PLONKA v. H&M INTERNATIONAL TRANSPORT INC.

Filing 15

OPINION filed. Signed by Judge Anne E. Thompson on 8/9/2017. (mps)

RECEIVED
NOT FOR PUBLICATION

AUG 0 9 2017

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

AT 8:30
WILLIAM T. WALSH
CLERK

M

ANDREAS PLONKA,
Plaintiff,
Civ. No. 16-9539

v.
OPINION
H&M INTERNATIONAL TRANSPORT,
Defendant.
THOMPSON, U.S.D.J.

INTRODUCTION
This matter is before the court upon the motion to dismiss brought by Defendant H&M
International Transportation, Inc. ("Defendant"). (ECF No. 12). Plaintiff Andreas Plonka
("Plaintiff'), proceedingpro se, opposes the motion. (ECF No. 13). The Court has decided tj:ie
motion based on the written submissions of the parties and without oral argument pursuant to
Local Civil Rule 78.l{b). For the reasons stated herein, Defendant's motion will be granted.
However, Plaintiff's Complaint will be dismissed without prejudice and Plaintiff will be granted
leave to file an amended Complaint.

BACKGROUND
Plaintiffs Complaint states that this case (Civ. No. 16-9539, hereinafter "Plonka Jr')
"stems from" a previous case in this Court (Plonka v. H&M International Transport, Civ. No.
14-01029, hereinafter "Plonka I'') between the same two parties involved here. (ECF No. 1,
CompI. at p. 6). Plaintiff alleges that both cases "involved the devaning [sic] of a 45' container
filled with household goods and personal effects in November 2012." .(Id.). Plaintiff alleges that
he suffered a "massive amount of damages and loss." (Id.). The Complaint acknowledges that
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summary judgment was entered in favor of Defendant in Plonka I. (Id.). However, the
Complaint states that "Plaintiff is not trying to appeal the original action but to start a new action
based upon the new discoveries of damages and loss" allegedly made by Plaintiff''while taking
inventory'' in November 2016, (id.), after this Court entered judgment in Plonka I.
In Plonka I, Plaintiff originally filed his Complaint in state court in November 2013, and
Defendant removed the case to this Court in February 2014. (See Plonka I, Civ. No. 14-1029
ECF No. 1, 36). Plaintiff alleged that Defendant damaged and/or lost his personal property that
was sent from Belgium in a shipping container. (See Plonka I, Civ. No. 14-1029 ECF No. 15, ·
36). On August 31, 2015, the Court issued an Opinion and Order on Defendant's motion for
summary judgment. (Plonka I, Civ. No. 14-1029 ECF No. 36, 37). The Court construed
Plaintiffs Complaint as including state law claims for conversion and negligence. (Id.). The
Court granted Defendant's motion for summary judgment on all claims, and entered judgment in
favor of Defendant. (Id.).
In this case, Plaintiff filed his handwritten Complaint along with an application to

proceed informa pauperis on December 19, 2016. (ECF No. 1).. Plaintiff originally failed to
submit a complete informa pauperis application or pay the required filing fee. (See ECF No. 6).
Subsequently, Plaintiff paid the required filing fee, and Plaintiff's Complaint was filed on the
docket. (ECF Entries dated 02/15/2017, 03/0112017). Defendant filed a motion to dismiss on
May 11, 2017. (ECF No. 12). Defendant's Motion to Dismiss is presently before the Court.

LEGAL STANDARD
A motion under Federal Rule of Civil Procedure l 2(b)(6) tests the sufficiency of a
complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden
of showing that no claim has been presented. Hedges v. United States, 404 F.3d 744, 750 (3d
Cir. 2005). When considering a Rule 12(b)(6) motion, a district court should conduct a three2

part analysis. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). "First, the court must
'take note of the elements a plaintiff must plead to state a claim."' Id.. (quoting Ashcroft v. Iqbal,
56 U.S. 662, 675 (2009)). Second, the court must accept as true all of a plaintiff's well-pleaded ·
factual allegations and construe the complaint in the light most favorable to the plaintiff. Fowler

v. UPMC Shadyside, 578 F.3d 203, 210-~ 1 (3d Cir. 2009); see also Connelly v. Lane Const.
Corp., No. 14-3792, 2016 WL 106159 (3d Cir. Jan. 11, 2016). However, the court may
disregard any conclusory legal allegations. Fowler, 578 F.3d at 203. Finally, the court must
determine whether the "facts are sufficient to show that plaintiff has a 'plausible claim for
relief."' Id. at 211 (quoting Iqbal, 556 U.S. at 679). If the complaint does not demonstrate more
than a "mere possibility of misconduct," the complaint must be dismissed. See Gelman v. State

Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679).
Additionally, the Third Circuit has explained that a motion to dismiss based on an
affirmative defense such as res judicata is proper if the application of res judicata is apparent on
the face of the complaint. Ryocline Prods., Inc. v. C&W Unlimited, 109 F.3d 883, 886 (3d Cir.
1997). However, the Court may properly look beyond the face of the Complaint to public
records, including judicial proceedings, to resolve a 12(b)(6) motion. S. Cross Overseas

Agencies, Inc. v. Wah Kwong Shipping Grp., Ltd., 181F.3d410, 426 (3d Cir. 1999).
In a case brought pro se, such as this one, the Court must construe the complaint liberally
in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93"""""94 (2007); Haines v. Kerner, 404
U.S. 519, 520-21 (1972). Liberal construction does not, however, require the Court to credit a
prose plaintiffs "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997). Even a prose complaint maybe dismissed for failure to state
a claim if the allegations set forth by the plaintiff cannot be construed as supplying facts to

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support a claim entitling the plaintiff to relief. See Milhouse v. Carlson, 652 F .2d 371, 3 73 (3d
Cir. 1981).

DISCUSSION

I.

Res Judicata
Defendant argues that res judicata1 bars Plaintiff's' claims. The preclusive effect to be

accorded a judgment "is determined by the preclusion law of the issuing court"-.here federal
law. Paramount Aviation Corp. v. Agusta, 178 F.3d 135, 135 (3d Cir. 1999). The doctrine of res
judicata mandates that a subsequent suit be barred ifthere has been: (1) a final judgment on the
merits in a prior suit; (2) based on the same cause of action; (3) between the same parties or their
privies. Labelle Processing Co. v. Swarrow, 72 F .3d 308, 313 (3d Cir. 1995). "If these three
factors are present, a claim that was or could have been raised previously must be dismissed as
precluded." CoreStates Bank, N.A. v. Huls Am., Inc., 176 F.3d 187, 194 (3d Cir. 1999).
In this case, all of the res judicata factors are present. First, the Third Circuit has noted
that summary judgment is a final judgment on the merits for res judicata purposes. Hubicki v.
ACF Indus. Inc., 484 F.2d 519, 524 (3d Cir. 1973). This Court previously granted summary
judgment in favor of Defendant in a prior lawsuit between these same parties based on the same
set of facts. (Plonka I, Civ. No. 14-01029, ECF Nos. 36, 37). This Court's granting of summary

judgment in favor of Defendant in Plonka I was a final judgment for purposes of res judicata.
Therefore, this factor is satisfied.

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"The term 'res judicata' has both a broad and a narrow meaning. Narrowly, ... it refers on1y to
claim preclusion. [The Court's] use of the term in this opinion likewise relates on1y to the claim
preclusion aspect ofresjudicata doctrine." Venuto v. Witco Corp., 117 F.3d 754, 758 n.5 (3d
Cir. 1997).

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Second, the instant lawsuit is based on the same cause of action as Plonka. I. The Third
Circuit has explained that it takes a "broad view" in deciding whether two suits are based on the
same cause of action. CoreStates Ban~ N.A., 176 F.3d at 194. To make this determination,
courts look to ''whether there is an essential similarity of the underlying events giving rise to the
various legal claims." Id. (quoting United States v. Athlone Indus., Inc., 746 F.2d 977, 984 (3d
Cir. 1984)). Additionally, the Third Circuit has noted that it considers ''whether the acts
complained of were the same, whether the material facts alleged in each suit were the same, and
whether the witnesses and documentation required to prove such allegations were the same."
Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991) (citations omitted). A

difference in the theory of recovery or relief sought is not dispositive of whether two suits are
based on the same cause of action for purposes of res judicata. Athlone, 746 F .2d at 984.
Here, both Plonka. I and Plonka. II are based on claims for alleged damage and loss of the
contents in a shipping container under Defendant's control in November 2012. The act
complained of-Defendant allegedly causing damage to Plaintifr s property while under
Defendant's control-is the same in both cases. The cases appear to be based on the same
incident, and the witnesses and documentation required to prove both cases appear to be the
same. Plaintiff's Complaint essentially concedes that the instant lawsuit is based on the same set
of facts as Plonka. I, and the Court is persuaded that the underlying events are identical in both
cases. Therefore, this factor is satisfied.
Third, both cases involved the same parties. Plaintiff here was Plaintiff in Plonka. I, and
Defendant was also the Defendant in Plonka. I. Thus, the third res judicata factor is satisfied.
Lastly, Plaintiff argues that Plonka. II should proceed because his claims in this case are
based on "new discoveries of damages and loss" allegedly made "while taking inventory" in
November 2016 (Compl. at p. 6), after this Court entered judgment in Plonka. I. However, res

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judicata applies "even where new claims are based on newly discovered evidence, unless the
evidence was either fraudulently concealed or it could not have been discovered with due
diligence." Haefaer v. N. Cornwall Twp., 40 F. App'x 656, 658 (3d Cir. 2002) (citingL-Tec
Electronics Corp. v. Cougar Electronic Organization, Inc., 198 F.3d 85, 88 (2d Cir. 1999)). In
this case, while Plaintiff alleges "new discoveries of damage and loss" and vaguely refers to
evidence of ''video surveillance" that was not available in Plonka I, Plaintiff does not specifically
identify what the purported newly-discovered evidence is. Nor does Plaintiff assert, much less
offer any facts to support, the idea that Defendant fraudulently concealed newly-discovered
evidence or that such evidence could not have previously been discovered with due diligence.
Plaintiffs unspecified and unsupported allegations of newly-discovered evidence do not
persuade the Court that res judicata does not apply to his claims as stated in his Complaint.
Therefore, the Court finds that res judicata applies to Plaintiff's claims as stated in his
Complaint. However, the Third Circuit has instructed that where a complaint is vulnerable to
Rule 12(b)(6) dismissal "a District Court must permit a curative amendment, unless an
amendment would be inequitable or futile." Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
Given that instruction, and the liberal construction afforded to pro se pleadings, the Court will
grant Plaintiff leave to amend his Complaint to attempt to demonstrate that his claims are not
barred by res judicata.

CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss will be granted. Plaintiff's
Complaint will be dismissed without prejudice, and Plaintiff will be granted leave to amend his
complaint. If Plaintiff wishes to file an amended Complaint, he must do so within 20 days of the
date of the accompanying Order or his Complaint may be dismissed with prejudice. Should

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•
,

Plaintiff timely file an amended Complaint consistent with the directives of this Opinion,
Defendant shall respond to the amended Complaint within 21 days of the Complaint being filed
on the docket. An appropriate order will follow.

Isl Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.

Date: August 9, 2017

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