Gimenez v. Morgan Stanley DW, Inc. , 202 F. App'x 583 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-13-2006
Gimenez v. Morgan Stanley DW
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2762
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"Gimenez v. Morgan Stanley DW" (2006). 2006 Decisions. Paper 325.
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ALD-3 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
NO. 06-2762
______________
HUMBERTO GIMENEZ
Appellant,
v.
MORGAN STANLEY DW, INC.
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 06-cv-01848)
District Judge: Honorable Anne E. Thompson
____________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
October 5, 2006
Before: SLOVITER, McKEE and FISHER, Circuit Judges.
(Filed October 13, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Humberto Gimenez, a pro se litigant proceeding in forma pauperis, appeals an
order of the United States District Court for the District of New Jersey dismissing his
complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Because the appeal is
without legal merit, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B).
Gimenez’s complaint alleges misconduct arising out of a 2004 sale of stock
conducted by Appellee, Morgan Stanley DW, Inc. (“Morgan Stanley”), on behalf of
Gimenez’s corporation, Humberto Gimenez Corp. The District Court dismissed
Gimenez’s complaint on res judicata grounds, citing four prior instances where state and
federal courts dismissed complaints filed by Gimenez (either on behalf of himself or his
corporation) against Morgan Stanley based on the same set of facts.1
An appeal filed by a litigant proceeding in forma pauperis is subject to dismissal at
any time if it lacks an arguable basis in law or fact. See 28 U.S.C. § 1915(e)(2)(B)(i);
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Res judicata is a proper basis for
dismissal under 28 U.S.C. § 1915(e)(2)(B). See Gleash v. Yuswak, 308 F.3d 758, 760-61
(7th Cir. 2002). The doctrine of res judicata bars a plaintiff who has received a final
judgment on the merits from relitigating the same claim against the same defendant. See
CoreStates Bank, N.A. v. Huls America, Inc., 176 F.3d 187, 194 (3d Cir. 1999); see also
1
Gimenez v. Morgan Stanley D W, No. L-9293-04 (N.J. Super. Ct. Mar. 4, 2005)
(dismissed with prejudice); Gimenez v. Morgan Stanley D.W., Civ. No. 05-cv-3633
(D.N.J. Aug. 26, 2005) (dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)); Humberto
Gimenez Corp. v. Morgan Stanley D.W., Inc., Civ. No. 05-cv-4623 (D.N.J. Nov. 14,
2005) (dismissed “with prejudice” for failure to retain counsel and properly refile
complaint within specified period of time); Gimenez v. Morgan Stanley D.W., Inc., Civ.
No. 06-cv-0752 (D.N.J. Mar. 15, 2006) (dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i)).
2
Churchill v. Star Enterprises, 183 F.3d 184, 194 (3d Cir. 1999) (res judicata precludes
successive suits against the same defendant based on same underlying events). A
dismissal that is specifically rendered “with prejudice” qualifies as an adjudication on the
merits and thus carries preclusive effect. See Gambocz v. Yelencsics, 468 F.2d 837, 840
(3d Cir. 1972). A dismissal under the in forma pauperis statute also qualifies as an
adjudication on the merits carrying preclusive effect for purposes of any future in forma
pauperis actions raising the same claim. See Cieszkowska v. Gray Line New York, 295
F.3d 204, 205-06 (2d Cir. 2002).
As explained by the District Court, Gimenez’s claims are barred on res judicata
grounds. We note that although Civ. No. 05-cv-4623 was brought by Gimenez on behalf
of his eponymous corporation, that case’s disposition precludes Gimenez from
subsequently bringing the same suit on behalf of himself. See Transamerica Occidental
Life Ins. Co. v. Aviation Office of America, Inc., 292 F.3d 384, 392 (3d Cir. 2002) (“Res
judicata acts as a bar to relitigation of an adjudicated claim between parties and those in
privity with them.”); In re Teltronics Services, Inc., 762 F.2d 185, 191 (2d Cir. 1985) (“A
judgment against a corporation bars later litigation on the same cause of action by an
officer, director, or shareholder of the corporation if the individual participated in and
effectively controlled the earlier case.”). The other two dismissals, which were entered
pursuant to a sua sponte determination of frivolousness under the in forma pauperis
3
statute, preclude Gimenez from bringing the same claim against the same defendant while
in possession of in forma pauperis status.
Based on the foregoing, we conclude that Gimenez’s appeal lacks legal merit and
we will dismiss it under 28 U.S.C. § 1915(e)(2)(B).
4