United States District Court, D. Utah
GUY M. DOMAI, Plaintiff,
AL PECH, Defendant.
MEMORANDUM DECISION AND ORDER DISMISSING
Stewart United States District Judge
matter is before the Court for review of Plaintiff's
pro se Complaint. Plaintiff filed his Complaint
after receiving permission to proceed in forma
pauperis. Under the in forma pauperis statute,
the Court shall, at any time, sua sponte dismiss a
case if the Court determines the complaint is frivolous,
malicious, or fails to state a claim upon which relief can be
of a pro se complaint for failure to state a claim is proper
only where it is obvious that the plaintiff cannot prevail on
the facts he has alleged and it would be futile to give him
an opportunity to amend.” When reviewing the sufficiency of
a complaint the Court “presumes all of plaintiff's
factual allegations are true and construes them in the light
most favorable to the plaintiff.” Because Plaintiff
is proceeding pro se, the Court must construe his
pleadings liberally and hold them to a less stringent
standard than formal pleadings drafted by
lawyers. However, “[t]he broad reading of the
plaintiff's complaint does not relieve [him] of the
burden of alleging sufficient facts on which a recognized
legal claim could be based.”
Plaintiff brings a claim under the Family and Medical Leave
Act (“FMLA”) against the Vice President of
American Express, his former employer. Plaintiff has brought
similar claims in this Court in two previous
cases. In one of those cases, Plaintiff named Mr.
Pech as a Defendant. Both previous cases were dismissed on the
claims here are barred by the doctrine of claim preclusion.
“Under claim preclusion, a final judgment on the merits
of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in
the prior action.” “Claim preclusion requires: (1) a
judgment on the merits in the earlier action; (2) identity of
the parties or their privies in both suits; and (3) identity
of the cause of action in both suits.”
the two prior suits resulted in a judgment on the merits.
Case No. 2:13-CV-567 TS was dismissed for failure to
prosecute and Case No. 2:15-CV-542 CW was
dismissed on statute of limitations grounds. Such
dismissals operate as a final judgment on the
merits. The identity of the parties is the same
in both this suit and the previous suits. Finally, the cause
of action-violation of FMLA-is the same. Therefore,
Plaintiffs action is barred by claim preclusion and must be
that Plaintiffs Complaint is DISMISSED WITH PREJUDICE.
 See 28 U.S.C. §
 Perkins v. Kan. Dep't of
Corrs., 165 F.3d 803, 806 (10th Cir. 1999).
Hall v. Bellmon, 935 F.2d
1106, 1109 (10th Cir. ...