United States District Court, D. Maine
ROY A. DAY, Plaintiff,
LORNA R. GREY, et al., Defendants.
ORDER ON MOTION TO STAY AND AFFIRMING DISMISSAL OF
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
the Plaintiff failed to comply with the Court's orders
requiring him to supply the Clerk's Office with the names
and addresses of the Defendants for service of the summons
and complaint, because the Plaintiff chose a state forum as a
“more compatible court” to proceed with this same
lawsuit, and because the Plaintiff elected to cast aspersions
against the judges of this Court rather than comply with
their orders, the Court affirms the Magistrate Judge's
recommendation to dismiss his complaint without prejudice and
the Court resolves the remaining pending motions against the
3, 2016, Roy Day, acting pro se, filed a complaint in this
Court against Lorna Grey, Kenneth Grey, and two insurance
companies arising out of an automobile accident that
allegedly took place on April 29, 2016 in Pasco County,
Florida. Compl. (ECF No. 1). Mr. Day alleges that he
is a resident of the state of Florida, that Lorna and Kenneth
Grey are residents of the state of Maine, that GEICO General
Insurance Company is a Washington, D.C. company with a
principal place of business in Washington, D.C., and that
21st Century Centennial Insurance Company is a Delaware
corporation with a principal place of business in Delaware.
Id. ¶¶ 1-5. Mr. Day claims compensatory
damages of $500, 000, emotional distress damages of $500,
000, and exemplary damages of $5, 000, 000. Id.
¶¶ 14-16. He claims that this Court has diversity
jurisdiction under 28 U.S.C. § 1332. Id. ¶
25, 2016, Mr. Day filed a second motion to proceed in forma
pauperis, Appl. to Proceed in District Ct.
Without Prepaying Fees or Costs (ECF No. 8), and on
November 21, 2016, the Magistrate Judge issued an order in
which he granted the motion and recommended that the Court
allow the case to proceed. Order Granting Leave to
Proceed In Forma Pauperis and Review under 28 U.S.C.
§ 1915(e)(2)(B) (ECF No. 10). On December 9, 2016, this
Court affirmed the recommended decision. Order Affirming
the Recommended Decision of the Magistrate Judge (ECF
on December 3, 2016, Mr. Day filed a motion to stay.
Pl.'s Mot. to Hold Action in Abeyance (ECF No.
12). In the motion, Mr. Day explained that he had approached
the Defendants to see if they would be amenable to settlement
before he served them with the Complaint and he asked that
the matter be held in abeyance while he determined whether
settlement could be achieved without service of the
Complaint. Id. at 1. Further, Mr. Day asked that the
period within which service must be made be extended so that
he could first determine whether settlement was going to be
forthcoming. Id. at 1-2.
December 5, 2016, the Magistrate Judge denied the motion to
stay. Order Denying Mot. to Stay (ECF No. 14). The
Magistrate Judge explained that the motion was premature
because the Defendants had not yet been served and could not
respond. Id. The Magistrate Judge further observed
that Mr. Day could refile the motion to stay once the parties
had been served, if he thought it was appropriate to do so.
December 9, 2016, the Court issued an order for service,
directing Mr. Day to provide the names and addresses of the
Defendants and, upon receiving that information, the Court
ordered the Clerk's Office to prepare the necessary
summonses, and the Marshal Service to make service. Order
for Service (ECF No. 17). On December 23, 2016, the
Clerk's Office noted that the deadline for providing this
information was January 6, 2017.
January 4, 2017, Mr. Day moved for an extension of time to
provide the Court with the names and addresses of the
Defendants because Mr. Day had experienced a relapse of his
medical problems. Pl.'s Mot. To Extend Time to Comply
with the Court's Directive Dated December 23, 2016
(ECF No. 18). Mr. Day did not specify how long he would need
in order to comply with the Court's order. Id.
On January 5, 2017, the Magistrate Judge granted Mr.
Day's motion for extension to January 20, 2017.
Order (ECF No. 19).
January 18, 2017, Mr. Day moved for another extension of time
to provide the necessary information to the Court.
Pl.'s Second Mot. to Extend Time to Comply with the
Court's Directive Dated January 5, 2017 (ECF No.
20). Again based on his asserted medical condition, Mr. Day
asked for an additional sixty days to supply the names and
addresses of the Defendants. Id. at 1-2. Mr. Day
directed the Court to review his social security file on the
“federal government database” to corroborate his
medical condition. Id. On January 19, 2017, the
Magistrate Judge granted the motion in part and denied it in
part, allowing Mr. Day until February 21, 2017 to provide the
Court with the necessary information and warning Mr. Day that
if he failed to provide the Court with this information, his
Complaint would be subject to dismissal. Order (ECF
No. 21). The Magistrate Judge declined to seek out and review
the contents of Mr. Day's social security file.
Id. At the same time, the Magistrate Judge informed
Mr. Day that if he supplied the names and addresses of the
Defendants, the Marshal Service would serve the Defendants
and the case could proceed. Id.
of complying with the Court order, Mr. Day filed yet another
motion to stay on February 17, 2017. Pl.'s Mot. to
Stay (ECF No. 22). In this motion, Mr. Day revealed that
he had filed a state court action against the same Defendants
involving the same automobile accident. Id. at 1. He
declared the state court action to be the “lead
case” and the state court to be a “more
compatible court.” Id. at 1-2. He informed the
Court that the Defendants are being served in that case.
Id. at 2. As for the addresses of Lorna and Kenneth
Grey, Mr. Day observed that he had set forth their street
addresses in his Complaint, but Mr. Day went on to accuse
them of intentionally evading service of process in the state
case and said that he was not sure if they were using a
“blind drop” address and were scammers.
Id. Mr. Day acknowledged that he had not provided
the Court with the addresses of the two insurance company
defendants. Id. Mr. Day then accused the federal
court of having exhibited “EXTREME bias and
prejudice” against him by “denying the law,
facts, and evidence exist when they pertain to [him]”
and by creating a “fraudulent database file” on
him. Id. Mr. Day asked that this federal case be
stayed pending the resolution of the state case in order to
avoid the statute of limitations. Id.
March 29, 2017, the Magistrate Judge issued a recommended
decision in which he recommended that Mr. Day's Complaint
be dismissed without prejudice. Recommended
Dismissal (ECF No. 23). The Magistrate Judge noted that
Mr. Day had failed to comply with the Court's orders that
required him to supply the Court with the names and addresses
of the Defendants and Mr. Day had further indicated a
preference for proceeding in state court. Id. at
1-4. Accordingly, the Magistrate Judge recommended that the
Complaint should be dismissed. Id. at 5. The only
question was whether the Complaint should be dismissed with
or without prejudice and in deference to Mr. Day's pro se
status, the Magistrate Judge recommended that the dismissal
be without prejudice. Id. at 4. The Magistrate Judge
also recommended that Mr. Day's motion to stay be denied.
Id. at 5.
April 4, 2017, Mr. Day filed an objection to the recommended
dismissal of his Complaint. Pl.'s Obj. to the
Recommended Dismissal Order (ECF No. 24). In the same
document as this objection, he moved to vacate the March 29,
2017 order. Pl.'s Mot. to Vacate the March 29, 2017
“Thinly Disguised Final-Default Order” (ECF
Nos. 24, 25). In his objection and motion, Mr. Day repeatedly
describes the Magistrate Judge's March 29, 2017
recommended decision as “cunning, misleading and
deceptive.” Id. at 1-13. Finally, on June 23,
2017, Mr. Day filed an amended complaint. Am. Compl.
(ECF No. 26).