United States District Court, D. Maine
ROY A. DAY, Plaintiff
LORNA R. GREY, et al., Defendants
ORDER STAYING CASE
H. RICH III UNITED STATES MAGISTRATE JUDGE
to me by the court are the plaintiff's motions for leave
to proceed in forma pauperis and for service on the
defendants. See ECF Nos. 2-3. Because, subsequent to
filing those motions, and his simultaneous complaint, the
plaintiff appealed this court's dismissal without
prejudice of a prior nearly identical action, I stay this
case pending the outcome of that appeal.
3, 2016, the plaintiff, proceeding pro se, filed
suit against Lorna R. Grey, Kenneth Grey, Geico General
Insurance Company (“Geico”), and 21st
Century Centennial Insurance Company (“21st
Century”), alleging that on April 29, 2016, the Greys
deliberately drove their car into his, which was parked in a
library parking lot in Florida, causing him pain and
suffering as well as economic loss. See generally
Complaint (ECF No. 1), Day v. Grey (“Day
I”), No. 2:16-cv-00275-JAW (D. Me.). He invoked
diversity jurisdiction, alleging that he resides in Florida,
the Greys reside in Maine, Geico is a Washington, D.C.,
corporation, 21st Century is a Delaware
corporation, and he sought damages in a sum exceeding that
required to confer jurisdiction. See id.
¶¶ 1-5, 28.
28, 2017, the court dismissed Day I without
prejudice, see Judgment of Dismissal (ECF No. 28),
after 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, ” as well as
choosing “a state forum as a ‘more compatible
court' to proceed with this same lawsuit” and
electing “to cast aspersions against the judges of this
Court rather than comply with their orders[, ]” Order
on Motion To Stay and Affirming Dismissal of Complaint (ECF
31, 2017, the next business day, the plaintiff, proceeding
pro se, initiated this suit (“Day
II”) by filing an amended version of his complaint
in Day I. Compare Complaint (ECF No. 1),
Day II with Complaint, Day I. On the same
day, he also filed his motions for leave to proceed in
forma pauperis and for service of his complaint.
See ECF Nos. 2-3, Day II. From August 4,
2017, through August 16, 2017, he filed four successive
motions for an emergency ruling on his motion for service,
see ECF Nos. 4-7, Day II, all of which I
denied on August 16, 2017, cautioning that “neither
[the plaintiff's] name-calling, which has no place in
federal court, nor his now-daily re-filing of his motion for
emergency ruling is appropriate” and observing that his
pending motions would be addressed as the court's
schedule permitted, ECF No. 8, Day II.
August 19, 2017, the plaintiff filed an appeal of the
judgment against him in Day I to the United States
Court of Appeals for the First Circuit. See ECF No.
29, Day I.
filing his appeal in Day I, the plaintiff revived
that suit, effectively “splitting” his claims
between two separate pending actions. That is an inefficient
and impermissible approach to litigation. As this court has
A litigant with multiple related claims must not separate, or
split, the claims into multiple, successive cases, but must
include in the first action all of the claims that fall
within the Court's jurisdiction. Claim-splitting is
similar to, but notably different from res judicata. While
claim-splitting and res judicata both promote judicial
economy and shield parties from vexatious and duplicative
litigation, claim splitting is more concerned with the
district court's comprehensive management of its docket,
whereas res judicata focuses on protecting finality of
judgments. In the claim-splitting analysis, the test is
whether the first suit, assuming it were final, would
preclude the second suit. When claim splitting occurs, a
court may stay the second suit, dismiss it without prejudice,
enjoin the parties from proceeding with it, or consolidate
the two actions.
Perry v. Alexander, 2:15-cv-00310-JCN, 2017 WL
3084387, at *3 (D. Me. July 19, 2017) (citations and internal
quotation marks omitted).
res judicata context, it has been noted that the
denial of the preclusive effect of res judicata
while an appeal is pending “would lead to an absurd
result: Litigants would be able to refile identical cases
while appeals are pending, enmeshing their opponents and the
court system in tangles of duplicative litigation.”
In re Wisdom, Case No. 11-01135-JDP, Adv. No.
13-06045-TLM, 2016 WL 1039694, at *16 (Bankr. D. Idaho Mar.
15, 2016) (citation, internal quotation marks, and footnote
case, the plaintiff was not barred by res judicata
principles from bringing his second suit, the court having
dismissed Day I without prejudice. See, e.g.,
García-Goyco v. Law Envtl. Consultants, Inc., 428
F.3d 14, 19 (1st Cir. 2005) (“a dismissal without
prejudice is not a final adjudication on the merits for res
judicata purposes”). Nonetheless, the plaintiff was not
given leave to litigate two identical cases in this court
simultaneously, and it remains “an absurd result”
that he be permitted to do so.
I and Day II are, in all material respects,
identical. If the First Circuit grants the relief sought by
the plaintiff in Day I, it will preclude the
continuation of Day II. If the First Circuit denies
that relief, ...