Shannon v. GFK Custom Research, LLC et al

Filing 78

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that defendants GfK Custom Research LLC, Doane Marketing Research, Brandy Young, Marilyn Switcher, Zsuzsanna Berencsi, and Mary Stevison's motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) is GRANTED. [Doc. 21] IT IS FURTHER ORDERED that plaintiff's claims against unserved defendants Karen Chilcote and Gloria Jean Lucarelli and nonexistent defendants GFK Custom Research North America and GFK Healthcare are sua sponte DISMISSED. IT IS FURTHER ORDERED that plaintiff's motions for leave to file an amended complaint are DENIED. [Docs. 68 and 77] IT IS FURTHER ORDERED that all other pending motions are DENIED as moot. [Doc. 35, 37, 38, 49, 52, 73, and 75] An order of dismissal will accompany this memorandum and order. Signed by District Judge Charles A. Shaw on 9/10/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TERRY SHANNON,
Plaintiff,
v.
GFK CUSTOM RESEARCH LLC, et al.,
Defendants.

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No. 4:13-CV-682 CAS

MEMORANDUM AND ORDER
This matter is before the Court on defendants GfK Custom Research LLC, Doane Marketing
Research, Brandy Young, Marilyn Switcher, Zsuzsanna Berensci, and Mary Stevison’s
(“defendants”) motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
The matter is fully briefed and ready for disposition. For the following reasons, defendants’ motion
will be granted.
Background
On March 6, 2013, plaintiff Terry Shannon, proceeding pro se, filed the current suit in the
Circuit Court of St. Louis County, Missouri. He alleges unlawful employment discrimination and
retaliation in violation of the Missouri Human Rights Act, Title VII of the Civil Rights Act of 1964,
Age Discrimination in Employment Act of 1967 (“ADEA”), and 42 U.S.C. § 1981. On April 11,
2013, defendants removed the case to this Court based on federal question jurisdiction pursuant to
28 U.S.C. §§ 1331 and 1441(a).
Defendants move to dismiss plaintiff’s case pursuant to Federal Rule of Civil Procedure
12(b)(1) and 12(b)(6) because plaintiff’s claims are barred by operation of Federal Rule of Civil

Procedure 41(a)(1), the two dismissal rule.1 Defendants state that during the course of the past
sixteen months, plaintiff has attempted to avoid any substantive ruling on his various complaints by
amending, dismissing, and refiling his lawsuits. Defendants state that because plaintiff has twice
voluntarily dismissed his prior complaints, the two dismissal rule operates to prohibit him from realleging the claims in the current complaint.
Plaintiff opposes the motion to dismiss. He states, inter alia, that in one of his prior state
court cases, defendants filed what the court should have construed as a summary judgment motion,
and therefore Rule 41(a)(1) does not apply. He also argues that the two dismissal rule should not
apply because his second dismissal occurred in state court.
Legal Standard
On a motion to dismiss, the Court accepts as true the factual allegations contained in the
complaint and grants the plaintiff the benefit of all reasonable inferences that can be drawn from
those allegations. See Lustgraaf v. Behrens, 619 F.3d 867, 872-73 (8th Cir. 2010). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility 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.
When ruling on a motion to dismiss, a court generally may not consider matters outside the
pleadings. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). It may,

1

Defendants argue, alternatively, that plaintiff failed to exhaust his administrative
remedies with respect to several claims and several individual defendants. Because the Court
finds the two dismissal rule bars this suit in its entirety, the Court will not consider defendants’
alternative grounds for dismissal.
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however, consider some public records, materials that do not contradict the complaint, or materials
that are necessarily embraced by the pleadings. Id. The Court may also consider “documents whose
contents are alleged in a complaint and whose authenticity no party questions, but which are not
physically attached to the pleading.” In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (8th Cir. 1996)
(citation omitted). In ruling on the pending motion, the Court has considered the state and federal
court records in Shannon I and Shannon II. The Court may consider these public records, whose
authenticity are not questioned, without treating the dismissal motion as a motion for summary
judgment under Federal Rules 12(d) and 56.
Procedural History
Plaintiff’s original lawsuit, Shannon v. GFK-Kynetec, et al., No. 4:11-CV-2181 CEJ
(Shannon I), was filed in this Court on December 16, 2011. In Shannon I, plaintiff alleged
discrimination and retaliation claims under the MHRA, Title VII, ADEA, and 42 U.S.C. § 1981
against defendants Doane Marketing Research, Linda Rooney, Marilyn Switcher, Brandy Young,
Mary Stevison, Gloria Jean Lucarelli, Zsuzsanna Berencsi, and Karen Chilcote.
Plaintiff voluntarily dismissed Shannon I on April 10, 2012.
Although Shannon I was pending less than four months, plaintiff filed two amended
complaints and five separate motions for leave to amend his complaint. See Shannon I, Doc. 4, 32,
34, 38, 42, 44, and 46. On March 21, 2012, the Court issued an Order on plaintiff’s motion for leave
to file a fifth amended complaint. Id. at Doc. 45. The Court advised plaintiff of various guidelines
for filing an amended complaint. The Court ordered plaintiff to file an amended complaint by April
30, 2012 that complied with the detailed instructions set forth in the Order. On March 28, 2012,
plaintiff filed what he captioned as his “Second Amendment to Civil Suit.” While awaiting
defendants’ response to the complaint, however, plaintiff filed a motion to dismiss the case without

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prejudice. On April 10, 2012, the Court granted plaintiff’s motion, stating that because no answer
or summary judgment motion had been filed, plaintiff could dismiss the action as a matter of right
under Rule 41(a)(1)(A)(i). Id. at Doc. 48.
Less than two weeks after dismissing Shannon I, plaintiff filed his second lawsuit, Shannon
v. GFK-Kynetec, et al., No. 12SL-CC01395 (“Shannon II”), in the Circuit Court of St. Louis
County. In Shannon II, plaintiff alleged nearly identical claims as in Shannon I under the MHRA,
Title VII, ADEA, and § 1981 against identical defendants. Defendants removed Shannon II to this
Court on May 14, 2012. See Shannon v. Doane Marketing Research, et al., No. 4:12-CV-865 CEJ
(also “Shannon II”), Doc. 1.
Plaintiff’s federal court filings in Shannon II were even more prolific than those in Shannon
I. These filings include the following: an amended complaint; a memorandum in support of the
amended complaint; two motions to further amend the complaint; a memorandum and exhibits to
support plaintiff’s claim against defendants for fraud on the court; two motions to remand; a motion
for partial summary judgment with supporting memorandum; an amended motion for partial
summary judgment with affidavit in support and with supporting memorandum; and an “addendum
to plaintiff’s opposition to defendants’ memorandum in opposition to plaintiff’s motion to remand.”
See also Shannon II, Doc. 29 at 2 n.2.
Among these filings was plaintiff’s amended complaint, filed May 17, 2012. Plaintiff
amended his complaint, as a matter of course pursuant to Rule 15(a)(1), to allege only claims under
the MHRA. By doing so, he abandoned all his federal claims against defendants. Because his
amended complaint alleged only state law claims under the MHRA, Shannon II was remanded to
state court on September 27, 2012. Id. at Doc. 29.

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Back in state court, plaintiff voluntarily dismissed his remaining MHRA claim in Shannon
II on February 20, 2013.
On March 6, 2013, plaintiff filed the instant action, Shannon v. GFK Custom Research, LLC,
et al., No. 4:13-CV-682 CAS (“Shannon III”), against defendants asserting nearly identical claims
under the MHRA, Title VII, ADEA, and § 1981.2 Defendants filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 41(a)(1)(B), or the two dismissal rule, which bars a plaintiff from
filing a third complaint alleging the same claims after having twice voluntarily dismissed the same.
Discussion
A.

Defendants’ Motion to Dismiss Pursuant to Rule 41(a)(1)(B)

Defendants argue plaintiff’s complaint should be dismissed pursuant to Federal Rule
41(a)(1), which provides in relevant part:
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. . . . [T]he plaintiff may dismiss an action
without a court order by filing:
(i) a notice of dismissal before the opposing party serves
either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have
appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the
dismissal is without prejudice. But if the plaintiff previously
dismissed any federal- or state-court action based on or including the
same claim, a notice of dismissal operates as an adjudication on the
merits.
Fed. R. Civ. P. 41(a).

2

In the five months that Shannon III has been pending in this Court, plaintiff has filed 27
motions.
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This provision, known as the two dismissal rule, is an exception to the general rule that a
dismissal by notice is without prejudice. Under the two dismissal rule, a plaintiff may pursue the
same action for a second time, but will be barred from litigating a third action. See 8 James Wm.
Moore et al., Moore’s Federal Practice ¶ 41.33[7][a] (3d ed. 2013); see also Engelhardt v. Bell &
Howell Co., 299 F.2d 480, 482-83 (8th Cir. 1962). “The purpose of the two dismissal rule is to
prevent the harassment of the defendant through the repeated commencement and dismissal of
actions based on the same claim.” Moore’s at ¶ 41.33[7][a]; Engelhardt, 299 F.2d at 483 (“Certainly
the commencement of three separate actions against the same defendant for the same claims with
. . . the necessary expense and inconvenience in connection therewith, the employment of counsel,
the removal of each case to federal court and the effect on defendant’s customers may well have
totaled up to be harassment . . . which the two dismissal rule sought to avoid or penalize.”).
Generally, if the second dismissal is taken in state court, it will not trigger the two dismissal
rule. But, a federal court will give res judicata effect to such a state court dismissal if the state has
enacted its own version of the two dismissal rule. Moore’s at ¶ 41.33[7][d]. Missouri state courts
have a similar rule of procedure, Missouri Rule of Civil Procedure 67.02. It provides, in relevant
part:
67.02. Voluntary Dismissal—Effect of
(a) . . . a civil action may be dismissed by the plaintiff without order of the court
anytime:
(1) Prior to the swearing of the jury panel for the voir dire examination, or
(2) In cases tried without a jury, prior to the introduction of evidence at trial.
A party who once so dismisses a civil action and thereafter files another civil
action upon the same claim shall be allowed to dismiss the same without prejudice
only:
(1) Upon filing a stipulation to that effect signed by the opposing party, or
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(2) On order of the court made on motion in which the ground for dismissal shall be
set forth.
(b) Except as provided in Rule 67.02(a), an action shall not be dismissed at the
plaintiff’s instance except upon order of the court upon such terms and conditions
as the court deems proper.
(c) A voluntary dismissal under Rule 67.02(a) shall be without prejudice unless
otherwise specified by the plaintiff. Any other voluntary dismissal shall be without
prejudice unless otherwise specified by the court or the parties to the dismissal.
Mo. R. Civ. P. 67.02.
Although the issue is not as straightforward as defendants suggest, the Court agrees with
defendants that plaintiff’s claims in Shannon III are barred by operation of the two dismissal rule.
(1)

Shannon I—The First Voluntary Dismissal

The first voluntary dismissal does not raise any difficult issues: on April 2, 2012, plaintiff
filed in federal court a “motion to dismiss without prejudice and without cost.” The Court granted
the motion, stating that because no answer or summary judgment motion had been filed, “plaintiff
may dismiss the action as a matter of right. Fed. R. Civ. P. 41(a)(1)(A)(i).” Shannon I, Doc. 48.
The Court’s citation refers specifically to Federal Rule 41(a)(1)(A), which pertains to a voluntary
dismissal without court order. This dismissal was a unilateral notice of dismissal pursuant to Federal
Rule 41(a)(1)(A).
(2)

Shannon II—The Second Voluntary Dismissal

The second voluntary dismissal, however, raises an issue: it was taken in Missouri state
court under the Missouri Rules of Civil Procedure. Defendants incorrectly assert that the federal
rule is unconcerned with whether the second voluntary dismissal occurs in federal or in state court.
Defendants state: “Finally, plaintiff’s position is directly contradicted by the language of Federal
Rule of Civil Procedure 41 which states, ‘if the plaintiff previously dismissed any federal- or state-

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court action based upon or including the same claim, a notice of dismissal operates as an
adjudication on the merits.’” (Defs.’ Reply at 2).
Defendants’ quotation is taken out of context. In context, Rule 41 states: “[T]he plaintiff
may dismiss an action without a court order by filing [ ] a notice of dismissal. . . . Unless the notice
or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously
dismissed any federal- or state-court action based on or including the same claim, a notice of
dismissal operates as an adjudication on the merits.” By taking the quotation out of context,
defendants argue that the federal rule applies to the second dismissal whether the second dismissal
occurs in state or federal court. Reading the rule in its entirety, however, it is apparent that the rule
is unconcerned with whether the first dismissal (i.e., the “previous” dismissal) is in federal or state
court. In order for Rule 41 to be applicable to the second voluntary dismissal, the second voluntary
dismissal must be in federal court. If the second voluntary dismissal is taken in state court, it is
taken under the procedural rules of the state court. Its effect would be determined by the state court
rules. In Shannon I plaintiff took a voluntary dismissal in federal court; Federal Rule 41 applies to
Shannon I. In Shannon II, plaintiff took a voluntary dismissal in Missouri state court; Federal Rule
41 does not apply to Shannon II.
Defendants are not out of luck, however. Although a second state court dismissal generally
will not trigger the federal two dismissal rule (Moore’s at ¶ 41.33[7][c]), federal courts give res
judicata effect to such dismissals if the state has enacted its own version of the two dismissal rule.
See id. at ¶ 41.33[7][d]. Missouri has adopted its own version of the two dismissal rule, Missouri
Rule of Civil Procedure 67.02. Therefore, the fact that plaintiff’s second voluntary dismissal was
taken in Missouri state court does not preclude defendants from arguing the second dismissal should
be given res judicata effect in federal court.

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Finally, by its terms, the two dismissal rule requires that the second dismissal be of an action
based on or including the “same claim” as the first. Fed. R. Civ. P. 41(a)(1)(B); Moore’s at ¶
41.33[7][e] and [f]. Some courts have interpreted the “same claim” language of Rule 41 to apply
if the second case pursues the identical legal theory as the first; others hold that the rule applies
when the factual allegations of the two suits are substantially the same. Id. at ¶ 41.33[7][e]. The
Eighth Circuit does not appear to have weighed in on this issue. The Court has reviewed the claims
stated in Shannon I, Shannon II, and Shannon III and finds that plaintiff’s claims in each of the three
suits are factually and legally the same for purposes of Rule 41. Therefore, plaintiff is barred from
litigating this third action.
The two dismissal rule seeks to prevent the harassment of defendants through the repeated
commencement and unilateral dismissal of actions without court intervention. Plaintiff’s litigation
against defendants began on December 16, 2011 when he first filed his original suit in this Court.
Over the course of the last twenty months, plaintiff has filed more than seventeen complaints and
countless motions in state and federal courts. “It would seem that the two dismissal rule was
propounded to meet just this kind of situation.” Engelhardt v. Bell & Howell Co., 299 F.2d 480, 484
(8th Cir. 1962).
B.

Plaintiff’s Other Pending Motions

Plaintiff has seven other motions pending: (1) plaintiff’s motion for default judgment against
defendants GFK Custom Research North America and GFK Healthcare, or in the alternative,
plaintiff’s second motion to remand (Doc. 35); (2) plaintiff’s second motion for default judgment
against defendants GFK Custom Research North America and GFK Healthcare (Doc. 37); (3)
plaintiff’s motion requesting in camera review of additional privileged evidence that supports his
claims (Doc. 49); (4) plaintiff’s motion for leave to amend complaint (Doc. 68); (5) plaintiff’s

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motion for reconsideration of denial of plaintiff’s motion to amend his complaint (Doc. 73); (6)
plaintiff’s motion for an extension of time to serve unserved defendants (Doc. 75); and (7) plaintiff’s
motion for leave to file a second amended complaint (Doc. 77).
The Court has reviewed plaintiff’s proposed amended complaints. (Docs. 68-1 and 77-2).
Both reallege the claims previously voluntarily dismissed in Shannon I and Shannon II, and
therefore the proposed amendments do not cure plaintiff’s procedural problems and allowing the
amendments would be futile. See Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The Court will deny plaintiff’s two pending
motions for leave to amend his complaint. The Court will deny all other pending motions as moot.
C.

The Unserved Defendants and Nonexistent Defendants

Plaintiff has named as defendants Karen Chilcote and Gloria Jean Lucarelli.

Both

individuals were also named as defendants in Shannon I and Shannon II. Neither defendant has been
served in Shannon III. Because the two dismissal rule would bar plaintiff’s action against these
defendants, just as it bars the action against the moving defendants, the Court finds it appropriate
to dismiss plaintiff’s claims as to these unserved defendants sua sponte. It is patently obvious that
the plaintiff cannot prevail against these individuals based on the facts alleged in the complaint. See
Porter v. Fox, 99 F.3d 271, 273 (8th Cir. 1996); Addison v. Pash, 961 F.2d 731, 732 (8th Cir. 1992)
(per curiam); Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991).
Also, plaintiff has named as defendants GFK Custom Research North America and GFK
Healthcare. As the Court has previously ruled, these entities are nonexistent. See Shannon III, Doc.
46 at 5-7. Plaintiff cannot state a claim against a nonexistent entity, and therefore his claims against
these defendants must be dismissed.

Conclusion
For the foregoing reasons, the Court concludes that defendants have met the burden of
proving applicability of the two dismissal rule by a preponderance of the evidence. See Randall v.
Direct Buy, Inc., 2009 WL 4030533, *3 (E.D. Mo. Nov. 19, 2009) (citing Marquis v. Federal
Reserve Bank of Chicago, 286 F.3d 1014, 1017 (7th Cir. 2002)).
Accordingly,
IT IS HEREBY ORDERED that defendants GfK Custom Research LLC, Doane Marketing
Research, Brandy Young, Marilyn Switcher, Zsuzsanna Berencsi, and Mary Stevison’s motion to
dismiss plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) is
GRANTED. [Doc. 21]
IT IS FURTHER ORDERED that plaintiff’s claims against unserved defendants Karen
Chilcote and Gloria Jean Lucarelli and nonexistent defendants GFK Custom Research North
America and GFK Healthcare are sua sponte DISMISSED.
IT IS FURTHER ORDERED that plaintiff’s motions for leave to file an amended complaint
are DENIED. [Docs. 68 and 77]
IT IS FURTHER ORDERED that all other pending motions are DENIED as moot. [Doc.
35, 37, 38, 49, 52, 73, and 75]

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An order of dismissal will accompany this memorandum and order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this

10th

day of September, 2013.

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