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October 18, 2005.


The opinion of the court was delivered by: VICTOR MARRERO, District Judge


In the matter now before the Court, defendants City of New York (the "City"), the New York City Police Department (the "NYPD") and former and current administrative officials and police officers of the NYPD (collectively "Defendants"), have raised the affirmative defense of res judicata with respect to the claims of plaintiffs Ruben Gonzalez ("Gonzalez") and the Latino Officers Association (the "LOA") (together, "Plaintiffs")*fn1 asserting unlawful retaliation. Defendants' invocation of res judicata arises out of the dismissal, pursuant to a settlement agreement, of a class action that was brought by the LOA against the City and the named defendants in this action and that asserted essentially the same claims. For the reasons set forth below, the Court concludes that Plaintiffs' retaliation and disparate treatment claims are precluded but that their claims asserting failure to promote, against which Defendants did not raise a res judicata defense, may proceed.


  The facts of this case are set forth in the Court's Decision and Order, dated January 14, 2005, see Gonzalez I, 354 F. Supp. 2d at 327, familiarity with which is assumed. Those facts are recited here only to the extent that they are relevant to the instant motion. On or about April 12, 1999, Gonzalez filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), charging the NYPD with employment discrimination on the basis of race and national origin for failing to promote him. (Charge of Discrimination, dated April 12, 1999 ("Gonzalez EEOC Compl.") attached as Ex. A to Complaint, dated March 9, 2000 ("Compl.").)*fn2 Plaintiffs filed a lawsuit in this Court on March 9, 2000, charging Defendants with employment discrimination on the basis of Plaintiffs' national origin and race for failure to promote, for engaging in a pattern and practice of discrimination against Hispanic detectives, and for retaliating against Plaintiffs' opposition to Defendants' alleged discriminatory practices. Plaintiffs asserted claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), provisions of other federal civil rights statutes, specifically 42 U.S.C. §§ 1981, 1983 and 1985, and the corresponding New York State and City Human Rights Law. See Gonzalez I, 354 F. Supp. 2d at 332.

  Defendants moved for summary judgment on all of these claims except for Gonzalez's failure to promote claim. See id. at 332 n. 7. The Court granted Defendants' partial summary judgment motion in part, denying summary judgment on Gonzalez's retaliation claim, but granting summary judgment as to the claims made by Palermo and Rivera. Thus, the only remaining claims of the individual plaintiffs after Gonzalez I are those brought by Gonzalez alleging retaliation and failure to promote. As for the LOA, Defendants moved under Federal Rule of Civil Procedure 41(b) to dismiss all of the LOA's claims for failure to prosecute but the Court denied that motion. The LOA had alleged that its members experienced discriminatory treatment and retaliation (See Compl. at ¶ 61), and that Defendants failed to promote its members (See Compl. at ¶¶ 62, 75-77). All of those claims remained in this litigation after Gonzalez I.

  Shortly before the instant case was filed, the LOA filed a class action lawsuit in September 1999 against the City of New York, the NYPD, and former and current supervisors in the NYPD (the "LOA Class Action Defendants"). See Latino Officers Ass'n City of New York, Inc. v. City of New York, No. 99 Civ. 9568, 2004 WL 2066605, at *1 (S.D.N.Y. Sept. 15, 2004) ("LOA Class Action"). The LOA and individual named plaintiffs in that class action alleged that the LOA Class Action Defendants discriminated against them in violation of Title VII, 42 U.S.C. §§ 1981, 1983, and 1985, the First and Fourteenth Amendments, New York City Human Rights Law, and New York Common Law. The LOA Class Action was resolved on the basis of a settlement (the "Settlement Agreement"), and a final judgment on the merits was entered on September 15, 2004. Defendants' motion contends that that judgment operates to bar relitigation of the claims of disparate treatment and retaliation Gonzalez and the LOA assert in the case at hand.



  "To determine whether the doctrine of res judicata bars a subsequent action, we consider whether 1) the prior decision was a final judgment on the merits, 2) the litigants were the same parties, 3) the prior court was of competent jurisdiction, and 4) the causes of action were the same." Corbett v. MacDonald Moving Servs., Inc., 124 F.3d 82, 87-88 (2d Cir. 1997) (citing In re Teltronics Servs., Inc., 762 F.2d 185, 190 (2d Cir. 1985)).*fn3 Under the doctrine of res judicata, "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 that action." Monahan v. City of New York Dep't of Corrections, 214 F.3d 275, 285 (2d Cir. 2000) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)).


  The LOA Class Action meets all of the preceding requirements with respect to Gonzalez's retaliation claim.*fn4 First, the LOA Class Action was a final judgment on the merits. The LOA Class Action court ordered that the "individual and class claims raised in the Second Amended Complaint (except the individual claims of the five named plaintiffs who have timely opted out of the settlement) are dismissed with prejudice." LOA Class Action, 2004 WL 2066605, at *3. "`It is clear that a dismissal, with prejudice, arising out of a Settlement Agreement operates as a final judgment on the merits for res judicata purposes.'" Melwani v. Jain, No. 02 Civ. 1224, 2004 WL 936814, at *7 (S.D.N.Y. Apr. 29, 2004) (quoting Marvel Characters, Inc. v. Simon, 310 F.3d 280, 287 (2d Cir. 2002)). Accordingly, the order issued by the court approving the Settlement Agreement and dismissing the LOA Class Action qualifies as a final judgment on the merits as regards the claims there resolved. In addition, there is no dispute that the LOA Class Action court properly exercised its jurisdiction over the claims at issue.

  The Court also finds that the parties in the LOA Class Action and the instant case are the same for the purposes of res judicata. The parties do not dispute that the defendants in each case are the same; in both instances the claims are against the City of New York, the NYPD, and former or current supervisors in the NYPD. Gonzalez argues, however, that he was not a party to the LOA Class Action and that he was never asked to be a party to the case. (See Pls.' Letter, at 2.)*fn5 An individual is a member of a class certified pursuant to Rule 23(b) (3) if plaintiffs follow proper notice procedures and the putative member did not opt out. See Amchem Products, Inc. v. Windor, 521 U.S. 591, 614-15 (1997) ("Rule 23(b) (3) added to the complex-litigation arsenal class actions for damages designed to secure judgments binding all class members save those who affirmatively elected to be excluded."); 5 Moore's ¶ 23.11 ("Absent class members are bound by the judgment in a class action, even if they did not explicitly consent to be part of the class action. . . . [A] (b) (3) class member who has not elected to opt out of the class after receiving proper notice is bound by the judgment."); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974) (finding that plaintiffs bear full cost of providing individual notice); Langford v. Devitt, 127 F.R.D. 41, 44 (S.D.N.Y. 1989) ("a party purporting to represent a class . . . must give such appropriate notice" (internal citation omitted)); cf. Daniels v. City of New York, 198 F.R.D. 409, 415 (S.D.N.Y. 2001) ("When an action is certified pursuant to Rule 23(b) (3), class members are entitled to notice of the pendency of the action and may elect to `opt out' of the class and thereby not be bound by the judgment rendered in the class action.").

  Rule 23(c) requires "that for any class certified under 23(b) (3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be reasonably identified through reasonable effort." Fed.R.Civ.Pro. 23(c) (2) (B). Further, "[i]ndividual notice must be sent to all class members whose names and addresses may be ascertained through reasonable effort." Eisen, 417 U.S. at 173. Though publication notice is not sufficient when the names and addresses of potential class members can be ascertained, see Schroeder v. City of New York, 371 U.S. 208, 212-13 (1962); Mullane v. Cent. Hanover Bank & Trust, Co., 339 U.S. 306, 314-15, 318 (1950), "[i]t is not necessary that every class member receive actual notice, so long as class counsel acted reasonably in selecting means likely to inform persons affected." Denney v. Jenkins & Gilchrist, No. 03 Civ. 5460, 2005 WL 388562, at *20 (S.D.N.Y. Feb. 18, 2005) (referring to Fed.R.Civ.Pro. 23(c) (2) (B) which concerns determination of membership in a class); Eisen, 417 U.S. at 176 ("the Rule [23(c) (2)] was intended to insure that the judgment, whether favorable or not, would bind all class members who did not request exclusion from the suit"); see also Peters v. National R.R. Passenger Corp., 966 F.2d 1483, 1486 (D.C. Cir. 1992) (collecting cases and noting that even though first class mail is not one hundred percent reliable, the fact that every letter is not received by every addressee does not mean that the mail is not reasonably calculated to inform an absentee class member of the action and assertion by a plaintiff in pending action that he never received notice does not defeat preclusive effect of settlement in that case).

  The court in the LOA Class Action certified a plaintiff class and subclass pursuant to Federal Rules of Civil Procedure 23(b) (2) and 23(b)(3) ("Rule 23(b) (3)"), defining the subclass as
all Latino and African-American individuals who have been, are, or will be employed by the NYPD as members of the force, who have been or will be subjected to discrimination on the basis of race, color or national origin in the form of a hostile work environment, disparate disciplinary treatment, and retaliation for the exercise of their rights . . . whose claims arose between September 9, 1996 through December 31, 2003 (the "LOA Class").
LOA Class Action, 2004 WL 2066605, at *1. The LOA Class Action court determined that the LOA Class Action Defendants provided class members with sufficient notice containing the procedure to opt out of class membership. See id. at *2 ("[T]he parties have submitted proof of compliance with the Court's Order showing, inter alia, that notices were mailed to approximately 17,300 potential claimants and published in five major ...

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