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Mark Jackson v. the Dow Chemical Company; Rohm and Haas Company; Rohm and


September 28, 2012


The opinion of the court was delivered by: James Knoll Gardner United States District Judge


This matter is before the court on three motions to dismiss. For the reasons expressed in this Opinion, I grant the Certain Defendants' Motion to Dismiss; and I grant the Motion of Defendants Liberty Mutual Insurance Company, Lori Hamlin, Nancy May, Richard P. Quinlan, Sean B. McSweeney and Michael Miller to Dismiss Plaintiff's Complaint. Accordingly, I dismiss plaintiff's claims with prejudice against all defendants. I dismiss as moot Defendant Jacques Croisetiere's Motion to Dismiss.


Jurisdiction is proper in this court because plaintiff's complaint contains causes of action arising under federal law. 28 U.S.C. § 1331. Plaintiff's pendent state-law claims are within this court's supplemental jurisdiction because they form part of the same case or controversy. Id. § 1367(a).


Venue is proper in this court because a substantial part of the events giving rise to plaintiff's claims occurred in this judicial district. 28 U.S.C. § 1391(b)(2). *fn1


Motions to Dismiss On November 2, 2010 plaintiff pro se filed a Complaint in this matter in the United States District Court for the District of Delaware in case number 10-cv-00938. *fn2

On January 28, 2011 Certain Defendants' Motion to Dismiss was filed on behalf of defendants The Dow Chemical Company; Rohm and Haas Company; Raj L. Gupta; Pierre R. Brondeau; Jacques M. Croisettiere; Robert A. Lonergan, Esquire; Ellen Friedell, Esquire; Royce Warrick, Esquire; Jane Greenetz; Deanna May; and Cynthia Mazer ("the Rohm and Haas defendants").*fn3

Also on January 28, 2011, the Motion of Defendants Liberty Mutual Insurance Company, Lori Hamlin, Nancy May, Richard P. Quinlan, Sean B. McSweeney and Michael Miller to Dismiss Plaintiff's Complaint was filed. *fn4 I refer to this group of defendants as the "Liberty Mutual defendants". On February 14, 2011 plaintiff filed responses in opposition to the Rohm and Haas defendants' motion to dismiss *fn5 and to the Liberty Mutual defendants' motion to dismiss. *fn6

On February 22, 2011 the Liberty Mutual defendants filed a reply brief in support of their motion to dismiss. *fn7 On February 25, 2011 the Rohm and Haas defendants filed a reply brief in support of their motion to dismiss. *fn8

On October 24, 2011, after the transfer of venue to this court, defendant Jacques Croisetiere joined the Certain Defendants' Motion to Dismiss filed on January 28, 2011. *fn9

Therefore, every defendant that has appeared in this action is seeking dismissal pursuant to the within motions to dismiss. *fn10

Other Pending Motions While the action was pending in the District of Delaware, plaintiff moved for leave to file surreply briefs and a in support of his opposition to the various motions to dismiss. *fn11

Both the Liberty Mutual defendants and the Rohm and Haas defendants opposed plaintiff's request. *fn12

Although the issues presented in both the Rohm and Haas defendants and the Liberty Mutual defendants' motions to dismiss have been extensively briefed, I grant plaintiff's motion for leave to file supplemental briefing in support of its opposition to the motions to dismiss. Accordingly, I have considered plaintiff's surreply briefs in the adjudication of the Rohm and Haas defendants and Liberty Mutual defendants' motions to dismiss. *fn13

After the case was transferred to this district, it was assigned to former United States District Senior Judge Louis H. Pollak, who in turn ordered that certain matters of pretrial management be handled by United States Magistrate Judge M. Faith Angell. *fn14

On October 26, 2011, Judge Angell stayed the case pending resolution of the motions to dismiss. *fn15 On October 27, 2011 plaintiff filed an objection to Judge Angell's stay of discovery. *fn16 The defendants filed responses to plaintiff's objections. *fn17 Plaintiff's objections to the stay remain pending.

On May 31, 2012 plaintiff filed a motion to lift the stay. *fn18 The defendants again opposed the requested relief. *fn19 On June 21, 2012 plaintiff sought leave to file a reply memorandum in support of his motion to lift the stay. *fn20 Both plaintiff's motion to lift the stay and his motion for leave to file a reply remain pending.

In addition, on March 22, 2012, plaintiff requested an entry of default against the Rohm and Haas Company Benefits Administrative Committee. *fn21 The Clerk has taken no action in regard to this request.


A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).

Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."

Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) "[does] not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949. *fn22

In determining whether a plaintiff's complaint is sufficient, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief." Fowler, 578 F.3d at 210 (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

Although "conclusory or bare-bones allegations" will not survive a motion to dismiss, Fowler, 578 F.3d at 210, a complaint may not be dismissed "merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231. Nonetheless, to survive a 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotation omitted).

The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted therein. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.

Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).

Ultimately, this two-part analysis is "context-specific" and requires the court to draw on "its judicial experience and common sense" to determine if the facts pled in the complaint have "nudged [plaintiff's] claims" over the line from "[merely] conceivable [or possible] to plausible."

Iqbal,556 U.S. at 680, 129 S.Ct. at 1950-1951, 178 L.Ed.2d at 884-885 (internal quotations omitted).

A well-pleaded complaint may not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941.

FACTS Based upon the averments in plaintiff's Complaint, attached exhibits, and matters of public record, including other judicial proceedings, the pertinent facts are as follows. *fn23

Plaintiff Mark Jackson was employed as a certified public accountant by defendant Rohm and Haas Company, a manufacturer of specialty chemical products. Plaintiff worked in the Financial Reporting and Analysis Group and then in the Agricultural Chemicals Business. *fn24

On June 17, 1999 plaintiff filed a Complaint in Pennsylvania state court against his then-employer, defendant Rohm and Haas Company, and several of its employees who are not parties to the within action. The gravamen of plaintiff's case in this suit was that the defendants had violated plaintiff's personal privacy while investigating allegations by a co-worker that plaintiff sexually assaulted her on a date. *fn25

Plaintiff prevailed in a jury trial, but the Philadelphia Court of Common Pleas granted defendants a judgment notwithstanding the verdict on the ground that plaintiff's claims were barred by the state Workers' Compensation Act. *fn26

In 2003, plaintiff brought the first of what would prove to be four federal lawsuits.

On September 19, 2003, plaintiff filed a Complaint ("Jackson I") against defendant Rohm and Haas Company, several of its employees, and several lawyers and law firms involved in representing Rohm and Haas Company in plaintiff's prior state-court suit. In Jackson I plaintiff alleged that Rohm and Haas Company and its employees and lawyers had falsified a piece of evidence in the state-court suit, which plaintiff pleaded as a violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, as well as state law. *fn27

Plaintiff's federal claims in Jackson I were dismissed for failure to state a claim, and the court declined to retain jurisdiction over his pendent state-law claims. Plaintiff filed a Notice of Appeal with the United States Court of Appeals for the Third Circuit. On February 26, 2007 the Third Circuit affirmed. *fn28

On April 19, 2007 plaintiff re-filed the state-law claims from Jackson I in the Philadelphia Court of Common Pleas. The Court of Common Pleas granted judgment on the pleadings to the defendants on all claims, with one exception not relevant here. *fn29

The Court of Common Pleas concluded that plaintiff's claims were barred by the preclusive effect of his first state-court suit. That decision was affirmed by the Superior Court of Pennsylvania. *fn30 After the within Complaint was filed, the Supreme Court of Pennsylvania denied leave for further appeal in his second state-court suit. *fn31

On September 19, 2005, plaintiff brought a second federal suit ("Jackson II") against the Jackson I defendants; the lawyers who represented the Jackson I defendants; and defendant

Liberty Life Assurance Company, the claims administrator of Rohm and Haas Company's long-term disability benefit plan.*fn32

Plaintiff claimed in Jackson II that the defendants improperly interfered with plaintiff's disability benefits in an effort to gain an advantage in the Jackson I litigation. *fn33

Plaintiff's Jackson II complaint also contained claims that had already been deemed frivolous in the course of Jackson I, and plaintiff's counsel was sanctioned for including these claims again in the complaint filed in Jackson II. *fn34

Plaintiff thereafter submitted several amended pleadings, and plaintiff's second amended complaint was found to contain five claims that survived a motion to dismiss. *fn35

In the interim, on August 18 2006 plaintiff filed a third federal suit ("Jackson III"). The Jackson III complaint substantially overlapped with the allegations of Jackson II but also contained claims relating the termination of plaintiff's employment and disability benefits. *fn36 Nearly all of the claims in the original Jackson III complaint were dismissed. *fn37

On May 21, 2008, Jackson II and Jackson III were consolidated. After consolidation, plaintiff was ordered to submit a single "consolidated amended complaint, alleging all claims for which he has a good faith basis." Plaintiff was advised that further amendments of his pleadings would not be permitted and that the consolidated amended complaint "must be concise and must comply with all federal and local rules." *fn38

Plaintiff filed his consolidated amended complaint ("CAC") on June 11, 2008. *fn39 On July 2, 2012 all the defendants moved to dismiss the consolidated amended complaint. *fn40

While the motions to dismiss were pending, plaintiff sought to enjoin two business transactions by the defendants: the acquisition of Rohm and Haas by Dow Chemical, and the acquisition of Safeco by Liberty Mutual. *fn41 Specifically, on September 15, 2008 plaintiff filed a motion for a preliminary injunction in the Jackson II docket. *fn42

Plaintiff's stated basis for this relief was that Rohm and Haas and Liberty Mutual had failed to disclose the existence of the Jackson II and Jackson III litigation in federal and state regulatory filings prior to the transactions. On September 15, 2008 plaintiff's motion for a preliminary injunction was denied. *fn43

On September 22, 2008, a telephone conference call concerning plaintiff's efforts to enjoin the acquisition of Safeco was held with the Chief Hearing Officer for the Office of the Insurance Commissioner of the State of Washington. Counsel for Liberty Mutual and counsel for plaintiff participated on the call. *fn44

During the call, Liberty Mutual admitted it had knowledge of plaintiff's claims alleged in Jackson II and Jackson III, but did not disclose them because it had determined that plaintiff's claims were not "material". Moreover, Liberty Mutual intentionally misled the Chief Hearing Officer on the conference call concerning the authority of United States Magistrate Judge Angell's authority to decide plaintiff's motion to enjoin Liberty Mutual's acquisition of Safeco, by stating that she had full authority to issue a preliminary injunction. *fn45

On December 16, 2008, Magistrate Judge Angell issued a report and recommendation on defendants' motions to dismiss the CAC ("R&R of December 16, 2008"). *fn46 Judge Angell concluded that the CAC should be dismissed with prejudice in its entirety as a sanction for plaintiff's repeated failure to file a proper complaint and failure to obey the court's prior orders. *fn47 In adopting the R&R in part, Judge Pollak described the consolidated amended complaint as follows:

Viewed in the light of the history of this litigation and the decisions of this court, the CAC seems a model of obstructive and contumacious posturing. I do not consider most of the efforts by Jackson's counsel to be appropriate advocacy within the rules; instead, I agree with Judge Angell that they represent recurring obduracy of the kind that warrants sanctions....

Jackson v. Rohm & Haas Co., slip op. at 2, 2009 WL 773936, at *1 (E.D.Pa. Mar. 19, 2009) ("Opinion of Mar. 19, 2009"). *fn48

However, whereas the R&R of December 16, 2008 urged dismissal of all plaintiff's claims as a sanction for his misconduct, Judge Pollak determined that plaintiff should be permitted to proceed with four claims against Rohm and Haas under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and state law .*fn49

Plaintiff subsequently voluntarily dismissed those four claims and on March 25, 2009 took an appeal to the United States Court of Appeals for the Third Circuit. *fn50 The Third Circuit affirmed and plaintiff's petition to the United States Supreme Court for a writ of certiorari was denied on October 4, 2010. *fn51

While plaintiff's appeal was pending, defendant Dow Chemical Company was a defendant in a class action, of which plaintiff was a class member. On November 24, 2009, the United States District Court for the Southern District of Indiana preliminarily approved a Class Settlement Agreement between the R&H Pension Plan and the class. *fn52

Pursuant to the settlement agreement, the Dow Chemical Company was to send notice to class members by first class mail.

However, the Dow Chemical Company intentionally sent plaintiff's notice to an incorrect address. In sending the settlement notice to an incorrect address, defendants intended to prevent plaintiff from exercising his rights as a class member.

On November 2, 2010 plaintiff filed the within Complaint pro se ("Jackson IV") in the District of Delaware based on the conduct of defendants during the various state and federal litigation described above. Plantiff's Complaint asserts nineteen counts for relief. *fn53


Res Judicata Both the Liberty Mutual defendants and the Rohm and Haas defendants invoke res judicata as a ground to dismiss the present complaint for failure to state a claim on which relief may be granted.

The branch of res judicata invoked by the defendants is commonly known as claim preclusion. See Taylor v. Sturgell, 553 U.S. 880, 892 & n.5, 128 S.Ct. 2161, 2171, 171 L.Ed.2d 155, 168 (2008) (discussing terminology). Under federal law, claim preclusion applies "when three circumstances are present: (1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action." Mullarkey v. Tamboer (In re Mullarkey), 536 F.3d 215, 225 (3d Cir. 2008) (internal quotation marks omitted).*fn54

I will consider each of these three elements in turn.

1. Prior Final Judgment on the Merits There is no question that the dismissal of plaintiff's consolidated amended complaint was litigated to final judgment in the prior suits. Judgment became final when the United States Supreme Court denied Jackson's petition for a writ of certiorari. The only question is whether the prior final judgment was entered on the merits. Plaintiff maintains that the prior judgment was not on the merits because it was entered as a sanction for "a pleadings violation." *fn55

The prior final judgment was entered as a sanction for plaintiff's repeated failure to comply with the pleading standards of Rule 8(a) and with court orders. The standards for such a dismissal are governed in this judicial circuit by Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868-70 (3d Cir. 1984). The Poulis factors were discussed extensively in Judge Angell's R&R, Judge Pollak's opinion adopting the R&R in part, and the Third Circuit's opinion affirming dismissal. *fn56 Thus, there is no question that the prior final judgment was entered as a sanction under Poulis for failure to comply with federal rules and court orders---and not, as plaintiff maintains, for a "pleadings violation."

As a matter of federal law, dismissal of a plaintiff's claims with prejudice for failure to comply with federal court orders operates as an adjudication on the merits for preclusion purposes. The Third Circuit does not appear to have squarely said as much, but this is the uniform view of the federal courts.

See Dillard v. Security Pacific Brokers, Inc., 835 F.2d 607, 608 (5th Cir. 1988) (claim preclusion accorded to earlier federal judgment entered as sanction for failure to comply with court order); United States v. $149,345 U.S. Currency, 747 F.2d 1278, 1280 (9th Cir. 1984) (same); see also 18A Wright & Miller, supra, § 4440 at 205 n.1 (collecting cases).

This principle has been expressed, albeit in dicta, by the Supreme Court. See Costello v. United States, 365 U.S. 265, 286, 81 S.Ct. 534, 545, 5 L.Ed.2d 551, 565 (1961) (stating that dismissal for reasons enumerated in Federal Rule 41(b), including " comply with an order of the Court," would normally "bar a subsequent action"). And, were there any doubt about whether state law should also be consulted, the Third Circuit has recognized that dismissal as a sanction for failure to obey a court order would give rise to preclusion under Pennsylvania law. McCarter v. Mitcham, 883 F.2d 196, 199-200 (3d Cir. 1989). The principle is clear and clearly applies to the dismissal of plaintiff's prior claims.

Not all of plaintiff's claims were dismissed as a sanction. *fn57 But these claims were also litigated to a final judgment on the merits for purposes of preclusion because plaintiff voluntarily dismissed his claims with prejudice.

"[V]oluntary dismissal with prejudice operates as a final judgment on the merits" for purposes of claim preclusion, Vacanti v. Apothaker & Associates, P.C., Civ. No. 09-5827, 2010 WL 4702382, at *4 (E.D. Pa. Nov. 12, 2010); see also Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d Cir. 1995), and plaintiff elected to dismiss his remaining claims with prejudice. *fn58 Therefore, the prior final judgment was entered on the merits as to all claims for purposes of claim preclusion.

Plaintiff's efforts to avoid this conclusion fail. He relies principally on the argument that sanctions imposed under Rule 11 for an improper pleading are not considered adjudications on the merits of the pleading and normally do not preclude the filing of an amended pleading. But the Rule 11 cases collected by plaintiff are inapposite. The CAC was not dismissed as a sanction under Rule 11; rather, it was dismissed for failure to obey the Federal Rules and prior court orders, as contemplated by Rule 41(b). *fn59

Plaintiff also claims that Rule 41(b) does not preclude re-litigation of his claims. Rule 41(b) provides that a dismissal for failure to obey the Federal Rules or prior court orders "operates as an adjudication on the merits" unless one of three exceptions applies or unless the dismissing court says otherwise.

In Semtek, the Supreme Court cautioned that Rule 41(b) was not intended to govern federal claim preclusion. See 531 U.S. at 501-506, 121 S.Ct. 1021, 1024-1029, 149 L.Ed.2d 32, 38-43. Instead, Rule 41(b)'s reference to "adjudication on the merits" should be read as shorthand for "dismissal with prejudice," and the effect of dismissal with prejudice under Rule 41(b) is simply to prevent the losing party from bringing the same claims back to the same court. Id. 531 U.S. at 505-506, 121 S.Ct. at 1026-1027, 149 L.Ed.2d at 41.

By implication, dismissal with prejudice under Rule 41(b) does not necessarily preclude bringing the same claims to a different court. Id. Plaintiff apparently believes, based on Semtek, that the dismissal of the CAC with prejudice under Rule 41(b) only bars him from bringing the same claims again in this court; hence his filing of Jackson IV in the District of Delaware.

Plaintiff fails to understand Semtek. The Supreme Court did not intend to license forum shopping from one federal court to another after dismissal with prejudice under Rule 41(b). It is true that Semtek holds that Rule 41(b), standing alone, does not preclude the plaintiff from filing the same claims in a different court. See Semtek, 531 U.S. at 503, 121 S.Ct. at 1025, 149 L.Ed.2d at 39. Rule 41(b) was intended to govern the internal procedures of the federal courts and not to establish broad principles of federal preclusion. Id.

As Semtek explains, questions of preclusion for federal court judgments are governed not by Rule 41(b) but rather by a specialized body of federal common law. Id. at 508-509, 121 S.Ct. at 1028-1029, 149 L.Ed.2d at 43. And the relevant federal principle is clear under these circumstances and has already been identified above: dismissal as a sanction for failure to obey court orders operates as an adjudication on the merits for claim preclusion purposes.

Finally, as a practical matter, plaintiff's contention that he has never had his "day in court" on these claims is profoundly unmoving. In fact, the dismissal of plaintiff's CAC was founded on plaintiff's failure to file a pleading that was not rife with frivolous or baseless claims. *fn60 Plaintiff has not been deprived of his day in court.

2. Same or Closely Related Parties Claim preclusion bars the re-litigation of claims against both the parties to the prior suit and those in privity with them. The traditional concept of privity was limited to a set of substantive legal relationships, like bailor and bailee. Restatement (Second) of Judgments § 52 (1982); 18A Wright & Miller, supra, § 4448, at 326-327. But the concept has been pragmatically expanded, and claim preclusion may now be applied whenever "there is a close or significant relationship between successive defendants." Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 966 (3d Cir. 1991) (quoting Gambocz v. Yelencsics, 468 F.2d 837, 841 (3d Cir. 1972)); see also Taylor, 533 U.S. at 894 n.8, 128 S.Ct. at 2171 n.8, 171 L.Ed.2d 169 n.8 ("privity" is now used "as a way to express the conclusion that nonparty preclusion is appropriate on any ground").

Plaintiff's present complaint names eighteen named defendants plus fifteen John Doe defendants. Of those, ten were also named in the consolidated amended complaint. *fn61 With respect to the remaining eight defendants, all appear to have a close or significant relationship with defendants named in the CAC.

I begin with two businesses named in the present complaint: the Dow Chemical Company and Liberty Mutual Life Insurance Company. *fn62 In his prior suit, plaintiff named the Liberty Life Assurance Company of Boston as a defendant. *fn63

Plaintiff himself alleges that "Liberty Mutual is the parent company of Liberty Life" and that the two companies should be treated as "alter egos." *fn64 This suffices to establish a close and significant relationship for claim preclusion, at least where the interests of the companies appear to be congruent and plaintiff makes no effort to distinguish them. See Mars, Inc. v. Nippon Conlux Kabushiki-Kaisha, 58 F.3d 616, 619 (Fed. Cir. 1996) (parent corporation can invoke claim preclusion when wholly owned subsidiary was named as defendant in prior suit on identical claims) (applying Third Circuit law); Doe v. Urohealth Systems, Inc., 216 F.3d 157, 162 (1st Cir. 2000) (similar); cf. Lubrizol Corp., 929 F.2d at 966 (wholly owned subsidiary can invoke claim preclusion when parent was named in prior suit).

Likewise, Dow Chemical is alleged to wholly own the Rohm and Haas Company and is entitled to invoke the claim-preclusive effect of the prior judgment for similar reasons.

I turn next to five defendants who appear to be employees of parties named in the prior suit or their privies: Pierre R. Brondeau, Jacques M. Croisetiere, Cynthia Mazer, Richard P. Quinlan, and Sean B. McSweeney. *fn65

The first three are alleged to be employees of Rohm and Haas and are sued for actions arising out of their employment. *fn66

The second two are alleged to be employees of Liberty Mutual and are also sued for actions arising out of their employment. *fn67

Based on the Complaint, these employees have the sort of close and significant relationship with their employers that has been found to justify preclusion in other cases. See, e.g., Salerno v. Corzine, 449 Fed.Appx 118, 122-123 (3d Cir. 2011) (privity between employer and employees); Shellenberger v. United Parcel Services, Civ. No. 05-2266, 2006 WL 208683, at *4 (E.D.Pa. Jan. 25, 2006) (same). Thus, the newly named employees can benefit from the preclusive effect of the judgment entered in favor of their employers in the prior suit.

That leaves only one other defendant to discuss: Michael Miller, Esquire, who is alleged to be Liberty Mutual's outside counsel at Drinker Biddle & Reath LLP. *fn68

An attorney-client relationship may justify application of claim preclusion even when the attorney was not a party to the prior suit. See Weinberger v. Tucker, 510 F.3d 486, 492-493 (4th Cir. 2007) (collecting cases); e.g., Iseley v. Talaber, Civ. No. 04-444, 2008 WL 906508, at *3 n.1 (M.D.Pa. Mar. 31, 2008) (privity via attorney-client relationship and identity of interests).

Here, Attorney Miller is sued only for his representation of Life Liberty in Jackson II and Jackson III. *fn69

Under the circumstances, he is also entitled to invoke claim preclusion.

I thus conclude that all defendants were parties to the prior suit or have a close and significant relationship to parties in the prior suit. The RICO cases cited by plaintiff in this context are inapposite and unhelpful; they say nothing at all about preclusion.

3. Same Causes of Action The final element required for claim preclusion is that the present suit involve the same or closely related causes of action as the prior suit. "The doctrine of res judicata bars not only claims that were brought in a previous action, but also claims that could have been brought." In re Mullarkey, 536 F.3d at 225.

To determine the scope of which claims are precluded, federal courts look to whether the claims "aris[e] out of the same transaction or occurrence." Lubrizol Corp., 929 F.2d at 963 (internal quotation marks omitted). "[T]he focus of the inquiry is 'whether the acts complained of were the same, whether the material facts alleged in each suit were the same, and whether the witnesses and documentation required to prove such allegations were the same.'" Duhany v. Attorney General, 621 F.3d 340, 348 (3d Cir. 2010) (quoting Lubrizol Corp., 929 F.2d at 963).

Plaintiff's current Complaint contains nineteen enumerated claims. *fn70 All of these claims, with two exceptions discussed below, are identical or essentially identical to claims pleaded in plaintiff's prior suit; plaintiff has reproduced them verbatim or with only trivial differences. *fn71 And they rely for the most part on factual allegations reproduced in the body of the pleading that are identical to the allegations made in the CAC. Indeed, defendants observe that the present Complaint contains 129 paragraphs reproduced verbatim from the CAC, as well as 34 paragraphs reproduced verbatim but with the substitution of "Liberty Mutual" for "Liberty Life."

Plaintiff argues that these claims are not identical because they rely in part on conduct that allegedly occurred after the filing of the CAC on June 11, 2008. *fn72

But plaintiff's addition of some new facts cannot obscure the "essential similarity of the underlying events giving rise to the various legal claims." Davis v. U.S. Steel Supply Co., 688 F.2d 166, 171 (3d Cir. 1982) (en banc); see also United States v. Athlone Indus., Inc., 746 F.2d 977, 984 (3d Cir. 1984). Plaintiff has, at best, sprinkled some more recent factual allegations into his essentially unchanged narrative. Plaintiff has not altered the material facts of the claims or his theory of recovery. I have no difficulty concluding that these claims are precluded.

However, there are two counts in the current complaint which require separate discussion. The first is Count V, which alleges a RICO violation. *fn73 The second is Count XI, which alleges a violation of Indiana's RICO law, Ind. Code §§ 35-45-6 et seq. *fn74

These two counts are superficially distinct from the other counts in the Complaint in that they rely primarily on factual allegations that postdate the CAC.

As to Count V, plaintiff alleges that Dow Chemical and its agents sent notice of a proposed settlement for litigation by a class of pensioners (of which plaintiff is allegedly a member) to the wrong mailing address, in an intentional effort to prevent plaintiff from objecting to the settlement or notifying the court overseeing the class action of the existence of Jackson II and Jackson III. *fn75

As to Count XI, plaintiff alleges that Liberty Mutual intentionally refrained from disclosing the existence of Jackson II and Jackson III to the Indiana Department of Insurance in an effort to facilitate Liberty's acquisition of Safeco and another insurer. *fn76

According to plaintiff, he brought this failure to the attention of Washington state regulators; and, at a hearing before a Washington regulator, representatives of Liberty Mutual allegedly misrepresented the materiality of Jackson II and Jackson III and the status of plaintiff's then-pending efforts in this court to enjoin the merger. *fn77

Nevertheless, I find that both Counts V and XI are precluded by the final judgment entered in the prior litigation. Counts V and XI share an "essential similarity" with the claims made in the CAC because they rely on and incorporate the vast majority of plaintiff's baseless factual allegations concerning defendants' status as RICO enterprises. Moreover, a "plaintiff who seeks to enlarge a minor new claim by including precluded events runs the risk that the whole will be precluded, perhaps from a suspicion that an action would not have been brought for the new events alone." 18 Wright & Miller, § 4409, at 54 (2011 Supp.)

Therefore, these counts cannot be surgically separated from the mass of plaintiff's otherwise precluded claims.

Plaintiff's only other effort to distinguish his current claims from his prior claims is to argue that Judge Angell already determined that his claims "are not identical." The quoted language comes from a report and recommendation issued by Judge Angell in Jackson II on January 21, 2011, and adopted by Judge Pollak on April 6, 2011. *fn78

The questions presented in the R&R were whether plaintiff should be sanctioned for filing Jackson IV in the District of Delaware and whether the Delaware action ought to be enjoined under the All Writs Act, 28 U.S.C. § 1641, in order to prevent plaintiff from re-litigating his claim. *fn79 Therefore, the R&R did not consider or resolve any questions of preclusion.

Remaining Motions In light of my conclusion that the prior final judgment entered on the CAC precludes plaintiff from proceeding with any of his claims against any of the named defendants, I have no reason to consider the numerous other pending motions. Those motions are dismissed as moot.


For the foregoing reasons, the motions to dismiss filed by the Rohm and Haas defendants and the Liberty Mutual defendants are granted on res judicata grounds. Plaintiff's claims are precluded by the prior final judgment, entered as a sanction for his failure to obey court orders, on essentially similar claims against the same, or closely related, defendants. Therefore, plaintiff's Complaint is dismissed with prejudice as to all defendants.

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