PLONKA v. H&M INTERNATIONAL TRANSPORT INC.
OPINION filed. Signed by Judge Anne E. Thompson on 10/4/2017. (mps)
OCT 1 O2017
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILLIAM T. WALSH
·· . Plaintiff,
Civ. No. 16-9539
H&M INTERNATIONAL TRANSPORT,
This matter comes before the court upon the Motion to Dismiss brought by Defendant
H&M International Transportation, Inc. ("Defendant"). (ECF No. 18.) Plaintiff Andreas Plonka
("Plaintiff'), proceedingpro se, opposes the motion. (ECF No. 19.) The Court has decided the
motion based on the written submissions of the parties without oral argument pursuant to Local
Civil Rule 78.l(b). For the reasons stated herein, Defendant's motion is granted.
Plaintiff initially filed a Complaint under this docket (Civ. No. 16-9539, hereinafter
Plonka II) in December 2016. (Compl., ECF No. 1.) The originalComplaint noted that this
action "stems from" a previous case in this Court (Plonka v. H&M International Transport, Civ.
No. 14-1029, hereinafter Plonka I) between the same two parties involved here. (Compl. at 6).
Plaintiff alleged that both cases "involved the devaning [sic] of a 45' container filled with
household goods and personal effects in November 2012." (Id.) Plaintiff alleged that he suffered
a "massive amount of damages and loss." (Id.) The Complaint acknowledged that summary
judgment was entered in favor of Defendant in Plonka I. (Id.) However, the Complaint stated
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.), long after this CoUrt had entered judgment in Plonka I.
Plaintiff originally filed his Plonka I 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 Nos. 1, 36.) Plaintiff alleged that Defendant damaged and/or lost his personal property,
which was sent from Belgium in a shipping container. (See Plonka I, Civ. No. 14-1029 ECF Nos.
15, 36.) After the parties engaged in discovery, 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
Nos. 36, 37.) Having determined that Plaintifrs Complaint alleged state law claims for
·conversion and negligence, the Court granted Defendant's motion for summary judgment on all
claims and entered judgment in favor of Defendant. (Plonka I, Civ. No. 14-1029 ECF No. 36.)
In the instant case, Plaintiff filed his Complaint along with an application to proceed in
forma 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 Plaintifr s Complaint was filed on the
docket. (ECF entries dated 02/15/2017, 03/01/2017.) Defendant moved to dismiss Plaintiff's
Complaint on May 11, 2017. (ECF No. 12.) After considering the parties' submissions, on
August 9, 2017 the Court entered an Opinion and Order granting Defendant's Motion to Dismiss
on resjudicata grounds. (ECF Nos. 15, 16.) The Court also gave Plaintiff leave to amend his
complaint "to attempt to demonstrate that his claims are not barred by res judicata." (Op. at 6,
ECF No. 15.)
Plaintiff filed an Amended Complaint on August 30, 2017. (Am. Compl., ECF No. 17.)
In his Amended Complaint, Plaintiff asserts "[i]n Plonka I there were several things not argued,
which plaiJitiff in Plonka II would like to bring to light." (Id. at 1.) He alleges that Defendants
are withholding video surveillance tape which they denied existed during the Plonka I
proceedings. (Id.) He further alleges that "[a]nother very important piece of evidence not argued
in Plonka I is the name of the Customs agent who was present for the breaking of the seal on the
said container and also all of the agent's documentation ...." (Id.) On September 7, 2017,
Defendant again moved.to dismiss, arguing Plaintiff's Amended Complaint remains precluded
by resjudicata. (ECF No. 18.) This motion is presently before the Court.
A motion under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a
complaint. Kost v. Koza/dewicz, 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 three-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, 556
U.S. 662, 675 (2009)). Second, the court must accept as true all of a plaintifrs well-pleaded
factual allegations and construe the complaint in the light most favorable to the plaintiff. Fowler
v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009); see also Connelly v. Lane Const.
· Corp., 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). As relevant here, the Federal Rules of Civil Procedure demand
a heightened pleading standard for fraudulent concealment. See Byrnes v. DeBolt Transfer, Inc.,
741F.2d620, 626 (3d Cir. 1984) ("[F]raud, and thus fraudulent concealment, must be pleaded
with particularity.''); Fed. R. Civ. P. 9(b). 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 resjudicata 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, includingjudicial 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 pro se complaint may be dismissed for failure to state a
claim if the allegations set forth by the plaintiff c~annot support a claim entitling the plaintiff to
relief. See Milhouse v. Carlson, 652 F .2d 371, 373 (3d Cir. 1981 ).
Defendant renews its argument that resjudicata 1 bars Plaintiff's claims. A judgment's
preclusive effect "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). Under the doctrine of res
judicata, a subsequent suit is 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.
As explained in the August 9th Opinion, the Court uses this term for its narrow meaning of
claim preclusion. See Venuto v. Witco Corp., 117 F.3d 754, 758 n.5 (3d Cir. 1997).
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).
The Court's August 9th Opinion established that "all of the res judicata factors are
present" here. (Op. at 4.) First, the grant of summary judgment in favor of Defendant in Plonka I
was a final judgment on the merits; second, the instant lawsuit is based on the same cause of
action and set of facts as Plonka I; and third, both cases involved the same parties. (Id. at 4-6.)
As the Court acknowledged in its August 9th Opinion, res judicata applies "even where new
claims are based oil newly discovered evidence, unless the evidence was either fraudulently
concealed or it could not have been discovered with due diligence." Haefner v. N. Cornwall
Twp., 40 F. App'x 656, 658 (3d Cir. 2002). The Court allowed Plaintiff to amend his Complaint
to allege specific facts (1) identifying the newly discovered evidence and (2) showing that the
evidence had been fraudulently concealed or could not have been discovered with due diligence.
Curing in part the Court's earlier concerns, Plaintiff's Amended Complaint now
specifically identifies the nature of the purported newly-discovered evidence: (1) video
surveillance tape of the devanning of the container; (2) the name of the Customs agent who was
present when the container's seal was broken; and (3) documentation created by that Customs
agent regarding the devanning he witnessed. (Am. Compl. at 1-2.) However, Plaintiff still does
not assert, much less offer facts to support, that Defendant fraudulently concealed this evidence
or that such evidence could not have been previously discovered with due diligence.
Turning first to fraudulent concealment, Plaintiffs allegations do not meet the heightened
pleading standard for fraud. "To satisfy the particularity requirement with respect to the
'concealment' factor, the plaintiff must 'plead the date, place or time of the fraud,' or use some
other 'alternative means [which] inject[s] precision and some measure of substantiation into their
allegations of fraud."' In re Elec. Carbon Prod. Antitrust Litig., 333 F. Supp. 2d 303, 315 (D.N.J.
2004) (quoting Lum v. Bank ofAm., 361F.3d217, 224 (3d Cir. 2004)). Plaintiff's allegations
that "Judge Lois H. Goodman left this piece of evidence out as the defendant claimed that it did
not exist" (Am. Compl. at 1) and that "the defendant is refusing to hand [the tape] to this court
for viewing for fear of what will be seen" (id.) do not meet this high bar. The Amended
Complaint does not allege with particularity facts concerning Defendant's fraudulent conduct.
Turning next to whether the evidence could be discovered despite due diligence, Plaintiff
has not alleged any facts as to why he could not discover this evidence until now. Plaintifrs own
filings in Plonka I establish that Plaintiff believed this evidence existed in October 2014 and
sought it during discovery. (See Plokna I, Pl.'s Letter Mot. for Disc.~~ 4, 10, Civ. No. 14-1029
ECF No. 19 (requesting the name of the Customs agent who supervised the inspection and video
recording of the incident).) Plaintiff's Amended Complaint likewise suggests that he believed
this evidence existed during the Plonka I proceedings. (Am. Compl. at 1.) The Amended
Complaint makes no mention of due diligence or how this evidence eluded Plaintiff; rather, his
allegations are based on surmise: "The plaintiff is sure that in today's world ofhomeland
security every devaning [sic] is carefully recorded for security purposes." (Am. Compl. at 1.)
Accepting as true Plaintiff's factual allegations and construing them in the light most favorable
to Plaintiff, Plaintiff's Amended Complaint does not overcome res judicata.
For the foregoing reasons, Defendant's motion to dismiss will be granted. An appropriate
order will follow.
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