend would be futile” given Lee's repeated failure to comply with court orders. (Lee I, Dkt. 157 at 14.) Lee had the opportunity to file an appeal of her dismissal with the Ninth Circuit but elected instead to pursue suit in this court. If, as is the case here, “a party fails to appeal or seek review of a lower court's decision on the merits, the doctrine of res judicata precludes relitigation of the claims.” Ercole v. Compania de Navagacao, 585 F.Supp. 1380, 1381-82 (S.D.N.Y. 1984). Thus, standing alone, the Dismissal Order satisfies the first requirement for res judicata.

However, the Court cannot consider the Dismissal Order separate and apart from the Reconsideration Order by which the Lee I judge pointedly characterized the Dismissal Order as not being a determination on the merits. See Bay Fireworks, Inc. v. Frenkel & Co., 359 F.Supp.2d 257, 263-64 (E.D.N.Y. 2005) (examining “[t]he order, and the order on reconsideration” when determining if a prior action was dismissed with or without prejudice). Following the Dismissal Order, Lee filed three motions for reconsideration, and Delta filed a Proposed Judgment. (Lee I, Dkts. 158, 162-64.) On August 3, 2022, the Lee I court issued its Reconsideration Order addressing the parties' various filings and denying the relief requested, including Delta's request to file a separate judgment. In doing so, the Lee I court said that its “Order dismissing Plaintiff's Fourth Amended Complaint without leave to amend ... is a final, appealable order. ... Moreover, the Order was not an adjudication on the merits.” (Lee I, Dkt. 173 at 4-5) (emphasis added). A dismissal under Rule 41(b) operates as an adjudication on the merits unless the court states otherwise. Plainly, in its Reconsideration Order, the Lee I court expressed that its Dismissal Order was not an adjudication on the merits.

Delta argues that Lee takes the “not an adjudication on the merits” statement “out of context” and that it should otherwise be ignored as dicta. (Def. Reply at 8.) Delta urges the Court to “give considerable weight to the plain language of Rule 41(b) (as cited by the Lee I court) instead of giving legal force to dicta in a subsequent order that in any event expressly declined to revisit the dismissal order." (Id. at 9.) According to Delta, the Reconsideration Order's statement that the Dismissal Order was not an adjudication on the merits was made only in reference to whether an entry of judgment should be made. (Id. at 8-9.) But the statement establishing that the Dismissal Order was not an adjudication on the merits was expressly part of the Lee I court's reasoning as to why “entry of a separate judgment . [was] unnecessary.” (Lee I, Dkt. 173 at 6.) It therefore was not dicta and cannot be ignored just because it was stated in the context of denying entry of separate judgment.

Delta asserts that the Court can decline “to find [a] judge's characterization of a complaint binding on the parties and court” and that “even if binding, [that] characterization would not preclude the application of res judicata” (Def. Reply at 8), citing U.S. ex rel. Pentagen Technologies International Ltd. V. United States, No. 00-CV-6167, 2001 WL 946375, at *1 (S.D.N.Y. Aug. 21, 2001), denying reconsideration of 2001 WL 770940 (S.D.N.Y. July 10, 2001). But Pentagen is entirely inapt.

Pentagen was a qui tam action (“Qui Tam 2”), which had been preceded by an earlier qui tam action (“Qui Tam 1”) in which the court dismissed the relators' claims and denied leave to file a second amended complaint due to futility. 2001 WL 770940, at *2. The government moved to dismiss Qui Tam 2 on grounds of res judicata effected by the dismissal in Qui Tam 1. In opposition, the Qui Tam 2 relators argued that the court had to consider not only the Qui Tam 1 dismissal order concerning the second amended complaint, but also a summary order in which the Qui Tam 1 court had characterized additional claims brought in a proposed third amended complaint as “new.” Pentagen, 2001 WL 946375, at *1. The relators contended that if the Qui Tam 2 court gave sufficient weight in its res judicata analysis to the Qui Tam 1 summary order characterizing the claims in the third amended complaint as “new,” it should not give res judicata effect to the Qui Tam 1 dismissal order vis-a-vis the same “new” claims being asserted in Qui Tam 2. Id.

The Qui Tam 2 court disagreed, finding that res judicata did not apply to the Qui Tam 1 summary order because the third amended pleading at issue there had been presented to the Qui Tam 1 court ex parte, and the summary order decision “issued without the benefits of any adversarial argument.” Id. “[S]ince none of the parties named in the [Qui Tam 2] amended complaint litigated any issue addressed in [the Qui Tam 1 summary order], it is clear that [the Qui Tam 1 judge's] characterization of the amended complaint [in the summary order] is not binding on the parties in this Action nor this Court.” Id. The Court then stated that “even if [the characterization of the amended complaint as containing ‘new' claims] were binding, it would not preclude the application of res judicata” for other reasons. Id.

Pentagen is materially distinct from the facts here. Unlike the Pentagen parties, both Delta and Lee had an opportunity to litigate the issues in the Reconsideration Order before the Lee I court. The Lee I court's characterization of its Dismissal Order in its Reconsideration Order thus is binding on the parties. Second, the court in Pentagen found that, even if binding, the “new” claims asserted arose out of the same transaction as those previously dismissed, thus satisfying one of the res judicata requirements. 2001 WL 770940 at *8; see also 2001 WL 946375 at *1 n.2 (“[W]hile [the judge] did indicate that the ... amended complaint indeed contained ‘new' claims, his Summary Order does not support [plaintiffs'] contention that the presence of these ‘new' claims ... defeats the application of res judicata to the claims contained in the Complaint that this Court dismissed”). Here, in contrast, the “binding” aspect of the Lee I court's Reconsideration Order is that the Dismissal Order was not a decision on the merits, thus failing to satisfy an element of res judicata.

Delta also offers O'Diah v. New York City, No. 02-CV-0274, 2002 WL 1941179 (S.D.N.Y. Aug. 21, 2002) in support of its argument that the Court should find the instant action barred by res judicata even though the Lee I court did not issue a separate judgment. (Def. Reply at 14.) That case too is inapposite, and Delta's argument misapprehends the issue at hand. In O'Diah, the court found that “[t]he district court's failure [in the prior action] to enter an order dismissing all claims with prejudice . and to enter final judgment in the action should not prevent the prior dismissal of [plaintiff's] claims ... from having res judicata effect.” ODiah, 2002 WL 1941179, at *5. The court explained that in the preclusion context, “‘final ... is a word of many meanings'” and that the requirement of finality “does not mandate the elevation of form over substance.” Id. at *4 (quoting, with respect to the first quoted portion, Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961)). Here, unlike the court in O'Diah, the Lee I court did not simply fail to enter final judgment; rather, it made the express decision that entry of final judgment was unwarranted because the Dismissal Order was not an adjudication on the merits. To ignore that, as Delta would like to, elevates the form of the Lee I Dismissal Order over the substance of the Reconsideration Order.

As Delta correctly observes, the Lee I court declined, in its Reconsideration Order, to revisit or change the Dismissal Order, which was silent on the merits issue. (Def. Reply at 9.) One might infer that by not revisiting its Dismissal Order, and having recited the language of Rule 41(b), the Lee I court affirmatively determined to leave in place the absence of any statement that the Dismissal Order was not on the merits. But that would be squarely at odds with the express language in the Reconsideration Order - that the Dismissal Order was “not an adjudication on the merits“ - and take it to mean something other than what it expressly says. There is no basis for this Court to either disregard or impute a directly contrary meaning to the Lee I court's words. If Delta believes the Lee I court meant something other than what it said, then Delta should have sought clarification from the Lee I court. Not having done so, Delta is in no position to ask this Court to make such a finding.

To be sure, this Court endorses the purposes served by the res judicata doctrine. As explained by one court, the “core purposes of New York's res judicata doctrine [are] ‘to ensure finality, prevent vexatious litigation and promote judicial economy.'” BNF NY Realty, LLC v. Nissan Motor Acceptance Corp., No. 18-CV-3664, 2019 WL 140648, at *5 (S.D.N.Y. Jan. 9, 2019) (quoting Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100, 810 N.Y.S.2d 96, 98 (2005)). Delta argues that if the Court does not grant its res judicata motion, those purposes would be disserved and Lee would be “free to continually file endless complaints in contravention of the express language of Rule 41(b), notwithstanding having been afforded endless opportunities over two years of prolonged litigation to properly plead her claims.” (Def. Mem. at 11.) The Court is sympathetic to Delta's position of having to engage in further litigation on issues seemingly already brought to a close in California. But, given that Delta's instant motion is for dismissal solely on res judicata grounds and that a key element of res judicata is missing, it would be improper for the Court to dismiss grant dismissal on that basis.

CONCLUSION

For the foregoing reasons, Delta's motion to dismiss should be DENIED. To the extent not discussed herein, the Court has considered all of the parties' arguments and determined them to be without merit.

PROCEDURES FOR FILING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Gregory H. Woods, U.S.D.J., United States Courthouse, 500 Pearl Street, New York, NY 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, NY 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.