Hurst v. Shalk et al

Filing 49

MEMORANDUM - Signed by Judge Gregory M. Sleet on 6/27/17. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

JERRY A. HURST,
Plaintiff,
v.

MAXWELL WIEGARD, et ai.,
Defendants.

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) Civ. Action No. 15-360-GMS
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MEMORANDUM
I.

INTRODUCTION
The plaintiff, Jerry A. Hurst ("Hurst"), who proceeds pro se, filed this lawsuit on May 5,

2015, alleging violations of the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. §§ 272]
through 2725 and constitutional violations pursuant to 42 U.S.C. § 1983. 1 Hurst also raises
supplemental state claims for breach of the implied covenant of good faith and fair dealing and of
the defendant State Farm Mutual Automobile Insurance Company's ("State Farm") written
privacy policy, civil conspiracy, intentional infliction of emotional distress, tortious interference
with contractual relations, misappropriation of his name under Virginia common law, and
violations of the Virginia Consumer Protection Act ("VCPA"), Va. Code Ann. §§ 59.1-196, et

seq., and the Virginia Personal Information Protection Act ("VPIPA"), Va. Code Ann. §§ 59.1­
442, et seq.

IThe court denied Hurst leave to proceed in forma pauperis and Hurst appealed. (0.1.6,
9.) On appeal, the order denying leave to proceed in forma pauperis was vacated, and the matter
was remanded in August 2016. (OJ. 12.) Thereafter, the court granted Hurst leave to proceed in
forma pauperis, and a service order issued. (0.1. 11, 13.)

Before the court are motions to dismiss filed by the defendants Nicholas Skiles ("Skiles")
(D.1. 17), Colin Shalk ("Shalk") (D.l. 29), Maxwell Wiegard ("Wiegard") and Guy Harbert
("Harbert") (D.1. 37), and Marty Harbin ("Harbin") and State Farm (D.I. 40). Also before the
court are Hurst's request for entry of default and motion to strike (D.l. 32,48). For the reasons
that follow, the court will grant the defendants' motions to dismiss, will deny Hurst's motions,
and will order Hurst to show cause why he should not be enjoined from filing future similar
cases.

II.

BACKGROUND
Hurst and his litigation have come full circle. As set forth in this court's February 9,

2012 memorandum and order in Hurst v. State Farm Mut. Auto. Ins. Co., Civ. No. 10-1001­
GMS, 2012 WL426018, at *1 (D. Del. Feb. 9,2012), aff'd, No. 12-1654 (3d Cir. Oct. 24, 2012)
("Hurst f'), this action stems from State Farm's denial of an insurance claim made by Hurst for
the April 3, 2001 theft of his customized van and allegations that Hurst received a November 24,
2008 letter from State Farm, "confessing" that State Farm, through its outside agents and legal
counsel, disclosed Hurst's "personal information," including Hurst's social security number,
driver identification number, address, and other information that identifies an individual, all in
violation of the DPPA. Hurst 1,2012 WL 426018, at *2. The court's February 9, 2012
memorandum sets forth the background of Hurst's claim, and it is incorporated herein. See
Hurst 1,2012 WL 426018, at *2-3.
Hurst 1 alleged: (1) violations of the DPPA; (2) violations of42 U.S.C. § 1983 by reason
of DPP A violations; (3) violations of privacy rights under the Fourth Amendment of the United
States Constitution by reason of DPP A violations; (4) constitutional violations of the right to

2

privacy by publicizing private facts and by false light; (5) conspiracy; (6) retaliation; (7) fraud,
fraudulent concealment, and fraud on the court; (8) abuse of process; (9) intentional infliction of
emotional distress; (10) tortious interference with contractual relations; (11) tortious interference
with business relations; (12) inadequate hiring, training, supervision, and discipline; (13) breach
of the covenant of good faith and fair dealing and privacy policy; (14) constitutional claims; and
(15) State law claims. Hurst I was filed against State Farm, Harbin, Wiegard, Harbert, and
Shalk, all of whom are named defendants in this action. Other named defendants were City of
Rehoboth Beach ("Rehoboth Beach"), Walter Speakman ("Speakman"), Keith Banks ("Banks"),
Kevin Connors ("Connors"), United National Insurance Company ("United National Insurance"),
and Harleysville Mutual Insurance Company ("Harleysville Mutual Insurance"). Skiles, a
defendant in the instant action, is an attorney who represented Rehoboth Beach, Speakman, and
Harleysville Mutual Insurance in Hurst I.
In Hurst I, this court took judicial notice that 11urst had filed four prior lawsuits regarding
the theft of the van, including: (1) Hurst v. State Farm Mut. Auto. Ins. Co., Civ. No. 04-1350­
TSE-BRP (E.D. Va.), a RICO action against State Farm, Harbin, David L. Jones ("Jones"),
Marshall Major ("Major"), and John D. McGavin ("McGavin"), dismissed on November 15,
2004; (2) Hurst v. State Farm lv/ut. Auto. Ins. Co., Civ. No. 05-1279-GBL-TRJ (E.D. Va.), filed
November 7,2005, alleging that State Farm breached the terms of an automobile insurance
policy when it denied Hurst's claim for the 2001 theft of his van. Hurst attached as an exhibit to
the complaint a non-redacted affidavit of vehicle theft. The complaint also alleged fraud,
conspiracy, and intentional infliction of emotional distress. The matter was transferred from the
Eastern District of Virginia to the Western District of Virginia on December 21, 2005, Hurst v.

3

State Farm Mut. Auto. Ins., Civ. No. 05-776-GEC (W.D. Va.), and summary judgment was
granted in favor of State Farm, affirmed on appeal, on April 29, 2009; (3) Hurst v. State Farm

Mut. Auto. Ins. Co., Civ. No. 08-2907-WMN (D. Md.), a RICO action against State Farm,
Harbin, Jones, Major, and McGavin, dismissed on November 19, 2008, as barred by res judicata,
affirmed on appeal on April 29, 2009; and (4) Hurst v. City o/Salisbury, Civ. No. 1O-2516-WDG
(D. Md.), alleging violations under the federal criminal code, as well as breach of contract,
tortious breach of contract, bad faith, and intentional infliction of emotional distress, against the
City of Salisbury ("Salisbury"), Chief Webster ("Webster"), Captain Wiley ("Wiley"), Officer
Smullen ("Smullen"), State Farm, Major, Harbin, McGavin, Wiegard, and Harbert, dismissed as
barred by res judicata and, in the alternative, as time-barred, affirmed on appeal, on May 31,
2011.
After considering motions to dismiss filed in Hurst 1, this court found that: (l)(a) Hurst
was barred under the doctrines of claim and issue preclusion to relitigate claims relating to the
actions of State Farm, Harbin, and Wiegard, and Harbert, individuals who were defendants in
prior federal litigation Hurst filed against them, and (b) to the extent that Hurst sought to raise
additional claims that could have been raised in his prior actions, the claims were also barred;
(2) the 42 U.S.c. § 1983 claims and Delaware conspiracy and fraud claims were time-barred;
(3) the defendants were protected under the absolute litigation privilege; (4) a malicious defense
claim is not cognizable under Delaware law; (5) the allegations failed to state claims upon which
relief may be granted under the DPPA, 42 U.S.c. § 1983, and the State claims of false light
invasion of privacy, conspiracy, fraud, fraudulent concealment, and fraud on the court, abuse of
process, intentional infliction of emotional distress, tortious interference with contractual
4

relations, tortious interference with business relations, breach of the covenant of good faith and
fair dealing, and the remaining "catch-all claims." See Hurst 1,2012 WL 426018, at *7-18. The
court dismissed the complaint and found futility in amendment. Id. at * 18.
Undeterred by the ruling in Hurst I (affirmed on appeal), Hurst commenced two more
actions raising the same or similar claims against the same defendants, including: (1) Hurst v.
Harbert, Civ. :No. 13-558-GBL-JFA (E.D. Va.) filed May 3,2013, raising DPPA, 42 U.S.C.

§ 1983 claims, and supplemental state claims including breach of the implied covenant of good
faith and fair dealing, misappropriation of Hurst's name, violation of VPIPA, civil conspiracy,
intentional infliction of emotional distress, and tortious interference with contractual relations
against Harbert, Wiegard, Harbin, Shalk, Skiles, State Farm, and Doe defendants. 2 Upon
screening, the district court dismissed the federal claims as frivolous and for failure to state a
claim upon which relief may be granted pursuant to 28 U.S.c. § 1915(e)(2)(B)(i) and (ii) and
declined to exercise supplemental jurisdiction over the state law claims. 3 See Hurst v. Harbert,
2013 WL 12107769 (E.D. Va. Sept. 30,2013), appeal dismissed, 577 F. App'x 145 (4th Cir. June
20,2014) ("Hurst If'); and (2) Hurst v. Harbert, Civ. No. 15-033-GEC (W.D. Va.) filed May 6,

2015, raising the same claims against the same defendants as in Hurst J1.4 Upon screening, the

2There are few changes between the instant complaint (D.I. 2) and complaint filed in Civ.
No. 13-558-GBL-JFA at D.I. l. The main difference is that the instant complaint contains a
paragraph 42 while the complaint in 13-558-GBL-JFA does not.
3The case was dismissed without prejudice. Hurst v. Harbert, Civ. No. 13-0588 at D.L 4.
4There are few changes between the instant complaint (D.!. 2) and complaint filed in Civ.
No. 15-033-GEC at D.l. 2. The main difference is that the complaint in 15-033-GEC includes
"added 'factual content' required by dismissal order" while that information is not included in
the instant complaint.

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district court dismissed the federal claims for failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and declined to exercise supplemental
jurisdiction over the state law claims. 5 See Hurst v. Harbert, 2015 WL 3505557 (W.D. Va. June
3,2015), aff'd, 630 F. App'x 209 (4 th Cir. Jan. 19,2016) ("Hurst 1If').

As discussed, the instant complaint contains virtually identical claims as those raised in
Hurst I, Hurst II, and Hurst III. As in Hurst II and Hurst III, Hurst now alleges that, on May 6,

20 II, during the course of the Hurst I litigation, the defendants filed unredacted copies of the
same personal information previously disclosed by the defendants and that there were numerous
out-of-court disclosures of his personal information (none of which are identified). (D.1. 2 at
~~

4, II.) Skiles moves for dismissal on the grounds of res judicata and for failure to state claims

upon which relief may be granted. (D.!. 17, 18.) Shalkjoins Skiles' motion to dismiss and seeks
dismissal on the basis of res judicata, collateral estoppel, and for failure to state claims upon
which relief may be granted. (D.l. 29, 30.) Wiegard and Harbert joint Skiles' and Shalk's
motions to dismiss and move for dismissal on the grounds of res judicata, collateral estoppel, and
as time-barred. (D.!. 37, 38.) State Farm and Harbin move for dismissal on the grounds of res
judicata, as time-barred, and for failure to state claims upon which relief may be granted. (D.I.
40,41.) All the defendants ask the court to enjoin Hurst from filing serial lawsuits. Hurst
opposes the motions. He requests entry of default as to Harbert, Shalk, and Wiegard, and moves
to strike Skiles' sur-reply brief. 6 (D.I. 32,48.)

5The case was dismissed without prejudice. Hurst v. Harbert, Civ. No.l5-033 at D.L 7.
6The court will deny Hurst's motion to strike Skiles' filing titled "Sur-Reply Brief in
Support of Defendants' Motion to Dismiss Complaint." (D.l. 48.) A review of the court docket
indicates that Skiles filed a motion to dismiss (D.L 17) with supporting memorandum CD.!. 18),

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III.

MOTIONS TO DISMISS

A.

Standard of Review

Because Hurst proceeds pro se, his pleading is liberally construed and his complaint,
"however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers."? Erickson v. Pardus, 551 U.S. 89,94 (2007) (internal quotation marks
omitted). The defendants move for dismissal pursuant to Rule 12(b)(6).
Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires
the court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372 F.3d
218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the claims." In re Burlington Coat "Factory
Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the

court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in
the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not
entitled to relief." lv/aia v. Aetna, Inc., 221 F.3d 472,481-82 (3d Cir. 2000) (internal quotation
marks omitted).
A well-pleaded complaint must contain more than mere labels and conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A

plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See

Hurst filed a response to the motion to dismiss (OJ. 27), and Skiles filed a reply to Hurst's
response, but misnamed the filing as a "sur-reply brief' as opposed to its proper designation as a
reply brief.
7Hurst is not unskilled in the law. In 1969 he was a licensed attorney admitted to the
State Bar of California. He maintains a "not eligible" status for failure to pay Bar member fees.
See http://members.calbar.ca.gov (last visited June 19,2017).
7

Johnson v. City o.fShelby, _U.S._, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed,

however, for imperfect statements of the legal theory supporting the claim asserted. See id. at
346.
Under the pleading regime established by Twombly and Iqbal, a court reviewing the
sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must
plead to state a claim; (2) identify allegations that, because they are no more than conclusions,
are not entitled to the assumption of truth; and (3) when there are well-pleaded factual
allegations, assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief. See Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016).
Deciding whether a claim is plausible will be a "context-specific task that requires the reviewing
court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.
See Williams v. BASF Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 2014) (citing Iqbal, 556 U.S. at

678 and Twombly, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at 678. At bottom, "[t]he complaint must state
enough facts to raise a reasonable expectation that discovery will reveal evidence of [each]
necessary element" of a plaintiff s claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522
F.3d 315,321 (3d Cir. 2008) (internal quotation marks omitted).

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B.

Discussion

The court turns to the case dispositive issues of claim and issue preclusion. The
defendants contend that the instant complaint represents yet another action raising previously
adjudicated claims arising from State Farm's denial of Hurst's 2001 claim for the theft of his
van. They argue that Hurst presents the same allegations as those raised before this court in
Hurst I and urge this court to dismiss the complaint for the same reasons as set forth in the

court's February 9, 2012 opinion. Tn Hurst I, this court stated,
Federal courts in Maryland and Virginia have found, and this court agrees with
them, that Hurst is barred under the doctrines of claim and issue preclusion to
relitigate his claims relating to the actions of State Farm, Harbin, and Wiegard,
and Harbert; individuals who were defendants in prior federal litigation Hurst
filed against them. To the extent Hurst seeks to raise additional claims that could
have been raised in his prior actions, said claims are also barred. See CoreStates
Bank, N.A. v. Huts Am., Inc., 176 F.3d 187, 194 (3d Cir. 1999). Hurst's time to
raise his claims occurred when he unsuccessfully sought recovery in the District
Courts in Virginia and Maryland. Hurst may not relitigate the claims he currently
raises against State Farm, Harbin, Wiegard, and Harbert as they are barred under
the doctrines of claim and issue preclusion.
Hurst 1,2012 WL 426018, at *7.

The instant complaint raises claims alleging violations of the DPPA (Counts I and II) and
violations of 42 U.S.c. § 1983 (Count III). With the exception of Skiles, who was not a
defendant in Hurst I, Hurst raises the same DPPA and § 1983 claims against the same defendants
(i.e., Wiegard, Harbin, Harbert, State Farm, and Shalk) in this case as in Hurst I. This court

dismissed these claims in Hurst /. In addition, these claims raised against Skiles, as well as the
other named defendants in this action, in Hurst II and Hurst III, were dismissed without
prejudice.

9

Count I of the instant complaint also alleges breach of the implied covenant of good faith
and fair dealing and of the written privacy policy of State Farm, Count VI alleges civil
conspiracy, and Count VII alleges intentional infliction of emotional distress, although none of
the counts indicate the state law under which it is raised. In Hurst I, the court dismissed these
claims, as raised under Delaware law, for failure to state claims upon which relief may be
granted. S In Count VIII, the complaint alleges tortious interference with contractual relations
under Delaware law. 9 The court dismissed a similar claim in Hurst I for failure to state a claim
upon which relief may be granted. Finally, the instant complaint alleges misappropriation of
Hurst's name under Virginia common law (Count IV) and violations of the VCPA and the
VPIPA (Count V). Hurst raised these claims against all the defendants in Hurst H and Hurst III.
In both cases, the district court dismissed the federal claims and declined to exercise jurisdiction
over the supplemental state claims.
"Under the doctrine of res judicata (referred to now as claim preclusion), a judgment in a
prior suit involving the same parties, or parties in privity with them, bars a subsequent suit on the
same cause of action." See Fairbank's Capital Corp. v. Milligan, 234

App'x 21, 23 (3d Cir.

2007) (unpublished); Transamerica Occidental Life Ins. Co. v. Aviation Office ofAm. , Inc., 292
F.3d 384, 392 (3d Cir. 2002). "The rationale is that if the adjudication of an action is binding on
parties in privity with the parties fonnally named in the litigation, then any claims against parties

8The court also dismissed civil conspiracy claims raised under 42 U.S.c. § 1983. See
Hurst I, 2012 WL 426018, at *13.
91n Hurst I, the court found that the defendants were protected under the absolute
litigation privilege. The instant complaint alleges in Count VIII that the application of this
privilege violates the DPPA and the Supremacy Clause and guarantees continued injures to
Hurst.
10

in privity should be brought in the same action lest the door be kept open for subsequent
relitigation of the same claims." Transamerica Occidental, 292 F.3d at 392.
Collateral estoppel, also known as issue preclusion, "refers to the preclusive effect of a
judgment on the merits of an issue that was previously litigated or that could have been
litigated." See Fairbank's Capital Corp., 234 F. App'x at 23. Issue preclusion occurs "[ w]hen
an issue of fact or law is actually litigated and determined by a valid and final judgment, and the
determination is essential to the judgment, the determination is conclusive in a subsequent action
between the parties, whether on the same or a different claim.'" Jean Alexander Cosmetics, Inc.
v. L 'Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir. 2006) (quoting Restatement (Second) of

Judgments § 27 (1982)). There are four requirements for the application of collateral estoppel:
(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the
previous determination was necessary to the decision; and (4) the party being precluded from
relitigating the issue was fully represented in the prior action." Id (internal quotation marks and
citations omitted).
In Hurst I, this court agreed with federal courts in Maryland and Virginia that Hurst is
barred under the doctrines of claim and issue preclusion to relitigate his claims relating to the
actions of State Farm, Harbin, and Wiegard, and Harbert; individuals who were defendants in
prior federal litigation Hurst filed with regard to claims arising from State Farm's denial of
Hurst's 2001 claim for the theft of his van. Hurst 1,2012 WL 426018, at *7. In addition, in

Hurst I, this court granted the defendants' motions to dismiss and found amendment futile. See
id at * 18. As discussed, the allegations in Hurst I raised against Wiegard, Harbin, Harbert, State
Farm, and Shalk (all of which related to the 2001 insurance claim) included the following

11

dismissed claims: DPPA, 10 42 U,S.C. § 1983, Delaware conspiracy, fraud, false light invasion of
privacy, fraudulent concealment, and fraud on the court, abuse of process, intentional infliction
of emotional distress, tortious interference with contractual relations, tortious interference with
business relations, breach of the covenant of good faith and fair dealing, and various "catch-all
claims," See Hurst 1,2012 WL 426018, at *7-18. Many of these claims are again raised in the
instant action,
Skiles was not a named defendant in Hurst I. 11 However, he was counsel of record for
Rehoboth Beach, Speakman, and Harleysville Mutual Insurance and, hence, in privity with those
parties in Hurst I. See Henglein v, Colt Indus, Operating Corp" 260 F.3d 201,209 (3d Cir.
2001) ("Both parties to the declaratory judgment suit were represented by the same attorneys who

l°Section 2721(a) of the DPPA provides that state DMVs "shall not knowingly disclose or
otherwise make available" the personal information contained in state motor vehicle records,
except in accordance with the Act. The DPPA creates a private cause of action against any
"person who knowingly obtains, discloses, or uses personal information, from a motor vehicle
record, for a purpose not permitted under [the Act]." Maracich v, Spears, _U.S._, 133 S.Ct.
2191,2199 (2013) (citing § 2724(a)), Hurst seems to argue that prior court rulings are null or
overruled by Maracich, decided in 2013, that analyzed the scope of the litigation exception and
held that an attorney's solicitation of prospective clients for ongoing litigation fell outside the
bounds of § 2721 (b)( 4). The ruling in Maracich is factually distinguishable from the instant
case. In addition, the instant complaint fails to state a claim for relief under this section, given
that Hurst does not allege that the defendants obtained his personal information from his state
motor vehicle record. Rather, Hurst states, and as previously determined by this court, he
provided his personal information to the defendants via an affidavit that he submitted to State
Farm in 2001. In addition, the litigation exception as set forth in (b)(4) is applicable and, hence,
there can be no violation.
llThe court considers Hurst's argument that res judicata does not attach to Skiles because
Hurst II and Hurst III, both naming Skiles as a defendant, were dismissed without prejudice, See
Venuto v, Witco Corp., 117 F.3d 754, 760 (3d Cir. 1997) (when an earlier court dismisses a claim
"without prejudice," res judicata does not bar a party from raising that claim in a subsequent
action), The cases dismissed without prejudice, however, do not negate Skiles' privity with the
defendants in Hurst I and that ruling's preclusive effect.
12

appeared in the Henglein case. There can be no question about privity or identity of issues in the
two cases."). "Privity 'is merely a word used to say that the relationship between one who is a
party on the record and another is close enough to include that other within the res judicata. '"
111arran v. Marran, 376 F.3d 143, 151 (3d Cir. 2004) (quoting EEOC v. Us. Steel Corp., 921

F.2d 489, 493 (1990)). The effect of privity is that the ruling in Hurst J that is res judicata as to
Rehoboth Beach, Speakman, and Harleysville Mutual Insurance, is also res judicata to Skiles
who represented them in Hurst J as he is in privity with them. See Jacopine v. New Amsterdam
Cas. Co., 379 F.2d 311, 312 (3d Cir. 1967).

Hurst's time to raise the claims in this action occurred when he unsuccessfully sought
recovery in this court and district courts in Virginia and Maryland. Hurst may not relitigate the
claims he currently raises against the defendants as they are barred under the doctrines of claim
and issue preclusion. To the extent Hurst seeks to raise additional claims, such as the claims
raised under Virginia law, said claims could have been raised in Hurst's prior actions, and they
are also barred. 12 For these reasons, the court will grant the defendants' motions to dismiss.

12Counts I, II, III, VI, VII, and VIII were previously raised by Hurst in Hurst 1. Counts IV
and V are raised here for the first time, although they were raised in the two recent lawsuits filed
by Hurst that were dismissed with prejudice. Even were Hurst not barred from raising the
claims, it is appropriate to dismiss Counts IV and V for failure to state claims upon which relief
may be granted. Count IV raises a misappropriation of name under Virginia law. Because
Virginia does not recognize the common law tort of invasion of privacy based on an
unauthorized use of a person's name, dismissal is appropriate. See WJLA-TV v. Levin, 264 Va.
140,564 S.E. 2d 383 (Va. 2002). Count V raises claims under VCPA and VPIPA. The
allegations fail to state claims upon which relief may be granted under the VCPA and VPIP A,
see Va. Code Ann. §§ 59.1-200(A)(43), 59.1-443.2, 59.1-444, and, further, the claims are time­
barred by the two year limitations period for VCPA and VPIPA claims, see Va. Code Ann. §§
59.1-204.1, 59.1-443.3,59.1-444. Therefore, dismissal of Count V is also appropriate.

13

IV.

MOTION FOR ENTRY OF DEFAULT
On February 8, 2017, Hurst filed a request for entry of default on the grounds that Shalk,

Wiegard, and Harbert failed to plead or otherwise defend. (D.L 32.) The defendants respond
that they were not required to answer or otherwise respond until on or before February 21,2017,
and that they timely tiled motions to dismiss.
Under Fed. R. Civ. P. 55(a), "[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a). Timely serving and
filing a motion to dismiss under Fed. R. Civ. P. 12(b), precludes entry of default. See Francis v.
Joint Force Headquarters Nat '[ Guard, 2006 WL 2711459, (D.N.J. Sept. 19,2006), afJ'd in
part, 247 F. App'x 387 (3d Cir. 2007) (unpublished).
According to the court docket, Shalk, Wiegard, and Harbert were to file an answer or
otherwise plead on or before February 21,2017, and they did so. (See D.1. 19,20,21.) Shalk
filed his motion to dismiss on January 27,2017 (D.1. 29), and Wiegard and Harbert filed their
motion to dismiss on February 21,2017 (D.l. 37). Hurst prematurely requests entry of default.
Therefore, the court will deny the motion. (D.I. 32.)

V.

VEXATIOUS LITIGANT
Hurst has engaged in filing numerous lawsuits that contain frivolous and repetitive legal

arguments and claims that are vexatious and abusive of the judicial process. These lawsuits all
raise issues relating to matters that stem from State Farm's denial of an insurance claim made by
Hurst for the April 3, 2001 theft of his customized van, including but not limited to claims of: (1)
violations of the DPPA; (2) violations of 42 U.S.C. § 1983; (3) violations of privacy rights

14

under the Fourth Amendment of the United States Constitution; (4) constitutional violations of
the right to privacy by publicizing private facts and by false light; (5) conspiracy; (6) retaliation;
(7) fraud, fraudulent concealment, and fraud on the court; (8) abuse of process; (9) intentional

infliction of emotional distress; (I 0) tortious interference with contractual relations; (11) tortious
interference with business relations; (12) inadequate hiring, training, supervision, and discipline;
(13) breach ofthe covenant of good faith and fair dealing and privacy policy; (14) violations of
VCP A and VPIP A; and (15) misappropriation of name. The lawsuits were filed against Skiles,
Shalk, Wiegard, Harbert, Harbin, State Farm, Rehoboth Beach, Speakman, Banks, Connors,
United National Insurance, Harleysville Mutual Insurance, Jones, Major, McGavin, Salisbury,
Webster, Wiley, and Smullen.
In addition to the instant action, Hurst has filed the following lawsuits in this court and
other federal courts all related to matters that stem from State Farm's denial of an insurance
claim made by Hurst for the April 3, 2001 theft of his customized van, as follows: Hurst v. State
Farm l'vfut. Auto. Ins. Co., Civ. No. 04-1350-TSE-BRP (E.D. Va.) (dismissed Nov. 15,2004);
Hurst v. State Farm Mut. Auto. Ins. Co., Civ. No. 05-776-GEC (W.D. Va.) (summary judgment
granted in favor of defendants Sept. 26,2008), ajJ'd as modified, No. 08-2223 (4 th Cir. Apr. 29,
2009); Hurst v. State Farm Ji1ut. Auto. Ins. Co., Civ. No. 08-2907-WMN (D. Md.) (dismissed
Nov. 19,2008), aII'd, No. 08-2372 (4th Cir. Apr. 29, 2009); Hurst v. City a/Salisbury, Civ. No.
10-2516-WDG (D. Md.) (dismissed Oct. 10,2010) ajJ'd, No. 10-2774 (4 th Cir. May 31,2011);
Hurst v. State Farm Mut. Auto. Ins. Co., Civ. No. IO-IOOI-GMS (D. Del. (dismissed Feb. 9,
2012), ajJ'd, No. 12-1654 (3d Cir. Oct. 24, 2012); Hurst v. Harbert, Civ. No. 13-558-GBL-JFA
(E.D. Va.) (dismissed Sept. 30, 2013), appeal dismissed, No. 13-2524 (4 th Cir. June 20, 2014);

15

and Hurst v. Harbert, Civ. No.15-033-GEC (W.D. Va.) (dismissed June 3, 2015), aff'd, No. 16­
1242 (4 th Cir. Aug. 22, 2016).
Because of Hurst's litigious activity, which the court tinds vexatious, the court has the
power to enjoin him from filing meritless pleadings where the pleadings raise issues identical or
similar to those that have already been adjudicated. See 28 U.S.C. § 1651; See Matter ofPacker

Ave. Assoc., 884 F.2d 745, 747 (3d Cir. 1989); Yadav v. Surtees, 87 F. App'x 271 (3d Cir. 2004)
(unpublished). The court has reviewed the complaints and opinions dismissing them, in each of
the above-listed cases, and note that they are repetitive, frivolous and/or fail to state claims upon
which relief may be granted. Indeed, with his repetitive filings, Hurst has abused the legal
process.
Therefore, Hurst will be ordered to show cause, in writing, why he should not be enjoined
from filing any complaint, lawsuit, or petition for writ of mandamus, relating to matters that stem
from State Farm's denial of an insurance claim made by Hurst for the April 3, 2001 theft of his
customized van, including, but not limited to actions against Skiles, Shalk, Wiegard, Harbert,
Harbin, State Farm, Rehoboth Beach, Speakman, Banks, Connors, United National Insurance,
Harleysville Mutual Insurance, Jones, Major, McGavin, Salisbury, Webster, Wiley, and Smullen.
or their counsel who represents or represented them.
VI.

CONCLUSION
For the above reasons, the court will grant the defendants' motions to dismiss (D.1. 17,

29,37,40) and will deny the plaintiffs the request for entry of default (D.1. 32) and motion to

16

strike (D.1. 48).13 Amendment is futile. See Foman v. Davis, 371 U.S. 178, 182 (1962).
An appropriate order will be issued.

cJ~
~7 ,2017
Wilmington, Delaware

13The court does not address the other grounds for dismissal raised by the defendants, but
notes that dismissal is appropriate based upon the reasoning in the rulings in Hurst 1, Hurst 11,
and Hurst III for failure to state a claim upon which relief may be granted, and as time-barred.

17