Townsend v. Public Storage, Inc.

Filing 4

ORDER & REPORT-RECOMMENDATION: It is ordered that plaintiff's # 2 MOTION for Leave to Proceed in forma pauperis filed by Nadine Townsend is GRANTED FOR PURPOSES OF FILING ONLY, the # 3 MOTION to Appoint Counsel is DENIED. It is Recommended that the # 1 Complaint filed by Nadine Townsend be DISMISSED WITH PREJUDICE pursuant to 28 USC section 1915(e)(2)(B)(i-ii). (Objections to R&R due by 5/19/2014, Case Review Deadline 5/21/2014), Motion # 2 and # 3 are terminated. Signed by Magis trate Judge Therese Wiley Dancks on 4/30/2014. Signed by Magistrate Judge Therese Wiley Dancks on 4/30/2014. (Attachments: # 1 Unpublished Decision - Brown vs. State Farm, # 2 Unpublished Decision - Johnson vs. DHS-ICE, # 3 Unpublished Decision - Rose vs. Myers, # 4 Unpublished Decision - Townsend vs. L.P. Auto Transport) {Copy of the Order and Report-Recommendation sent to the pro se plaintiff along with copies of the four unreported cases cited therein, by regular mail} (jmb)

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Not Reported in F.Supp.2d, 2013 WL 951726 (D.Conn.)
(Cite as: 2013 WL 951726 (D.Conn.))

Only the Westlaw citation is currently available.
United States District Court,
D. Connecticut.
Ralston BROWN, Plaintiff,
v.
STATE FARM FIRE AND CASUALTY COMPANY, Defendant.
Civil No. 3:11cv1435 (JBA).
March 12, 2013.
Ralston Brown, Bridgeport, CT, pro se.
Daniel P. Scapellati, Halloran & Sage, Hartford, CT,
for Defendant.
RULING ON DEFENDANT'S MOTION TO
DISMISS
JANET BOND ARTERTON, District Judge.
*1 Plaintiff Ralston Brown, proceeding pro se,
brought this action against Defendant State Farm Fire
and Casualty Company alleging negligent misrepresentation, gross negligence, negligence, obstruction of
justice, violation of the Connecticut Unfair Trade
Practices Act (“CUTPA”), and three counts of fraud
arising from Defendant's denial of Plaintiff's claim for
insurance proceeds and the subsequent litigation regarding that denial. (See Amend. Compl. [Doc. # 40].)
Pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6), Defendant now moves [Doc. # 41] to
dismiss the Amended Complaint in its entirety arguing
that (1) Plaintiff's claims are barred by the doctrine of
res judicata, (2) the Court lacks subject matter jurisdiction in that Plaintiff cannot establish that the
amount in controversy exceeds $75,000, (3) the action
should be dismissed under the Colorado River ab-

stention doctrine, and (4) Plaintiff has failed to state a
claim for which relief can be granted. For the following reasons, Defendant's motion to dismiss is
granted.
I. Background
A. Factual Background
This case arises out of an insurance coverage
dispute between the parties. Defendant issued Plaintiff
a homeowner's policy covering a house located at
100–102 Harral Avenue, Bridgeport, Connecticut for
damage from fire. (See Ex. B to Def.'s Mot. to Dismiss.) Defendant also issued a business policy for the
same address. (See Myers Aff., Ex. to Amend.
Compl.) However, the policy listed the incorrect address for the insured location, as Plaintiff did not own
a business at 100–102 Harral Avenue. (See Amend.
Compl.) On March 22, 2006, Defendant sent Plaintiff
a cancellation notice, informing Plaintiff that both
policies would be cancelled effective April 6, 2006 if
the premium payment of $729.85 was not received by
that date. (See Myers Aff., Ex. to Amend. Compl. ¶
16.) Plaintiff failed to pay the outstanding balance and
the policies were cancelled as of April 6, 2006. (See id.
¶ 17.) On April 21, 2006, the dwelling at 100–102
Harral Avenue was destroyed by fire. (See Ex. B to
Def.'s Mot. to Dismiss, ¶ 4.) Plaintiff suffered property
damage and lost rental income as a result of the fire.
Defendant refused coverage for these losses under the
homeowners and business policies, citing the prior
cancellation of those policies. (See id. ¶¶ 7–8.)
B. Procedural Background
On April 19, 2007, Plaintiff filed suit against
Defendant in the Connecticut Superior Court for the
Judicial District of Fairfield at Bridgeport, see Brown
v. State Farm Fire and Casualty Company, FBT–CV–
075008258–S (hereinafter “Brown I ”), alleging

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Not Reported in F.Supp.2d, 2013 WL 951726 (D.Conn.)
(Cite as: 2013 WL 951726 (D.Conn.))
wrongful denial of coverage under the homeowners
and business policies. (See Ex. B to Def.'s Mot. to
Dismiss.) At the time this suit was filed, the parties
had conducted discovery and Defendant had filed and
fully briefed a motion for summary judgment that had
been pending for several months. (See id.) Plaintiff's
allegations in this action arise in part from the discovery conducted in Brown I. Plaintiff alleges that
Defendant falsified Plaintiff's insurance applications
and policies and that Defendant made false statements
regarding these applications and policies in affidavits
submitted to the Connecticut Superior Court. (See
Amend. Compl.) Although the parties have failed to
keep the Court apprised of the status of Brown I since
the pending motion was filed, based on a review of
Connecticut's electronic court filing system, the Court
takes judicial notice of the fact that judgment entered
in Defendant's favor after trial on December 24, 2012,
and that on January 25, 2013, Plaintiff filed an appeal,
which is currently pending.
*2 On May 27, 2011, Plaintiff filed a second suit
against Defendant in this District, see Brown v. State
Farm Fire and Casualty Company, No. 10cv833
(CFD) (hereinafter “Brown II ”), alleging that Defendant had breached the business policy by denying
coverage for the losses resulting from the April 21,
2006 fire. On September 12, 2011 Judge Droney denied Plaintiff's motion to amend his complaint to add a
CUTPA claim, holding that the proposed amendment
was futile because Plaintiff had not alleged that Defendant committed unfair claim settlement practices
with such frequency as to indicate a general business
practice. (See Brown II, Sept. 12, 2011 Ruling [Doc. #
58].) On September 20, 2011, Judge Droney granted
Defendant's motion for summary judgment, holding
that Plaintiff's suit was barred by the suit-limitation
clause in the business policy, and denied as futile
Plaintiff's second motion to amend his complaint, in
which Plaintiff attempted to add many of the claims he
asserts in this action. (See Brown II, Sept. 20, 2011
Ruling [Doc. # 59].) On September 16, 2011, several
days before judgment entered in favor of Defendant in

Brown II, Plaintiff filed the present action, in which he
attempts for a third time to raise claims against Defendant arising from Defendant's denial of coverage
for the April 21, 2006 loss and from the subsequent
litigation surrounding that denial.
II. DiscussionFN1
FN1. “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, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although detailed allegations are not required, a
claim will be found facially plausible only if
“the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Conclusory allegations are not sufficient. Id.
at 678–79; see also Fed.R.Civ.P. 12(b)(6).
“A document filed pro se is to be liberally
construed and a pro se complaint, however
inartfully pleaded, must be held to less
stringent standards than formal pleadings
drafted by lawyers.” Boykin v. KeyCorp, 521
F.3d 202, 214 (2d Cir.2008) (internal citations and quotation marks omitted).
Defendant argues that the Amended Complaint
should be dismissed in its entirety because (1) Plaintiff's claims are barred by the doctrine of res judicata,
(2) the Court lacks subject matter jurisdiction in that
Plaintiff cannot establish that the amount in controversy exceeds $75,000, (3) the action should be dismissed under the Colorado River abstention doctrine,
and (4) Plaintiff has failed to state a claim for which
relief can be granted. Because the Court concludes
that this action is barred by the doctrine of res judicata,
it will not address Defendant's additional arguments.

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

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Not Reported in F.Supp.2d, 2013 WL 951726 (D.Conn.)
(Cite as: 2013 WL 951726 (D.Conn.))
dicata.
Defendant argues that Judge Droney's summary
judgment ruling in Brown II has preclusive effect on
all of Plaintiff's claims. “The doctrine of res judicata,
or claim preclusion, applies in later litigation if an
earlier decision was (1) a final judgment on the merits,
(2) by a court of competent jurisdiction, (3) in a case
involving the same parties or their privies, and (4)
involving the same cause of action.” Hecht v. United
Collection Bureau, Inc., 691 F.3d 218, 221–22 (2d
Cir.2012). The parties do not dispute that the summary
judgment opinion in Brown II was a final judgment by
a court of competent jurisdiction involving the same
parties. However, Plaintiff does argue that Judge
Droney's opinion was not “on the merits,” and that he
did not have a full and fair opportunity to litigate his
claims in Brown II.
Plaintiff argues that because Judge Droney
granted judgment in favor of Defendant on Plaintiff's
breach of contract claim on the basis that it was untimely under the suit limitation clause in the business
policy, the judgment in Brown II was not “on the
merits” for purposes of res judicata. A decision is “on
the merits” for res judicata purposes if it “reaches and
determines the real or substantial grounds of action or
defense as distinguished from matters of practice,
procedure, jurisdiction, or form,” Saylor v. Lindsley,
391 F.2d 965, 968 (2d Cir.1968), and “[b]oth claim
preclusion and issue preclusion result from summary
judgments that rest on the lack of any genuine issue of
material fact going to the merits of a claim or defense.” Charles A. Wright & Arthur R. Miller, et al.,
18A Federal Practice and Procedure § 4444. In
Brown II, Judge Droney addressed the substance of
Defendant's defense that Plaintiff's suit was barred by
the suit limitation clause in the business policy claim
and found that Plaintiff had failed to present a genuine
issue of material fact as to whether his failure to bring
suit within the contractual limitation period was justified. (See Brown II, Sept. 20, 2011 Ruling at 4–7 & n.
7.) Therefore, the summary judgment opinion in
Brown II was “on the merits” for purposes of res ju-

*3 Plaintiff also appears to argue that res judicata
should not apply to bar this suit because he did not
have a full and fair opportunity to raise his present
claims in Brown II. “[R]es judicata, or claim preclusion prevents a party from litigating any issue or defense that could have been raised or decided in a previous suit, even if the issue or defense was not actually
raised or decided.” Woods v. Dunlop Tire Corp., 972
F.2d 36, 38 (2d Cir.1992) (internal quotation marks
and citations omitted). “Whether or not the first
judgment will have preclusive effect depends in part
on whether the same transaction or connected series of
transactions is at issue, whether the same evidence is
needed to support both claims, and whether the facts
essential to the second were present in the first.” Id.
(internal quotation marks and citations omitted). Thus,
if Plaintiff could have raised his present claims in
Brown II, they will be barred by the application of res
judicata. Plaintiff admits that he in fact attempted to
bring many of the claims at issue in this suit in Brown
II. (See Pl.'s Opp'n [Doc. # 44] at 5 (“The plaintiff
made several attempts to amend the complaint, however upon a lengthy analyst [sic] of the complaint the
court (Judge Droney) concluded that it would be futile
to amend the complaint.”).) FN2 Plaintiff also raised the
issue of the alleged false statements made by Defendant when rejecting Plaintiff's insurance claim and
during the Brown I litigation at several points during
the course of Brown II. (See, e.g., Brown II, Pl.'s Mem.
Supp. of Mot. Summ. J. [Doc. # 8].) Thus, the evidence in support of and the facts essential to Plaintiff's
present claim were before the court in Brown II, and
all of the alleged misstatements had occurred prior to
the entry of judgment in that action. Furthermore, each
of Plaintiff's claims arises from the same transaction
or series of transactions in that Plaintiff's claims all
relate to Defendant's actions in denying his insurance
claim and its continued denial of that claim during the
litigation of the original coverage dispute in Brown I.
For these reasons, the claims at issue in this action
could have been brought in Brown II, and thus con-

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Not Reported in F.Supp.2d, 2013 WL 951726 (D.Conn.)
(Cite as: 2013 WL 951726 (D.Conn.))
stitute the same “cause of action” for res judicata
purposes. Therefore, all of Plaintiff's claims are barred
by the doctrine of res judicata.
FN2. To the extent that the Brown II court
denied as futile Plaintiff's motion to amend
his complaint to bring some of the claims
alleged in the present suit (see Brown II,
Sept. 20, 2011 Ruling), that decision would
also have preclusive effect on those claims.
See Casciani v. Town of Webster, No. 11–
4372–cv, 2012 WL 5416618, at *1 (2d Cir.
Nov.7, 2012) (holding that where the district
court considered each claim in the proposed
amended complaint and denied leave to
amend as futile the decision “constitute[d] a
final judgment sufficient to preclude any
claims contained in the proposed amended
complaint” (citing Flaherty v. Lang, 199
F.3d 607, 615 (2d Cir.1999))). Plaintiff's
proposed amended complaint in Brown II
included claims for CUTPA violation, negligence, and fraud. (See Brown II, Mot. to
Amend Compl. [Doc. # 23].) Thus, Plaintiff's
CUTPA, fraud, and negligence claims in the
present action are also precluded by Judge
Droney's denial of the motion to amend in
Brown II. Furthermore, to the extent that
Plaintiff alleges the new claims of gross
negligence and obstruction of justice in violation of 18 U.S.C. §§ 1501–07 for the first
time in this action, these claims fail as a
matter of law because Connecticut does not
recognize a private cause of action for gross
negligence as distinct from negligence, see
Gersich v. Enterprise Rent A Car, No.
3:95CV01053(AHN), 1995 WL 904917, at
*2 (D.Conn. Nov.20, 1995), and 18 U.S.C.
§§ 1501–07 is a federal criminal statute that
does not give rise to a private cause of action.
See De Haven v. Schwarzenegger, 123 F.
App'x
287,
289
(9th
Cir.2005)
(“[O]bstruction of justice is a criminal charge

that does not provide a private cause of action.”). Cf. Clissuras v. City Univ. of New
York, 90 F. App'x 566, 567 n. 1 (2d Cir.2004)
(“In their cavalcade of claims, plaintiffs
make creative arguments regarding obstruction of justice and theft of identity. These
claims are either time-barred or do not constitute private federal causes of action, or
both.”)
III. Conclusion
For the foregoing reasons, Defendant's Motion
[Doc. # 41] to Dismiss is granted. The Clerk is directed to enter judgment in favor of Defendant and to
close the case.
IT IS SO ORDERED.
D.Conn.,2013.
Brown v. State Farm Fire and Cas. Co.
Not Reported in F.Supp.2d, 2013 WL 951726
(D.Conn.)
END OF DOCUMENT

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