D'Aquin v. Penske Truck Leasing Co., L.P. et al
Filing
28
ORDER AND REASONS granting 7 Motion to Dismiss for Lack of Jurisdiction. Party Jeffery Bullard, Ken Coots, Jonathan Foley, Brian Hard, Roger Penske, Sr, Penske Truck Leasing Co., L.P., Dennis Abruzzi and Marc Athen dismissed. Signed by Judge Sarah S. Vance on 11/20/2018. (am)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THOMAS L. D’AQUIN
CIVIL ACTION
VERSUS
NO. 18-3090
PENSKE TRUCK LEASING
COMPANY, L.P. ET AL.
SECTION “R” (4)
ORDER AND REASONS
Before the Court is defendant Penske Truck Leasing Company L.P.’s
motion to dismiss.1 Because plaintiff’s claim is barred by res judicata, and
because plaintiff fails to state a claim, the Court grants the motion.
I.
BACKGROUND
Plaintiff Thomas L. D’Aquin filed this pro se lawsuit on March 22, 2018
against Penske, and against defendants Brian Hard, Roger Penske, Sr., Marc
Athern, Dennis Abruzi, Jeffery Bullard, Ken Coots, and Jonathan Foley, who
are current and former executives of Penske.2 Plaintiff rented a truck from
Penske and kept it beyond its return date. 3 Plaintiff alleges that defendants
1
2
3
R. Doc. 7.
R. Doc. 1; R. Doc. 7-1 at 1.
R. Doc. 1 at 1 ¶ 1.
helped to illegally seize the rental truck.4 Defendants then allegedly seized
the property in the truck, failed to make an inventory of the property, and
then confiscated the property illegally in violation of D’Aquin’s Fourth
Amendment and Due Process rights.5 D’Aquin seeks $3 million in damages
for the items confiscated, which include $23,000 in cash, a printer, a cabinet,
pictures, a racquet stringer, tennis racquets, two watches, and all of plaintiff
and his spouse’s clothing.6 On May 24, 2018, defendants filed a motion to
dismiss for lack of federal jurisdiction under Federal Rule of Civil Procedure
12(b)(1) and failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).7 In the alternative, defendants move for a more definite statement
under Federal Rule of Civil Procedure 12(e). 8 Plaintiff opposes the motion. 9
Defendants also argue that this case should be dismissed on the basis of res
judicata because plaintiff filed a similar lawsuit in 2016 against Penske.10
4
5
6
7
8
9
10
Id. at 2 ¶ 3.
Id. at 1, 2 ¶¶ 4-6.
Id. ¶ 6.
R. Doc. 7.
Id. at 2.
R. Doc. 10.
R. Doc. 15 at 2-4.
2
II.
LEGAL STANDARD
A.
Rule 12(b)(1)
A court must dismiss under Rule 12(b)(1) when it lacks jurisdiction
over the subject matter of the plaintiff’s claim.
Two possibilities for
jurisdiction exist: federal question jurisdiction under 28 U.S.C. § 1331 and
diversity jurisdiction under 28 U.S.C. § 1332. Federal question jurisdiction is
governed by the well-pleaded complaint rule, which provides that “federal
jurisdiction exists only when a federal question is presented on the face of
the plaintiff’s properly pleaded complaint.” Beneficial Nat’l Bank v.
Anderson, 539 U.S. 1, 12 (2003) (citing Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987)); see also Vaden v. Discover Bank, 556 U.S. 49, 60 (2009)
(explaining that “a suit ‘arises under’ federal law ‘only when the plaintiff’s
statement of his own cause of action shows that it is based upon [federal
law]’”). Diversity jurisdiction exists only when there is complete diversity of
citizenship and the amount in controversy exceeds $75,000, exclusive of
interests and costs. 28 U.S.C. § 1332(a).
In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on
(1) the complaint alone, presuming the allegations to be true; (2) the
complaint supplemented by undisputed facts; or (3) the complaint
supplemented by undisputed facts and by the court’s resolution of disputed
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facts. Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424
(5th Cir. 2001); see also Barrera-Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996).
B.
Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, plaintiffs must plead
enough facts to “state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)). 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.” Id. at 678. A court
must accept all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal conclusions, or
formulaic recitations of the elements of a cause of action. Twombly, 550 U.S.
at 555. In other words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will reveal evidence
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of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. If there
are insufficient factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face
of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007),
the claim must be dismissed.
III. DISCUSSION
A.
Lack of Federal Jurisdiction
When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12
motions, subject matter jurisdiction must be decided first because “the court
must find jurisdiction before determining the validity of a claim.” Moran v.
Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) (quoting Gould,
Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445, 450 (6th Cir. 1988)).
Plaintiff’s complaint alleges “Fourth Amendment issues with Due
Process, Federal Interstate Commerce Act Article I of the Constitution.” 11 He
alleges that defendants carried out an “illegal seizure of the truck” and that
defendants “never went through court order nor due process to seize
11
R. Doc. 1 at 1.
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property.”12
These claims sound in the Fourth Amendment.
Because
D’Aquin is a pro se litigant, the Court construes his complaint liberally. See
Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). The Court therefore
finds that plaintiff has sufficiently alleged federal jurisdiction under 28
U.S.C. § 1331 for claims arising under federal law.
Defendants argue that federal jurisdiction does not exist because
federal claims must be colorable and non-frivolous to impart federal
jurisdiction. 13 But courts do not dismiss claims for lack of jurisdiction merely
because a plaintiff is unlikely to prevail on the merits. Holloway v. Pagan
River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012) (“In recent
years, the Supreme Court has cautioned against drive-by jurisdictional
rulings, that dismiss a claim for lack of jurisdiction . . . without explicitly
considering whether the dismissal should be for lack of subject matter
jurisdiction or for failure to state a claim.” (internal quotation marks and
citations omitted)); Green v. Ferrell, 664 F.2d 1292, 1294 (5th Cir. 1982) (“A
plaintiff's failure to state a meritorious cause of action does not defeat subject
matter jurisdiction.”). Defendants do not put forth evidence indicating that
12
13
Id. at 2 ¶¶ 3-4.
R. Doc. 7-1 at 9.
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plaintiff’s claims are so frivolous as to preclude federal jurisdiction. Thus,
the Court has subject matter jurisdiction over this matter.
B.
Res Judicata
Defendants argue that this case should be dismissed on res judicata
grounds because D’Aquin filed a similar suit against Penske in 2016, which
the Court dismissed for failure to state a claim. 14 The federal law of res
judicata applies to federal judgments. See In re Ark–La–Tex Timber Co.,
482 F.3d 319, 330 n.12 (5th Cir. 2007) (citing Semtek Int’l v. Lockheed
Martin Corp., 531 U.S. 497, 500 (2001)). A federal claim is barred under res
judicata when the following elements are met: “(1) the parties are identical
or in privity; (2) the judgment in the prior action was rendered by a court of
competent jurisdiction; (3) the prior action was concluded by a final
judgment on the merits; and (4) the same claim or cause of action was
involved in both actions.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d
559, 571 (5th Cir. 2005). In the Fifth Circuit, res judicata “forecloses
relitigation of claims that were or could have been advanced in support of the
cause of action on the occasion of the former adjudication.” Davis v. Dallas
Area Rapid Transit, 383 F.3d 309, 312-13 (5th Cir. 2004).
14
R. Doc. 15 at 2-4.
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To determine whether the two suits involve the same cause of action,
the Court applies the “transactional test” stated in the Restatement (Second)
of Judgments, § 24. Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395
(5th Cir. 2004). Under this approach, the Court asks, “whether the two
actions are based on the same ‘nucleus of operative facts.’” Davis, 383 F.3d
at 313 (citations omitted). It is the “nucleus of operative facts” in the first
action, rather than the “facts litigated” or the “type of relief requested,
substantive theories advanced, or types of rights asserted, [that] defines the
claim.” United States v. Davenport, 484 F.3d 321, 326-27 (5th Cir. 2007)
(citation omitted). The determination is a practical weighing of various
factors, including “whether the facts are related in time, space, origin, or
motivation, whether they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties’ expectations or business
understanding or usage.”
Davis, 383 F.3d at 313 (citations omitted).
Furthermore, “[i]f the cases are based on the same nucleus of operative facts,
the first judgment’s preclusive effect extends to all rights the original plaintiff
had ‘with respect to all or any part of the transaction, or series of connected
transactions, out of which the [original] action arose.’” Davenport, 484 F.3d
at 326 (quoting Petro-Hunt, 365 F.3d at 395.).
8
On April 29, 2016, plaintiff filed a complaint in which he brought
claims under 42 U.S.C. § 1983 against Penske and twenty-one other
defendants.15 The claim against Penske was based on the same interaction
as the complaint in this case, in which police seized a rental truck and
brought it to Penske, and “placed Penske in a situation being responsible for
anything missing.” 16 This suit clearly bars the instant action against Penske.
The 2016 lawsuit involved identical parties because Penske was named in the
earlier complaint. This Court held that it had jurisdiction in its order
granting the motion to dismiss,17 and the motion to dismiss was a final
judgment on the merits. The two suits involve the same cause of action under
the transactional test because they arose from the same nucleus of operative
fact, namely, the seizure of plaintiff’s rental truck and the truck’s return to
Penske.
The prior lawsuit also bars plaintiff’s claims against the other
defendants, even though they were not personally named in the earlier
complaint, because they are Penske executives who are in privity with the
corporate entity. Privity exists in three circumstances: “(1) where the nonparty is the successor in interest to a party’s interest in property; (2) where
15
16
17
Case No. 16-3862, R. Doc. 1.
Id. at 4 ¶ 15.
Case No. 16-3862, R. Doc. 41 at 3-4.
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the non-party controlled the prior litigation; and (3) where the non-party’s
interests were adequately represented by a party to the original suit.” Meza
v. Gen. Battery Corp., 908 F.2d 1262, 1266 (5th Cir. 1990). Defendants are
in privity under the first and second definitions because they either directed
the course of the previous litigation or they are successors to the legal
interests of the corporation. See Lubrizol Corp v. Exxon Corp., 871 F.2d
1279, 1288 (5th Cir. 1989) (holding that successive suits against employers
and employees for the same incident are precluded). Res judicata therefore
bars plaintiff from bringing a second suit against any defendant about the
same incident.
C.
Failure to State a Claim
Even if res judicata did not apply to plaintiff’s claims, plaintiff’s
complaint would still be dismissed under Rule 12(b)(6). The Court construes
plaintiff’s constitutional claims as claims under 42 U.S.C. § 1983. Section
1983 provides a civil remedy for deprivations of rights secured by the
Constitution and laws of the United States when that deprivation takes place
under color of state law. See Doe v. Rains Cty. Indep. Sch. Dist., 66 F.3d
1402, 1406 (5th Cir. 1995). The “under color of state law” requirement means
that the defendant in a Section 1983 action must have exercised power
“possessed by virtue of state law and made possible only because the
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wrongdoer is clothed with the authority of state law.” West v. Atkins, 487
U.S. 42, 49 (1988) (citing United States v. Classic, 313 U.S. 299, 326 (1941)).
This excludes purely private conduct, no matter how wrongful.
See
American Mfrs. Mut. Ins. Co v. Sullivan, 526 U.S. 40, 50 (1999). A private
defendant can only be liable under Section 1983 when he or she acted in
concert with state actors or when an agreement existed to deprive the
plaintiff of constitutional rights. Priester v. Lowndes County, 354 F.3d 414,
420 (5th Cir. 2004).
Conclusory allegations of such conduct are not
sufficient to overcome a motion to dismiss.
Id. (citing Brinkmann v.
Johnston, 793 F.2d 111, 113 (5th Cir. 1986)).
Plaintiff has not alleged sufficient facts to show an agreement between
defendants and the government that would violate Section 1983. While
plaintiff alleges that “[d]efendants had [the] truck confiscated and contents
held at Penske Facility” 18 and that that they “forbade him to retrieve”19 the
goods in the truck, these allegations do not indicate that defendants acted
under color of state law. Plaintiff does not allege that defendants made an
agreement with the New Orleans Police Department to deprive him of his
18
19
R. Doc. 1 at 1 ¶ 1.
Id. at 2 ¶ 3.
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property or his rights. Plaintiff’s motion must therefore be dismissed for
failure to state a claim under Rule 12(b)(6).
IV.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss is
GRANTED. The Court dismisses plaintiff’s complaint WITH PREJUDICE.
20th
New Orleans, Louisiana, this _____ day of November, 2018.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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