Nails v. Mastercard Disputes
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. An Order of Dismissal will be filed separately. re: 2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Angela Nails. Signed by District Judge Carol E. Jackson on 7/1/15. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:15CV983 CEJ
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for leave to proceed in forma
pauperis. The motion will be granted. Additionally, having reviewed the case, the Court will
dismiss it under 28 U.S.C. § 1915(e), or in the alternative, Fed.R.Civ.P. 12(h)(3) for lack of
subject matter jurisdiction.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court must dismiss a complaint filed in forma
pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief. An action is
frivolous if it Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose of
vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987),
aff=d 826 F.2d 1059 (4th Cir. 1987). To state a viable claim for relief, a civil rights plaintiff must
plead facts, not conclusions, to support his causes of action. E.g., Gregory v. Dillards, Inc., 565
F.3d 464, 473 (8th Cir. 2009) (en banc). “A plaintiff must assert facts that affirmatively and
plausibly suggest that the pleader has the right he claims rather than facts that are merely
consistent with such a right.” Id. (quotations and citation omitted).
Plaintiff brings this action against defendant “MasterCard Disputes” to recover damages
arising from an alleged improper charge to her credit card. According to plaintiff’s complaint,
plaintiff used her MasterCard credit card to purchase a one-year warranty from an automobile
dealership for an engine for her car. Plaintiff later discovered that the dealership had charged her
for a two-year warranty. Plaintiff contacted defendant to dispute the charge and to seek a refund.
However, defendant allegedly refused to permit plaintiff to file a formal dispute. Plaintiff seeks
to recover the amount charged to her credit card by the automobile dealership.
Prior Litigation Against MasterCard International Inc.
On January 14, 2015, plaintiff filed a complaint against MasterCard based on the same
set of facts as those alleged in the instant action. See Nails v. MasterCard Disputes, 4:15CV126
Service was initiated on plaintiff’s complaint, and defendant MasterCard
International Incorporated filed a motion to dismiss plaintiff’s complaint on March 13, 2015,
asserting that plaintiff’s complaint lacked subject matter jurisdiction and failed to state a claim
upon which relief could be granted.
On April 14, 2015, the Court found that plaintiff’s complaint failed to state a claim upon
which relief could be granted, pursuant to Fed.R.Civ.P.12(b)(6). The Court found that plaintiff
had alleged in her civil cover sheet that she was attempting to bring claims against defendant
under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq., and 15 U.S.C. § 1643,
which limits a cardholder’s liability for unauthorized use of a credit card. However, plaintiff had
failed to allege facts sufficient to state a plausible claim for relief under either cause of action.
Plaintiff’s complaint was therefore dismissed with prejudice. See Nails v. MasterCard Disputes,
4:15CV126 CEJ (E.D.Mo.). Plaintiff failed to file an appeal of the order of dismissal.
In the instant complaint, plaintiff once again seeks to bring a lawsuit against MasterCard
Disputes. The allegations she asserts here are identical to those asserted in the prior case. See
Nails v. MasterCard Disputes, 4:15CV126 CEJ (E.D.Mo.).
However, plaintiff has not
mentioned either the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq., or a cause
of action under 15 U.S.C. § 1643, in the present action.1 To the extent plaintiff believes these
causes of action are included in her complaint, then the complaint must be dismissed pursuant to
the doctrine of res judicata. If indeed, these claims are meant to be excluded from the present
complaint, then the complaint is subject to dismissal for lack of federal question jurisdiction.
Res judicata, or claim preclusion, applies against parties who participated in prior
proceedings and “had a full and fair opportunity to litigate the matter in the proceeding that is to
be given preclusive effect.” Regions Bank v. J.R. Oil Co., LLC, 387 F.3d 721, 731 (8th
Cir.2004). Under claim preclusion, a final judgment bars any subsequent suit where “(1) the first
suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction;
(3) both suits involve the same parties (or those in privity with them); and (4) both suits are
based upon the same claims or causes of action.” Costner v. URS Consultants, Inc., 153 F.3d
667, 673 (8th Cir.1998). The Eighth Circuit interprets the phrase “the same claims or causes of
action” to mean claims that arise out of the same nucleus of operative facts.
International Union EETSM Workers, 390 F.3d 1049, 1052 (8th Cir.2004) (noting the court
adopted the position of the Restatement (Second) of Judgments, § 24). As plaintiff had a full and
fair opportunity to litigate the prior action in front of the present Court and the prior action was
The Court notes that plaintiff failed to file a civil cover sheet in the present action.
dismissed, with prejudice, her present action must be dismissed pursuant to the doctrine of res
However, to the extent plaintiff has intentionally omitted any federal claims in the instant
complaint, then the Court lacks jurisdiction over this matter, and the action must be dismissed
pursuant to Fed.R.Civ.P.12(h)(3).
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc.
#2] is GRANTED.
An Order of Dismissal will be filed separately.
Dated this 1st day of July, 2015.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
In addition to res judicata, it is apparent that plaintiff is attempting to harass MasterCard with
what appears to be a second lawsuit in this Court. This is also grounds for termination of the
present action, pursuant to 28 U.S.C. § 1915 under the maliciousness standard of the statute. A
court may determine that an action or allegation is Amalicious@ by referring to objective factors
such as the circumstances and history surrounding the filing, the tone of the allegations, and
whether probative facts vital to the life of the lawsuit have been alleged. Spencer v. Rhodes, 656
F. Supp. 458, 463 (E.D.N.C. 1987), aff=d 826 F.2d 1059 (4th Cir. 1987). An action is malicious
when it is undertaken for the purpose of harassing litigants and not for the purpose of vindicating
a cognizable right. Id. at 461-63.
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