United States District Court, D. Maine
ROY A. DAY, Plaintiff,
LORNA R. GREY, et al., Defendants.
ORDER GRANTING MOTIONS TO DISMISS
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
of defendants move to dismiss plaintiff's personal injury
action on res judicata grounds, alleging that in 2016, a
state court dismissed with prejudice a sufficiently similar
action, involving identical parties and the same motor
vehicle accident. The Court concludes that this claim is
precluded under the doctrine of res judicata and grants the
defendants' motions. The other defendant moves to dismiss
the plaintiff's contractual and fraud claims because the
plaintiff failed to allege a provision of the contract that
it breached and because the contract's silence does not
amount to fraud. The Court agrees with the defendant and
dismisses the contractual and fraud claims.
November 7, 2016, Roy A. Day, proceeding pro se, filed suit
against Lorna and Kenneth Grey (the Greys), GEICO General
Insurance Company (GEICO), and 21st Century
Centennial Insurance Company (21st Century) in
Cumberland County Superior Court. Mot. to Dismiss,
Attach 2, Ex. 2 at 1 (ECF No 32) (Compl. in
State Action). In his state court Complaint,
Mr. Day alleged “negligence (with an overlay of fraud),
” and claimed that he suffered damages from a motor
vehicle accident involving the Greys that “arose out of
a vehicle accident which occurred on April 29, 2016, in
Pasco County, Florida, ” that the accident took place
“in the Hudson Library parking lot, ” and that
the vehicles involved were his “2015 Chevrolet
Spark” and the Greys' motor vehicle. Id.
¶¶ 1-8. In his state court Complaint, Mr. Day
alleged that one of the Greys “was driving a vehicle in
a willful, intentional, malicious, and cunning, deceptive,
and misleading (fraudulent) conduct at a high rate of speed.
. . with a fit of rage to willfully, intentionally, and
maliciously cause damage to specific vehicles as a
target.” Id. ¶ 7. He also alleged that
21st Century insured his motor vehicle and that
GEICO insured the Greys' motor vehicle. Id.
¶¶ 1, 2.
Greys and GEICO moved to dismiss Mr. Day's Complaint
pursuant to Maine Rule of Civil Procedure
12(b)(6). Id., Attach. 3, Ex. 3
(ECF No. 32-3) (Mot. to Dismiss in State Action). On
July 11, 2017,  Superior Court Justice Lance Walker
granted the Defendants' motion and ordered “that
all of the Plaintiff's claims as against Defendants Lorna
Grey, Kenneth Grey, and GEICO General Insurance Company are
Dismissed with Prejudice.” Id., Attach 4,
Ex. 4 (ECF No. 32-4) (Order in State
Action). On March 15, 2018, the Maine Supreme
Judicial Court affirmed the judgments against Mr. Day.
Day v. Grey, Law Court Docket No. Mem. 18-18 (Mar.
on June 3, 2016, Mr. Day filed suit in this Court against the
same parties, again 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
Compl. ¶¶ 1-34 (ECF No. 1); Day v.
Grey, (Day I) No. 2:16-cv-00275-JAW (D. Me.)
(Compl. in Day I). He also alleged claims against
21st Century, the insurer of his vehicle at the
time of the accident, for breach of contract and fraud,
alleging that they did not state with specificity in his
contract that they do not allow “direct billing”
from the rental car company from whom he rented a vehicle
only from Enterprise Rent-A-Car, causing him to suffer
“severe emotional distress.” Compl. at
14. This time, he invoked diversity jurisdiction, stating
that he resides in Florida, that the Greys reside in Maine,
that GEICO is a Washington, D.C., corporation, and that
21st Century is a Delaware corporation; he sought
damages in a sum exceeding the jurisdictional amount. See
id. ¶¶ 1-5, 28.
28, 2017, the Court dismissed Day I without
prejudice, see J. of Dismissal (ECF No. 28), after
Mr. Day “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 Mot. to Stay
and Affirming Dismissal of Compl. at 1-8 (ECF No. 27).
31, 2017, the very next business day, Mr. Day initiated this
suit (Day II) against the Greys, GEICO, and
21st Century by filing an amended version of his
Day I Complaint. Compl. (ECF No. 1). The
claims and facts in the Day II Complaint are
identical to the claims and facts in the state court action,
as is the type of relief sought. Compare id., with
Compl. in State Action. The only relevant difference
is that in the federal complaint, Mr. Day alleges facts to
establish diversity jurisdiction and requests higher damages,
Compl. at 1-11; in the state court action, Mr. Day,
with the federal jurisdictional limit in mind, capped his
damages at $74, 000. Compl. in State Action at 1, 3,
6 (“Accordingly, with each and all damages, as
requested in each specific Count (Count One through Count
Four), set at $74, 000. (Seventy-Four Thousand Dollars), the
State Court of Maine has competent jurisdiction of the
instant Complaint, and NOT Federal Court”).
August 19, 2017, the Mr. Day filed an appeal of the judgment
against him in Day I to the United States Court of
Appeals for the First Circuit. See Day I, Not. of
Appeal (ECF No. 29). On September 5, 2017, a Magistrate
Judge of this District stayed this case pending the outcome
of Mr. Day's appeal in Day I. Order Staying Case
(ECF No. 12). On December 4, 2017, the Court of Appeals for
the First Circuit affirmed the dismissal of Mr. Day's
Complaint, J. (ECF No. 36), and on December 27,
2017, the First Circuit issued its mandate. Mandate
(ECF No. 37).
to this lawsuit, on March 22, 2018, Mr. Day filed a motion
for a declaratory ruling and a motion for an emergency
ruling. Mot. for Declaratory Ruling, Mot. for Emergency
Ruling (ECF No. 19). On May 1, 2018, the Greys and GEICO
filed a motion to dismiss for failure to state a
claim. Mot. to Dismiss for Failure to State a
Claim (ECF No. 32) (Greys' Mot). Mr. Day
responded to the Greys' motion on July 14, 2018.
Resp. to Mot. to Dismiss for Failure to State a
Claim (ECF No. 51) (Pl.'s Opp'n to
Greys' Mot.). The Greys replied on July 24, 2018.
Reply to Resp. to Mot. to Dismiss for Failure to State a
Claim (ECF No. 57) (Greys' Reply).
same day that the Greys filed their motion to dismiss,
21st Century also moved to dismiss. Mot. to
Dismiss Pl.'s Compl. (ECF No. 30)
(21st Century's Mot.). Mr. Day
responded in opposition on July 22, 2018. Resp. in
Opp'n to Mot. to Dismiss Pl.'s Compl. (ECF No.
55) (Pl.'s Opp'n to 21st Century's
Mot.). 21st Century replied on August 6,
2018. Reply to Resp. to Mot. to Dismiss (ECF No. 64)
(21st Century's Reply).
Rule of Civil Procedure 8(a)(2) requires that a complaint
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief” in
order to “give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.”
Conley v. Gibson, 355 U.S. 41, 47 (1957). Rule 12(b)(6)
allows a defendant to move to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). The United States
Supreme Court has stated:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions . . . Factual allegations must be enough to raise
a right to relief above the speculative level.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Under this standard, the pleading must contain
“only enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. Facial
plausibility “asks for more than a sheer possibility
that a defendant has acted unlawfully.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). In ruling on a 12(b)(6)
motion, a court “must accept as true all the factual
allegations in the complaint and construe all reasonable
inferences in favor of the plaintiff.” Alternative
Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267
F.3d 30, 33 (1st Cir. 2001). The Defendants are entitled to
dismissal for failure to state a claim only if “it
appears to a certainty that the plaintiff would be unable to
recover under any set of facts.” State St. Bank
& Trust Co. v. Denman Tire Corp., 240 F.3d 83, 87
(1st Cir. 2001).
in deciding a motion to dismiss, a court may not consider any
document outside of the pleadings, unless the motion is
converted into a motion for summary judgment. Watterson
v. Page, 987 F.2d 1, 3 (1st Cir. 1993). There is a
narrow exception, however, “for documents the
authenticity of which are not disputed by the parties; for
official public records; for documents central to
plaintiffs' claim; or for documents sufficiently referred
to in the complaint.” Id.; see also Young v.
Lepone, 305 F.3d 1, 11 (1st Cir. 2002) (“when the
factual allegations of a complaint revolve around a document
whose authenticity is unchallenged, that document effectively
merges into the pleadings and the trial court can review it
in deciding a motion to dismiss under Rule 12(b)(6)”)
(citations and internal quotation marks omitted).
Pro Se Litigants
are generally more relaxed about compliance with procedural
rules when a litigant is acting pro se. “The Supreme
Court has long held that complaints drafted by non-lawyers
are to be construed with some liberality.” Insituto
de Educacion Universal Corp. v. United States Dep't of
Educ., 209 F.3d 18, 23 (1st Cir. 2000) (citing
Hughes v. Rowe, 449 U.S. 5, 9 (1980)). Even so, the
First Circuit has written that “pro se status does not
free a litigant in a civil case of the obligation to comply
with procedural rules.” Rivera v. Riley, 209
F.3d 24, n.2 (1st Cir. 2000).
THE GREYS' AND GEICO'S MOTION TO DISMISS
Positions of the Parties
The Greys' Motion
Greys and GEICO (the Greys) contend that “this action
is barred by a previous action brought in the Maine Superior
Court, Cumberland County, and dismissed with prejudice on its
merits.” Greys' Mot. at 1. They allege
that Mr. Day's initial action in Federal Court, which was
dismissed without prejudice, was dismissed in part because
Mr. Day represented that Cumberland County Superior Court is
his preferred forum for which to pursue his claims.
Id. at 2. The Greys further allege that Mr. Day
failed to provide this Court with information regarding his
state court action in the “Related Cases” section
of his cover sheet, preventing this Court from effectively
screening the duplicate lawsuit. Id. As background,
the Greys detail Mr. Day's extraordinarily litigious
history, which includes the Florida State Supreme Court
referring to Mr. Day as “an abusive litigant”,
and the United States Supreme Court calling him “an
abuser of [its] certiorari process.” Id. at 8.
support of their argument of claim preclusion, the Greys note
that “this action and the State Court Action involve
the exact same parties.” Id. at 11 (citing
Camps Newfound/Owatonna Corp. v. Town of Harrison, et
al., 1998 ME 20, ¶ 11, 705 A.2d 1109). They further
aver “by mere comparison of the two complaints . . .
both actions arise from the ‘same aggregate of
operative facts”, because “both actions involve a
motor vehicle accident that occurred on April 29, 2016, in
Pasco County, Florida, in which Mr. and Mrs. Grey
accidentally struck Mr. Day's unoccupied vehicle while
parked in a library parking lot.” Id. Finally,
the Greys point to Justice Walker's order dismissing Mr.
Day's claim with prejudice as evidence of “a valid
final Judgment entered in the Grey and GEICO Defendants'
favor on claims asserted by Mr. Day on these same operative
Roy A. Day's Response
Day's opposition, in large part, is not responsive to the
Grey's motion or to this lawsuit. See generally
Pl.'s Opp'n to Grey's Mot. at 1-29. He does
argue, however, that the state court action was not dismissed
on its merits, because “NONE OF THE FACTS AND ISSUES
HAVE BEEN ENTERTAINED BY THE MAINE STATE COURTS.”
Id. at 5 (capitalization in original). He contends
that his due process rights were violated in his state court
action, and that the “Maine State Court Judge conspired
to illegally dismiss the Amended Complaint. To have ...