Franklin v. Williams et al(MAG+)

Filing 4

ORDER and RECOMMENDATION: ORDERED that the 2 MOTION for Leave to Proceed in forma pauperis filed by Ellis Franklin is GRANTED. However, upon review of the complaint, the court concludes that dismissal of this action prior to service of process is a ppropriate under 28 U.S.C. § 1915(e)(2)(B). It is the RECOMMENDATION of the Magistrate Judge that this action be DISMISSED for lack of subject matter jurisdiction. Objections to R&R due by 1/22/2010. Signed by Honorable Susan Russ Walker on 1/8/2010. (dmn)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION E L L IS FRANKLIN, P la in tif f , v. C H A R L IE C. WILLIAMS, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 2:10cv11-MEF

O R D E R and RECOMMENDATION OF THE MAGISTRATE JUDGE P la in tif f Ellis Franklin, proceeding pro se, has filed a motion to proceed in forma p a u p e ris in this action (Doc. # 2). It is ORDERED that the motion is GRANTED. However, upon review of the complaint, th e court concludes that dismissal of this action prior to service of process is appropriate u n d e r 28 U.S.C. § 1915(e)(2)(B).1 In the style of his complaint, plaintiff lists Charlie C. Williams and Greyhound Bus L in e s as defendants. He appears to bring a claim against them for injuries he incurred when th e automobile he was driving was struck by a Greyhound Bus operated by defendant W il lia m s . The accident occurred on October 4, 2004 (see Accident Report attached to C o m p la in t). Plaintiff previously sued these defendants for injuries arising from the accident;

The statute provides, in pertinent part: "[T]he court shall dismiss the case at any time if the court determines that . . . the action or appeal­ (i) is frivolous or malicious, (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

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his claims were dismissed with prejudice on May 19, 2006 pursuant to a stipulation of d is m is s a l signed by counsel for the parties. (See Franklin v. Williams, et al., Civil Action N o . 2:05cv136-DRB, Docs. ## 66, 67). Additionally, although plaintiff does not include him in the style of the complaint, p la in tif f lists Robert C. Black, Jr. in paragraph 2, which is the section of the form complaint d e s ig n a te d for the names and addresses of the defendant(s). Plaintiff lists Black's address a s 425 S. Perry Street.2 Black, an attorney, represented Williams and Greyhound in the p re v io u s action in this court. (See Civil Action No. 2:05cv136-DRB). Plaintiff's allegations a g a in s t Black are as follows: Is s u e s stated by Mr. Robert C. Black Jr. Credibility on the issues of marijuana " ro a c h " found in his ashtray and some beer cans found in Mr Franklin car. And had worked long hour at work in the week before the accident. Due to the in f o rm a tio n given by Mr. Robert C Black, Jr., Mr. Charlie C William stated to th e police officer Cpl. R.A. Bradley and Mr. Franklin that he was at fault M r. Franklin accuse of DUI-Drug by the defendant of Greyhound. Crime. V io la tio n Conspiracy and defamation of character. Discrimination Bace on ra c e , Disability Act Title VII of the Civil Rights Act of 1964. amended. (C o m p la in t, p. 2). Despite plaintiff's listing of federal laws ("Discrimination Bace on race, D is a b ility Act Title VII of the Civil Rights Act of 1964"), plaintiff's factual allegations a g a in s t Black ­ which arise out of Black's representation of Greyhound and Williams in the p re v io u s action ­ do not support any claims under the federal discrimination laws he has Plaintiff lists only the street address, and does not include the city or state. For purposes of evaluating its own jurisdiction, the court takes judicial notice of the Montgomery, Alabama telephone book, which lists 425 South Perry Street as the address for Hill, Hill Carter Franco Cole and Black PC, defendant Black's law firm. See also Docket sheet for Civil Action No. 2:05cv136. 2
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listed. Accordingly, the court concludes that the allegations of the complaint do not support th e exercise of federal question jurisdiction. See Oneida Indian Nation v. County of Oneida, 4 1 4 U.S. 661, 666-67 (1974)(test of whether federal question jurisdiction exists is whether t h e right claimed is "so insubstantial, implausible, foreclosed by prior decisions of [the S u p re m e Court] or otherwise completely devoid of merit as not to involve a federal c o n tro v e rsy within the jurisdiction of the District Court, whatever may be the ultimate re s o lu tio n of the federal issues on the merits"); Cf. Riley v. Fairbanks Capital Corp., 222 Fed. A p p x . 897 (11th Cir. 2007)(unpublished opinion)("Although Riley listed some federal s ta tu te s in the complaint's preamble and again asserted that the district court had federal q u e s tio n jurisdiction over her FDCPA, RESPA and TILA claims, her second amended c o m p la in t did not contain such claims or other claims `arising under the Constitution, laws, o r treatises of the United States.'"). Construing plaintiff's complaint liberally, it appears that Franklin attempts to assert s ta te law claims against Black for conspiring with Greyhound and/or Williams to defame p la in tif f . However, plaintiff does not allege a basis for diversity jurisdiction. While plaintiff's p re v io u s action against Williams and Greyhound was supported by diversity of citizenship, plaintiff does not allege that Black is a citizen of any state other than Alabama, and the only a d d re s s he lists for Black is an Alabama address. Thus ­ even assuming that the requisite a m o u n t is in controversy ­ plaintiff's addition of Black as a defendant destroys complete d iv e r s ity and precludes this court's assertion of diversity jurisdiction. Accordingly, this

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action is due to be dismissed for lack of subject matter jurisdiction. F u rth e r, even if the court had a basis for exercising jurisdiction over this case, p la in tif f 's personal injury claims against Williams and Greyhound are barred by the doctrine o f res judicata, and his remaining state law claims against all of the defendants are barred b y the applicable statutes of limitation.3 Res judicata bars the filing of claims which were ra ise d or could have been raised in an earlier proceeding. Ragsdale v. Rubbermaid, Inc., 193 F .3 d 1235, 1238 (11th Cir. 1999)(citation omitted). "A case is barred from re-litigation under th e doctrine of res judicata if: `(1) there is a final judgment on the merits; (2) the decision w a s rendered by a court of competent jurisdiction; (3) the parties, or those in privity with th e m , are identical in both suits; and (4) the same cause of action is involved in both cases.'" K o n ik o v v. Orange County, Florida, 276 Fed. Appx. 916, 918 (11th Cir. 2008)(unpublished o p in io n )(q u o tin g Ragsdale, supra). "Res judicata acts as a bar `not only to the precise legal th e o ry presented in the previous litigation, but to all legal theories and claims arising out of th e same operative nucleus of fact.'" Pleming v. Universal-Rundle Corp., 142 F.3d 1354 (1 1 th Cir. 1998)(quoting Manning v. City of Auburn, 953 F.2d 1355, 1358 (11th Cir. 1992)). T h e dismissal with prejudice of plaintiff's claims against Williams and Greyhound B u s Lines pursuant to the stipulation of the parties operates as an adjudication on the merits f o r purposes of claim preclusion. See Hunt v. Hawthorne Associates, Inc., 119 F.3d 888, Additionally, to the extent that plaintiff's listing of federal laws could be construed as presenting federal claims, they are due to be dismissed for failure to state a claim upon which relief may be granted since plaintiff has failed to include factual allegations sufficient to support such claims. 4
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911 (11th Cir. 1997)(voluntary dismissal of claims with prejudice pursuant to Fed. R. Civ. P . 41(a)(1) operates as an adjudication on the merits); Cf. Citibank, N.A. v. Data Lease F in a n c ia l Corp., 904 F.2d 1498 (11th Cir. 1990)(finding no abuse of discretion in district c o u r t ' s determination that a stipulation of dismissal pursuant to Fed. R. Civ. P. 41(a)(1) e n te re d into by plaintiff and defendant's agents operated as an adjudication on the merits p re c lu d in g a new action against the defendant, stating, "[D]ata Lease, represented by counsel, e n te re d into the stipulation dismissing its claims against the agent directors `with prejudice.' Represented by new counsel, Data Lease cannot avoid the consequences of such a prior a c t." ); Kaspar Wire Works, Inc. v. Leco Engingeering & Mach., Inc., 575 F.2d 530 (5th Cir. 1 9 7 8 )(s ta tin g , in dicta, that "[i]t is clear that a stipulation of dismissal with prejudice, or, for th a t matter, a dismissal with prejudice at any stage of a judicial proceeding, normally c o n s titu te s a final judgment on the merits which bars a later suit on the same cause of a c tio n ." ). The personal injury claims plaintiff asserts in this action were adjudicated p re v io u s ly on the merits by a court of competent jurisdiction in a case brought by the plaintiff a g a in s t Williams and Greyhound Bus Lines. Plaintiff did not seek to appeal the judgment a n d did not otherwise seek relief from that judgment. Plaintiff may not now file a new action a g a in s t the same defendants asserting claims arising from the automobile accident. Additionally, plaintiff alleges that this action arose in May or June of 2006. (Complaint, ¶ 4). As noted previously, the accident giving rise to plaintiff's personal injury c la im s occurred in October 2004. (See Accident Report attached to Complaint). Plaintiff's

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personal injury claims against Williams and Greyhound and his defamation/conspiracy to d e f a m e claims against Black, Williams and Greyhound are barred by the two-year statutes o f limitation set forth in Ala. Code § 6-2-38(k)4 , (l)5 , and (n)6 . Accordingly, even if this court h a d jurisdiction to entertain plaintiff's claims, they would be subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). C O N C L U S IO N F o r the foregoing reasons, it is the RECOMMENDATION of the Magistrate Judge th a t this action be DISMISSED for lack of subject matter jurisdiction. T h e Clerk of the Court is ORDERED to file the Recommendation of the Magistrate J u d g e and to serve a copy on the parties to this action. The parties are DIRECTED to file any o b je c tio n s to this Recommendation on or before January 22, 2010. Any objections filed must s p e c if ic a lly identify the findings in the Magistrate Judge's Recommendation objected to. Frivolous, conclusive or general objections will not be considered by the District Court. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District

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"All actions of libel or slander must be brought within two years." Ala. Code, § 6-2-38(k).

"All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years." Ala. Code, § 6-238(l). All actions commenced to recover damages for injury to the person or property of another wherein a principal or master is sought to be held liable for the act or conduct of his agent, servant or employee under the doctrine of respondeat superior must be brought within two years." Ala. Code, § 6-2-38(n). 6
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Court of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rro r or manifest injustice. Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1 1 4 9 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989). D o n e , this 8th day of January, 2010.

/s / Susan Russ Walker SUSAN RUSS WALKER C H IE F UNITED STATES MAGISTRATE JUDGE

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