In the world of employment litigation, courts often cite the time-honored legal doctrine of "woulda, coulda, shoulda" when dismissing a disgruntled employee's claims. In some cases, the hiring of a lawyer woulda, coulda, shoulda avoided the belated filing or the inarticulate pleading, but, then again, many a pro se litigant will explain that they woulda hired a lawyer if they coulda afforded the fees and shoulda done so but for the fact that they lacked the means. A recent employment lawsuit against JP Morgan / Chase brings all of this into focus.
Plaintiff Kurt Pham was employed by JP Morgan Chase Bank, N.A., beginning in October 2009. (ECF No. 9, ¶ 5). Defendant Chase terminated Mr. Pham's employment on March 12, 2010. (Id.). At the time of Mr. Pham's termination from Chase, he had been investigated for providing inaccurate information on his timecard, and that he had failed to secure confidential client information. (Id. ¶ 6).
[C]hase U5's form failed to comply with FINRA, because it did not specify any acts related to the alleged failure to secure confidential client information. (Id.). In other words, Mr. Pham claims that because there was no underlying misconduct, Chase had no right-nonetheless an obligation-to file a U5 asserting misconduct. (Id.).
at Page 4 of the SDOH Opinion/Order(1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action.
[I]n this case, Mr. Pham's claim in the instant action was or could have been asserted in the previous arbitration action. Just like in the FINRA Arbitration, this matter concerns issues arising out of Mr. Pham's termination. But, as Mr. Pham emphasizes, this lawsuit is a breach-of-contract claim, whereas the FINRA Arbitration involved slander, libel, and defamation. Unfortunately for Mr. Pham, however, he has not demonstrated that the instant case involves different facts as the FINRA Arbitration. Westwood Chemical Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981); see also Hapgood v. City of Warren, 127 F.3d 490, 494 (6th Cir. 1997) ("It is irrelevant that the plaintiff, in the second action, is prepared to present evidence or theories of the case not offered in the first action, or that the plaintiff seeks remedies not previously demanded" where the same common facts are at issue in both suits). As a result, this Court finds that the breach-of-contract lawsuit is an issue that could have been asserted in the arbitration action.
[M]r. Pham argues that this Complaint arises out of a different series of facts and "is not regarding termination or Plaintiff's employment. Rather[,] this is pertaining to the employment contract and duty that Defendant(s) have to follow FINRA rules and regulations[,] and what Defendant(s) did after employment had terminated." (ECF No. 15 at 1(emphasis adjusted)). A careful look at Plaintiff's FINRA Statement of Claim and his Complaint shows that the facts alleged are substantially the same. For example, in the Statement of Claim, Mr. Pham stated: "My [U5 Form] should be clear and have no negative marks against it outside of a standard separation." (ECF No. 9 at 3). In the Complaint, he alleges: "Chase Investment Services BREACHED CONTRACT of supervisions and compliance reporting when sending an erroneous and malicious [U5] claiming misconduct . . . Fact is[,] there was no misconduct, so there was no right to file a [U5] with any misconduct allegations." (Id.). This Court finds that there is an "identity" between the causes of action, to the extent that the "claims arose out of the same transaction or series of transactions, or . . . the same core of operative facts." Browning v. Levy, 283 F.3d 761, 771-72, 773-74 (6th Cir. 2002) (internal citation and quotation omitted).