United States District Court, D. Connecticut
YOLANDA B. ACKER, Plaintiff,
v.
STEPHEN KING, Defendant.
MEMORANDUM OF DECISION RE: DEFENDANT'S MOTION TO
DISMISS (ECF NO. 13)
KARI
A. DOOLEY, UNITED STATES DISTRICT JUDGE
Preliminary
Statement of the Case
The
Plaintiff, Yolanda Acker, proceeding pro se, brings
this action against the Defendant, Stephen King, alleging
that the Defendant engaged in copyright infringement in the
writing and publishing of Dr. Sleep. The action was
brought in the Superior Court for the State of Connecticut
but removed to this Court on November 9, 2018. The Plaintiff
also asserted these claims in a matter previously removed to
this Court. See Acker v. King, Civ. No. 13-cv-1717
(AWT) (“King I” or “the prior
action”). Judge Thompson dismissed the Plaintiff's
prior action on September 24, 2015, see Acker v.
King, 46 F.Supp.3d 168 (D. Conn. 2014), appeal
dismissed, 14-3908 (2d Cir. Feb. 26, 2015). The
Defendant filed the instant motion to dismiss (or in the
alternative, for summary judgment), contending, principally,
that this action is barred by the doctrine of res
judicata. (ECF No. 13.) The Plaintiff did not submit an
opposition to the motion, but rather filed a “Motion to
Request Jury Trial, ” in which she states that her
“previous case five years ago was ruled
erroneously” and that she “would like a fair
trial to prove my evidence as a Genuine Issue of Material
Fact.” (ECF No. 18, ¶ 1.) For the following
reasons, the Defendant's Motion to Dismiss is
GRANTED.[1]
Standard
of Review
When
considering a motion to dismiss under Rule 12(b)(6), the
Court “draw[s] all reasonable inferences in
Plaintiff's favor, assume[s] all well-pleaded factual
allegations to be true, and determine[s] whether they
plausibly give rise to an entitlement to relief.”
Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d
Cir. 2011) (internal quotation marks omitted); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” (internal
quotation marks omitted)). A plaintiff is entitled to relief
if she alleges “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also In re
Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.
2007) (“While Twombly does not require
heightened fact pleading of specifics, it does require enough
facts to nudge plaintiff's claims across the line from
conceivable to plausible.” (internal quotation marks
omitted) (citing Twombly, 550 U.S. at 570)).
“[C]ourts must construe pro se pleadings
broadly, and interpret them to raise the strongest arguments
that they suggest.” Cruz v. Gomez, 202 F.3d
593, 597 (2d Cir. 2000) (internal quotation marks omitted)
(citing Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996)). That said, the Court is not bound to accept
“conclusory allegations or legal conclusions
masquerading as factual conclusions.” Rolon v.
Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (internal
quotation marks omitted).
A
defendant may raise a res judicata defense under Rule
12(b)(6) when the motion is limited to consideration of the
plaintiff's complaint, documents attached or incorporated
therein, and “materials appropriate for judicial
notice.” TechnoMarine SA v. Giftports, Inc.,
758 F.3d 493, 498 (2d Cir. 2014) (citing Day v.
Moscow, 955 F.2d 807, 811 (2d Cir. 1992)); see also
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002) (noting that a court may consider a document
“incorporated by reference, ” or when a complaint
“relies heavily upon its terms and effects, ”
which renders the document “integral to the
complaint”) (citations omitted); Pani v. Empire
Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998)
(noting that a court may rely on “matters of public
record” in deciding a motion to dismiss under Rule
12(b)(6)). When the Court takes judicial notice of such
documents, it does so “not for the truth of the matters
asserted in the other litigation, but rather to establish the
fact of such litigation and related filings.”
Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d
Cir. 1991). Therefore, the Court takes judicial notice of the
entire file in Acker v. King, Civ. No. 13-cv-1717
(AWT).
Factual
Allegations
In the
present action, the Plaintiff alleges that the Defendant
“willfully stole” pieces of her story from a copy
of a manuscript which she claims to have sent him in 2012
seeking his critique. She asserts that he used her name and
her character in his book Dr. Sleep. She further
alleges that the Defendant “addressed to the court in a
previous claim that he did not know me, if so then it must be
a mere coincidence that my name was used in his Book
‘Dr. Sleep' (page 514). As well as one of my
characters from my manuscript named ‘Jessica' on
page 205.” She asserts that she believes Judge Thompson
wrongly decided the prior action and that all of her evidence
was ignored.
Discussion
Even
though the doctrine of res judicata is oft raised as
an affirmative defense, it can be asserted in a Rule 12(b)(6)
motion if it is clear from the face of the complaint that the
Plaintiff's claims are barred by the doctrine. See
Moscow, 955 F.2d at 811. The doctrine of res
judicata “applies to repetitious suits involving
the same cause of action.” Commissioner v.
Sunnen, 333 U.S. 591, (1948). “It rests upon
considerations of economy of judicial time and public policy
favoring the establishment of certainty in legal
relations.” Id. Under the doctrine of res
judicata, a “final judgment on the merits of an
action precludes the parties or their privies from
relitigating issues that were or could have been raised in
that action, ” Federated Dep't Stores, Inc. v.
Moitie, 452 U.S. 394, 398, (1981), and constitutes an
absolute bar “not only as to every matter which was
offered and received to sustain or defeat the claim or
demand, but as to any other admissible matter which might
have been offered for that purpose, ” SEC v. First
Jersey Secs., Inc., 101 F.3d 1450, 1463 (2d Cir. 1996)
(quoting Nevada v. United States, 463 U.S. 110,
129-30 (1983)). See also Liona Corp. v. PCH Assocs.,
949 F.2d 585, 594 (2d Cir. 1991) (“Res judicata, or
claim preclusion, precludes a litigant from advancing in a
new action all claims or defenses that were or could have
been raised in a prior proceeding in which the same parties
or their privies were involved and that resulted in a
judgment on the merits.”); Clarke v. Frank,
960 F.2d 1146, 1150 (2d Cir. 1992) (same); N.L.R.B. v.
United Technologies Corp., 706 F.2d 1254, 1259 (2d Cir.
1983) (same).
A party
asserting the doctrine of res judicata must
establish that “(1) the previous action involved an
adjudication on the merits; (2) the previous action involved
the plaintiffs or those in privity with them; [and] (3) the
claims asserted in the subsequent action were, or could have
been, raised in the prior action.” Monahan v.
N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir.
2000). All conditions must be met for claim preclusion to
apply.
The
first question is whether Judge Thompson's decision
dismissing the prior action was a final adjudication on the
merits. Generally, “dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6) is a
‘judgment on the merits.'” Moitie,
452 U.S. at 399 n.3 (citing Angel v. Bullington, 330
U.S. 183, 190 (1947); Bell v. Hood, 327 U.S. 678,
(1946)). In the prior action, Judge Thompson granted the
Defendant's motion to dismiss but not before reading the
Plaintiff's manuscript as well as Dr. Sleep.
Judge Thompson then undertook a searching analysis of both
works and concluded:
[T]he similarities between Haunting and Doctor
Sleep, i.e. a young girl with psychic abilities who uses
her abilities to save people in a New England town, are all
unprotectible ideas. Even if they are protectible, it is
apparent that the defendant's particular expression of
these ideas in Doctor Sleep is not at all similar,
much less substantially similar, to the plaintiff's
expression of them in Haunting. Therefore, the
plaintiff's Amended Complaint, together with the works
incorporated therein, do not plausibly give rise to an
entitlement to relief, so the motion to dismiss the
plaintiff's copyright infringement claim is being
granted.
King I, 46 F.Supp.3d at 175-76. The first requisite
of a res judicata defense is therefore ...