FONNER v. TRAVELERS HOME & MARINE INSURANCE CO. et al
MEMORANDUM OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 10/14/2014. 10/15/2014 ENTERED AND COPIES MAILED TO PRO SE AND UNREP AND E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MILA LAWSIN FONNER
: CIVIL ACTION
: NO. 14-CV-3738
TRAVELERS HOME & MARINE
INSURANCE COMPANY, ET. AL.
MEMORANDUM AND ORDER
October 14, 2014
This civil matter is presently before the Court on Motions
of Defendants Travelers Home & Marine Insurance Company
(“Travelers”), Christopher Ryan and ICS Merrill to Dismiss
For the reasons which follow, the
Motions shall be granted and the complaint dismissed.
The present action is the latest reincarnation of a claim
first filed by Plaintiff, Mila Lawsin Fonner in the summer of
2011 as the result of a rear-end motor vehicle collision that
occurred on February 5, 2011.
As a result of that accident, Ms.
Fonner sustained injuries to her back and neck which prevented
her from working and which caused her to file a claim for wage
In so far as this action was removed to this Court from the Court of
Common Pleas of Philadelphia County before Moving Defendants’ preliminary
objections were adjudicated, we do so now, albeit utilizing the principles
applicable to motions seeking dismissal under Fed. R. Civ. P. 12(b).
loss benefits with her automobile insurance carrier, Defendant
(Pl’s Compl., pp. 1-2).
Although Travelers paid
Plaintiff’s wage loss benefits for several months, in June, 2011,
it subjected her to an independent medical examination with a
doctor of its choosing.
Plaintiff was examined by this
physician, Dr. Amy Fitzsimmons, on June 10, 2011, who indicated
that Plaintiff had
“a chronic condition of the cervical and lumbar spine with a
myofasciitis that is long-standing. ... With regard to her
work condition, I think it has been demonstrated that she
has been out of work from injury more than she has worked
over the last three years. Because of that, I think her
prognosis to be successful in returning to work is extremely
guarded. I do not think she should be doing a job with any
kind of lifting, but I do not believe that is related to the
motor vehicle accident which occurred on 02/05/11.
Therefore, I do not believe any treatment is needed for any
injuries incurred from the motor vehicle accident that
occurred on 02/05/11. I do believe she is at the same work
capacity level that she was just prior to this accident.”
(Pl’s Compl., Exhibit “B,” Report of Amy Fitzsimmons, M.D., dated
June 10, 2011).
Plaintiff alleges that immediately after
Travelers received this report, it called her to go for a second
IME, which Plaintiff refused.
(Pl’s Compl., p.3).
stopped paying her wage loss benefits at that point and Plaintiff
commenced an action to recover those benefits before the local
District Justice Court in Richboro, Bucks County, Pennsylvania.
Apparently, Plaintiff prevailed before the District Justice
and was awarded a judgment in the amount of $7,641, from which
Travelers took an appeal to the Bucks County Court of Common
Pleas on January 9, 2012.
(Pl’s Compl., p. 3).
In response to a
Rule having been issued to her directing her to file a complaint,
Plaintiff filed a Complaint in the Bucks County Common Pleas
However, in June of 2012, Plaintiff filed an Amended
Complaint in that Court demanding judgment in the amount of $10
million against Travelers.
Given that the amount in controversy
then satisfied the amount required to invoke federal
jurisdiction, Travelers removed the action to this Court, where
it was assigned to the undersigned at Civil Action No. 12-CV3839.
Plaintiff then filed several motions seeking remand and/or
reconsideration of the propriety of the removal of her case on
the grounds that there was no diversity jurisdiction.
the parties to be of appropriately diverse citizenship, we denied
Plaintiff’s numerous requests to remand the matter.
following Plaintiff’s refusal to accept an offer by Travelers to
pay her the full wage loss policy limits available under the
policy, we granted Travelers’ motion for summary judgment and the
matter was closed on August 22, 2013.
Plaintiff did not appeal
from that decision.
Regrettably however, this did not end the matter.
Apparently undeterred, one day later on August 23, 2013,
Plaintiff merely filed a “Third Amended Complaint” in state court
in Bucks County,2 this time against Travelers and her insurance
agency, the Hinkle Agency.
In this pleading, Plaintiff recited
at length the history of the proceedings in federal court as well
as various allegations against Kami Hause, the insurance adjuster
assigned to her claim, and Christopher Ryan and ICS Merrill, the
private investigator and the agency for whom he is employed, both
of whom were hired by Travelers to conduct surveillance of
Defendants sought dismissal of the Third Amended
Complaint pursuant to Pa. R. C. P. 233.1.
This motion was
granted by Judge Waite of the Bucks County Court of Common Pleas
on December 18, 2013, who simultaneously directed that Plaintiff
was “barred from pursuing any further litigation against
Travelers Home & Marine Insurance Company, the Hinkle Agency,
employees of Travelers or related defendants raising the same or
related claims as those raised in her Third Amended Complaint and
other pleadings filed thereto, all of which stem from a motor
vehicle accident that occurred on February 5, 2011, and alleged
injuries and damages therefore.”
Judge Waite also ordered
Plaintiff to pay a monetary sanction in the amount of $1.00 for
failing to comply with the Pennsylvania Rules of Civil Procedure
Plaintiff evidently filed this “Third Amended Complaint” under the
same docket number as the earlier Bucks County action which had been removed.
It should be noted that Plaintiff likewise made these allegations in
the proceedings before the undersigned, although in the context of discovery
motions and subpoenas. Neither Hause, Ryan nor Merrill were ever parties to
and advised Plaintiff that “monetary sanctions will be imposed,
upon application to this Court, on any future filing that fails
to comply with the Pennsylvania Rules of Civil Procedure.”
(Exhibits 2, 13, 14 to Defendant Travelers’ Preliminary
Yet again, however, Plaintiff’s claims rose like a Phoenix
from the ashes of the Bucks County action.
On May 12, 2014, Ms.
Lawsin-Fonner filed a Complaint in the Philadelphia County Court
of Common Pleas against Travelers Home & Marine Insurance Company
at both its principal place of business in Hartford, CT and at
its local corporate address in Wyomissing, PA, the Hinkle
Insurance Agency in Richboro, PA, Christopher Ryan, in Ridley
Park, PA and ICS Merrill in Jacksonville, FL.
County Complaint states, like its predecessors, that this action
is to recover “equitable, monetary and other relief” under her
Wage Loss Policy with Travelers for benefits due her as a result
of the rear-end accident of February 5, 2011.
Complaint, No. 974 May Term 2014, p.2).
Complaint then goes on to describe, in exacting detail, the
history of Plaintiff’s medical treatment and all of the prior
proceedings before the Richboro District Justice, the Court of
Common Pleas of Bucks County and the U.S. District Court for the
Apparently still unwilling to accept defeat, Plaintiff next filed,
in Bucks County a “Motion to a Stay for five days from March 13, 2014 to March
18, 2014 while she prepares her Fourth Amended Complaint.” Needless to say,
this motion was summarily denied by Judge Waite on March 14, 2014.
Eastern District of Pennsylvania.
(Complaint, pp. 3-5).
Plaintiff then goes on to explain how and why she “disagrees”
with the decisions of both the undersigned and Judge Waite, avers
that she has been unjustly discriminated against and recites the
“REASON[S] FOR THE TRANSFER OF CASE.”
(Complaint, pp. 5-
7)(emphasis in original).
On June 13, 2014, the Philadelphia County action was again
removed to this Court by Travelers, which stated in its Notice of
Removal that this is the exact, same action which had been
previously litigated to conclusion at Case No. 12-3839, that it
is a Connecticut corporation with its principal place of business
in, and only in, Connecticut, that the Hinkle Agency was never
served and thus was not a party to the action, and that even
though Plaintiff included Christopher Ryan and ICS Merrill in the
caption of the case, the Complaint only purported to state one
cause of action against Travelers.
Plaintiff once again filed a
motion to remand which we denied in an Order dated July 29, 2014
on the grounds that diversity jurisdiction properly existed and
that it appeared that this matter was identical to Civil Action
Because the identities between this action and the
preceding one is so clear, we saw no need to require the parties
to re-file their preliminary objections as Rule 12(b)(6) motions
- we now construe the objections filed in the state court as
motions to dismiss under the federal rules.
Standards Applicable to Motions to Dismiss
It is well established that in considering motions to
dismiss under Fed. R. Civ. P. 12(b)(6), the district courts must
accept as true the factual allegations in the complaint and all
reasonable inferences that can be drawn therefrom, viewing them
in the light most favorable to the plaintiff.
Mining & Mineral Co. v. Fox, Rothschild, LLP, 615 F.3d 159, 161
n.1 (3d Cir. 2010); Krantz v. Prudential Investments Fund
Management, 305 F.3d 140, 142 (3d Cir. 2002); Hamilton v. Allen,
396 F. Supp.2d 545, 548-549 (E.D. Pa. 2005) .
In so doing, the
courts must consider whether the complaint has alleged enough
facts to state a claim to relief that is plausible on its face.
Bell Atlantic v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974,
167 L. Ed. 2d 929, 949 (2007).
“It is therefore no longer
sufficient to allege mere elements of a cause of action; instead
a complaint must allege facts suggestive of the proscribed
Umland v. Planco Financial Services, Inc., 542 F.3d
59, 64 (3d Cir. 2008)(quoting Philips v. County of Allegheny, 515
F.3d 224, 233 (3d Cir. 2008)).
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.
Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949, 173 L. Ed. 2d 868 (2009).
Generally speaking, in accordance with Fed. R. Civ. P.
8(c)(1), “[in responding to a pleading, a party must
affirmatively state any avoidance or affirmative defense,
including: ... res judicata...[and] statute of limitations.”
district court may, however, grant a Rule 12(b)(6) motion on the
basis of an affirmative defense if the predicate establishing the
defense is apparent from the face of the complaint.
Hankin, 145 Fed. Appx. 768, 771, 2005 U.S. App. 18778 (3d Cir.
Aug. 29, 2005)(citing Bethel v. Jendoco Const. Corp., 570 F.2d
1168, 1174 n. 10 (3d Cir. 1978)); Irish v. Ferguson, 970 F. Supp.
2d 317, 353-354 (M.D. Pa. 2013)
Objections of Defendants Ryan and ICS Merrill
At the outset we observe that although she has named
Christopher Ryan and ICS Merrill as defendants in the caption of
the complaint and alleges that Ryan and ICS, his employer, were
hired by Travelers to conduct “illegal surveillance and stalkings
of Plaintiff,” Plaintiff demands damages only from Travelers.
Additionally, while the complaint contains a myriad of rambling
assertions against these defendants, as well as against other
individuals not joined to the action, these averments are not
organized in any coherent fashion or in paragraph form.
The pleading requirements of the Federal Rules of Civil
Procedure are plain and clear and are substantively the same as
those of the Pennsylvania Rules.
To be sure, under Fed. R. Civ.
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the
court’s jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief
in the alternative or different types of relief.
Rule 8(d) requires, inter alia that a pleading be concise and
direct and under Fed. R. Civ. P. 10(b), “[a] party must state its
claims or defenses in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.”
principles are essentially the same as those delineated in Pa. R.
C. P. Nos. 1019 (governing contents of pleadings and general and
specific averments), 1020 (addressing pleading more than one
cause of action, alternative pleading and failure to join), 1021
(governing claims for relief and determination of amount in
controversy), and 1022 (requiring every pleading to be divided
into consecutively-numbered paragraphs).
Given that Plaintiff’s
complaint fails to satisfy these minimal pleading requirements
and does not appear to be seeking any relief from Defendants Ryan
and/or ICS Merrill, we find that it is properly stricken and
dismissed for failure to state a cause of action as against those
defendants and to conform with the Rules of Civil Procedure.
generally, Fed. R. Civ. P. 12(f); Pa. R. C. P. 1028(a)(2).
B. Res Judicata
By its motion, Defendant Travelers likewise asserts that
Plaintiff’s complaint is properly stricken for failure to conform
to the pleading requirements and contends that Plaintiff’s claims
are barred under the principles of res judicata.
We agree and
shall strike the complaint as to Travelers for the same reasons
and for the same deficiencies as noted above as to Ryan and ICS.
Further, because we also conclude that this matter is indeed
barred by res judicata, we shall grant the motions to dismiss on
this basis as well.
Application of the doctrine of res judicata5 is central to
Again, inasmuch as Defendants filed preliminary objections in the
Philadelphia County Court of Common Pleas, we first need to consider the
matter of whether to apply Pennsylvania state or federal law in assessing the
applicability of res judicata. According to the Third Circuit, “the
preclusive effect of a judgment is determined by the preclusion law of the
issuing court” and “as a general rule, state law governs the preclusive
effects of a prior state court judgment on a subsequent diversity case.”
Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 135 (3d Cir. 1999); Gregory
v. Chehi, 843 F.2d 111, 116 (3d Cir. 1988); Charbonneau v. Chartis Property
Casualty Co., Civ. A. No. 13-4323, 2014 U.S. Dist. LEXIS 40763 at *13-*14
(E.D. Pa. March 26, 2014). Because we issued the prior judgment under
consideration, we apply federal res judicata principles. To the extent that
Judge Waite’s rulings are also under consideration, we note that Plaintiff
clearly acted in contravention of both state and federal court procedures when
she merely re-filed a “Third Amended Complaint” in the Bucks County Court in
lieu of taking an appeal to the Third Circuit from our Order entering summary
judgment in defendant’s favor on August 22, 2013. In any event, Pennsylvania
law in this area is similar. Res judicata under Pennsylvania law “holds that
a final judgment on the merits by a court of competent jurisdiction will bar
any future action on the same cause of action between the parties and their
privies.” Rearick v. Elderton State Bank, 2014 PA Super. 157, 97 A.3d 374,
(2014)(citing McArdle v. Tronetti, 426 Pa. Super. 607, 627 A.2d 1219, 1222
(1993)). It is properly applied “where the following are present: (1)
identity of the thing sued upon or for; (2) identity of the cause of action;
(3) identity of persons or parties to the actions and (4) identity of the
quality or capacity of the parties suing or sued.” Id. “All matters which
might have been raised and decided in the former suit, as well as those which
were actually raised therein, are res judicata in a subsequent proceeding
between the same parties and their privies.” Id.(quoting McArdle, supra, and
Nevling v. Commercial Credit Co., 156 Pa. Super. 31, 39 A.2d 266, 267 (1944)).
the purpose for which civil courts have been established - the
conclusive resolution of disputes within their jurisdiction.
Montana v. U.S., 440 U.S. 147, 153, 99 S. Ct. 970, 973, 59 L.
Ed.2d 210 (1979).
The term “res judicata” has been said to have
both a broad and a narrow meaning.
Venuto v. Witco Corp., 117
F.3d 754, 758, n.5 (3d Cir. 1997).
In its narrow sense, it
refers only to claim preclusion, but the preferred usage of the
term is in the broader sense so as to encompass both claim and
issue preclusion, which is otherwise known as collateral
U.S. v. 5 Unlabeled Boxes, 572 F.3d 169, 173-174 (3d
Cir. 2009); Venuto, supra.; E.E.O.C. v. U.S. Steel Corp., 921
F.2d 489, 493 (3d Cir. 1990)(quoting Migra v. Warren City School
District Board of Education, 465 U.S. 75, n.1, 104 S. Ct. 892,
n.1, 79 L. Ed.2d 56 (1984)).
Claim preclusion generally refers to the effect of a prior
judgment in foreclosing successive litigation of the very same
claim, whether or not re-litigation of the claim raises the same
issue as the earlier suit.
New Hampshire v. Maine, 532 U.S. 742,
748, 121 S. Ct. 1808, 1814, 149 L. Ed. 2d 968 (2001).
to all claims actually brought or which could have been brought
in a prior action regardless of whether they were asserted or
determined in the prior proceeding.
Brown v. Felsen, 442 U.S.
127, 131, 99 S. Ct. 2205, 2209, 60 L. Ed.2d 767 (1979); Small v.
Potter, Civ. A. No. 01-3108, 2002 U.S. Dist. LEXIS 241 at *5
(E.D. Pa. Jan. 10, 2002).
Issue preclusion generally refers to
the effect of a prior judgment in foreclosing successive
litigation of an issue of fact or law actually litigated and
resolved in a valid court determination essential to the prior
judgment, whether or not the issue arises on the same or a
New Hampshire, supra.
“By precluding parties from contesting matters that they
have had a full and fair opportunity to litigate, these two
doctrines protect against the expense and vexation attending
multiple lawsuits, conserve judicial resources, and foster
reliance on judicial action by minimizing the possibility of
Taylor v. Sturgell, 553 U.S. 880, 892,
128 S. Ct. 2161, 2171, 171 L. Ed.2d 155 (2008)(quoting Montana v.
U.S., 440 U.S. at 153-154, 99 S. Ct. 970); Jasin v. Michael, Best
& Friedrich, LLP, Civ. A. No. 09-748, 2009 U. S. Dist. LEXIS
102553 at * 14 (E.D. Pa. Nov. 2, 2009); Mohammed v. May
Department Stores, Co., 273 F. Supp. 2d 531, 534 (D.Del. 2003).
Moreover, a party may not split a cause of action into separate
grounds of recovery and raise the separate grounds in successive
lawsuits - a party must raise in a single suit all the grounds of
recovery arising from a single transaction or series of
transactions that can be brought together.
Manufacturing, Inc. v. Bardsley, 103 F. Supp. 2d 847, 849 (E. D.
Pa. 2000), aff’d, 265 F.3d 1055 (3d Cir. 2001)(citing Mars, Inc.
v. Nippon Conlux Kabushiki-Kaisha, 58 F.3d 616, 619-620 (Fed.
Cir. 1995) and Gregory v. Chehi, 843 F.2d 111, 117 (3d Cir.
Res judicata bars re-litigation of a claim if: (1) there has
been a final judgment on the merits in the prior suit; (2) the
claims involve the same parties or their privies; and (3) the
subsequent suit is based on the same cause of action as the prior
In re Montgomery Ward, LLC, 634 F.3d 732, 736-737 (3d Cir.
2011); African International Bank v. Epstein, 10 F.3d 168, 171
(3d Cir. 1993).
In ascertaining whether the causes of action are
the same, the following factors are appropriately considered: (1)
whether the acts complained of and the demand for relief are the
same, i.e., whether the wrong for which redress is sought is the
same in both actions; (2) whether the theory of recovery is the
same; (3) whether the witnesses and documents at trial are the
same (that is, whether the same evidence necessary to maintain
the second action would have been sufficient to support the
first); and (4) whether the material facts alleged are the same.
Blunt v. Lower Merion School District, Nos. 11-4200, 11-4201, 114315, 2014 U.S. App. LEXIS 17629 at *64 (3d Cir. Sept. 14, 2014),
M.R. v. Ridley School District, 744 F.3d 112, 120 (3d Cir. 2014),
and Charbonneau, 2014 U.S. Dist. LEXIS at *14- *15 (all citing
United States v. Athlone Industries, Inc., 746 F.2d 977, 984 (3d
In application of the foregoing, we find that the principles
of res judicata are properly applied to bar the matter now before
As noted above, the thirteen-page complaint recites the
entire history of the preceding action before this Court and
attaches copies of the pleadings and court orders issued in that
action in both the Eastern District and the Bucks County Common
Pleas Court, thereby incorporating them into the instant action.
As is clear from the face of these pleadings, this matter is
identical in all respects to the preceding case docketed as Civil
Action No. 12-CV-3839: Plaintiff has sued the same party
(Travelers), based upon the same set of facts (initial denial of
wage loss benefits the need for which resulted from rear-end auto
accident on February 5, 2011) for the same wrongs (denial of wage
loss benefits followed by alleged damages caused by having been
subject to surveillance) and seeks the same remedy, (money
damages, albeit the demand for which has increased from $10
million to $20 million).
A final judgment on the merits was
issued on August 22, 2013 when we entered summary judgment in
favor of the defendant and that Order was never appealed.
Although Plaintiff could have requested leave to amend her
pleadings in that action to assert her alleged claims against
Defendants Ryan and ICS Merrill, she never did so and thus they
were never made parties to the preceding action.
theories of recovery, although not entirely clear in either case,
likewise appear to be identical in that she seems to be trying to
again plead causes of action for breach of contract and bad
Accordingly, and in view of the alignment between the
cases, we find that dismissal of this action is appropriate under
the doctrine of res judicata.
Defendant’s preliminary objections
in the nature of a motion to dismiss and to strike are therefore
granted in accordance with the attached order.
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