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Hurst v. Wiegard

United States District Court, D. Delaware

June 27, 2017

JERRY A. HURST, Plaintiff,
v.
MAXWELL WIEGARD, et al., Defendants.

          MEMORANDUM

         I. INTRODUCTION

         The plaintiff, Jerry A. Hurst ("Hurst"), who proceeds pro se, filed this lawsuit on May 5, 2015, alleging violations of the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. §§ 2721 through 2725 and constitutional violations pursuant to 42 U.S.C. § 1983.[1] Hurst also raises supplemental state claims for breach of the implied covenant of good faith and fair dealing and of the defendant State Farm Mutual Automobile Insurance Company's ("State Farm") written privacy policy, civil conspiracy, intentional infliction of emotional distress, tortious interference with contractual relations, misappropriation of his name under Virginia common law, and violations of the Virginia Consumer Protection Act ("VCPA"), Va. Code Ann. §§ 59.1-196, et seq., and the Virginia Personal Information Protection Act ("VPIPA"), Va. Code Ann. §§ 59.1-442, et seq.

         Before the court are motions to dismiss filed by the defendants Nicholas Skiles ("Skiles") (D.I. 17), Colin Shalk ("Shalk") (D.I. 29), Maxwell Wiegard ("Wiegard") and Guy Harbert ("Harbert") (D.I. 37), and Marty Harbin ("Harbin") and State Farm (D.I. 40). Also before the court are Hurst's request for entry of default and motion to strike (D.I. 32, 48). For the reasons that follow, the court will grant the defendants' motions to dismiss, will deny Hurst's motions, and will order Hurst to show cause why he should not be enjoined from filing future similar cases.

         II. BACKGROUND

         Hurst and his litigation have come full circle. As set forth in this court's February 9, 2012 memorandum and order in Hurst v. State Farm Mut. Auto. Ins. Co., Civ. No. 10-1001-GMS, 2012 WL 426018, at *1 (D. Del. Feb. 9, 2012), aff'd, No. 12-1654 (3d Cir. Oct. 24, 2012) ("Hurst /"), this action stems from State Farm's denial of an insurance claim made by Hurst for the April 3, 2001 theft of his customized van and allegations that Hurst received a November 24, 2008 letter from State Farm, "confessing" that State Farm, through its outside agents and legal counsel, disclosed Hurst's "personal information, " including Hurst's social security number, driver identification number, address, and other information that identifies an individual, all in violation of the DPPA. Hurst I, 2012 WL 426018, at *2. The court's February 9, 2012 memorandum sets forth the background of Hurst's claim, and it is incorporated herein. See Hurst I, 2012 WL 426018, at *2-3.

         Hurst I alleged: (1) violations of the DPPA; (2) violations of 42 U.S.C. § 1983 by reason of DPPA violations; (3) violations of privacy rights under the Fourth Amendment of the United States Constitution by reason of DPPA violations; (4) constitutional violations of the right to privacy by publicizing private facts and by false light; (5) conspiracy; (6) retaliation; (7) fraud, fraudulent concealment, and fraud on the court; (8) abuse of process; (9) intentional infliction of emotional distress; (10) tortious interference with contractual relations; (11) tortious interference with business relations; (12) inadequate hiring, training, supervision, and discipline; (13) breach of the covenant of good faith and fair dealing and privacy policy; (14) constitutional claims; and (15) State law claims. Hurst I was filed against State Farm, Harbin, Wiegard, Harbert, and Shalk, all of whom are named defendants in this action. Other named defendants were City of Rehoboth Beach ("Rehoboth Beach"), Walter Speakman ("Speakman"), Keith Banks ("Banks"), Kevin Connors ("Connors"), United National Insurance Company ("United National Insurance"), and Harleysville Mutual Insurance Company ("Harleysville Mutual Insurance"). Skiles, a defendant in the instant action, is an attorney who represented Rehoboth Beach, Speakman, and Harleysville Mutual Insurance in Hurst I.

         In Hurst I, this court took judicial notice that Hurst had filed four prior lawsuits regarding the theft of the van, including: (1) Hurst v. State Farm Mut. Auto. Ins. Co., Civ. No. 04-1350-TSE-BRP (E.D. Va.), a RICO action against State Farm, Harbin, David L. Jones ("Jones"), Marshall Major ("Major"), and John D. McGavin ("McGavin"), dismissed on November 15, 2004; (2) Hurst v. State Farm Mut. Auto. Ins. Co., Civ. No. 05-1279-GBL-TRJ (E.D. Va.), filed November 7, 2005, alleging that State Farm breached the terms of an automobile insurance policy when it denied Hurst's claim for the 2001 theft of his van. Hurst attached as an exhibit to the complaint a non-redacted affidavit of vehicle theft. The complaint also alleged fraud, conspiracy, and intentional infliction of emotional distress. The matter was transferred from the Eastern District of Virginia to the Western District of Virginia on December 21, 2005, Hurst v. State Farm Mut. Auto. Ins., Civ. No, 05-776-GEC (W.D. Va.), and summary judgment was granted in favor of State Farm, affirmed on appeal, on April 29, 2009; (3) Hurst v. State Farm Mut. Auto. Ins. Co., Civ. No. 08-2907-WMN (D. Md.), a RICO action against State Farm, Harbin, Jones, Major, and MeGavin, dismissed on November 19, 2008, as barred by res judicata, affirmed on appeal on April 29, 2009; and (4) Hurst v. City of Salisbury, Civ. No. 10-2516-WDG (D. Md.), alleging violations under the federal criminal code, as well as breach of contract, tortious breach of contract, bad faith, and intentional infliction of emotional distress, against the City of Salisbury ("Salisbury"), Chief Webster ("Webster"), Captain Wiley ("Wiley"), Officer Smullen ("Smullen"), State Farm, Major, Harbin, MeGavin, Wiegard, and Harbert, dismissed as barred by res judicata and, in the alternative, as time-barred, affirmed on appeal, on May 31, 2011.

         After considering motions to dismiss filed in Hurst I, this court found that: (1)(a) Hurst was barred under the doctrines of claim and issue preclusion to relitigate claims relating to the actions of State Farm, Harbin, and Wiegard, and Harbert, individuals who were defendants in prior federal litigation Hurst filed against them, and (b) to the extent that Hurst sought to raise additional claims that could have been raised in his prior actions, the claims were also barred: (2) the 42 U.S.C. § 1983 claims and Delaware conspiracy and fraud claims were time-barred; (3) the defendants were protected under the absolute litigation privilege; (4) a malicious defense claim is not cognizable under Delaware law; (5) the allegations failed to state claims upon which relief may be granted under the DPPA, 42 U.S.C. § 1983, and the State claims of false light invasion of privacy, conspiracy, fraud, fraudulent concealment, and fraud on the court, abuse of process, intentional infliction of emotional distress, tortious interference with contractual relations, tortious interference with business relations, breach of the covenant of good faith and fair dealing, and the remaining "catch-all claims." See Hurst I, 2012 WL 426018, at *7-18. The court dismissed the complaint and found futility in amendment. Id. at * 18.

         Undeterred by the ruling in Hurst I (affirmed on appeal), Hurst commenced two more actions raising the same or similar claims against the same defendants, including: (1) Hurst v. Harbert, Civ. No. 13-558-GBL-JFA (E.D. Va.) filed May 3, 2013, raising DPPA, 42 U.S.C. § 1983 claims, and supplemental state claims including breach of the implied covenant of good faith and fair dealing, misappropriation of Hurst's name, violation of VPIPA, civil conspiracy, intentional infliction of emotional distress, and tortious interference with contractual relations against Harbert, Wiegard, Harbin, Shalk, Skiles, State Farm, and Doe defendants.[2] Upon screening, the district court dismissed the federal claims as frivolous and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § l9l5(e)(2)(B)(i) and (ii) and declined to exercise supplemental jurisdiction over the state law claims.[3] See Hurst v. Harbert, 2013 WL 12107769 (E.D. Va. Sept. 30, 2013), appeal dismissed, 577 F.App'x 145 (4th Cir. June 20, 2014) ("Hurst IF); and (2) Hurst v. Harbert, Civ. No.l5-033-GEC (W.D. Va.) filed May 6, 2015, raising the same claims against the same defendants as in Hurst II, [4] Upon screening, the district court dismissed the federal claims for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and declined to exercise supplemental jurisdiction over the state law claims.[5] See Hurst v. Harhert, 2015 WL 3505557 (W.D. Va. June 3, 2015), aff'd, 630 F, App'x 209 (4th Cir. Jan. 19, 2016) ("Hurst fir).

         As discussed, the instant complaint contains virtually identical claims as those raised in Hurst I, Hurst II, and Hurst III. As in Hurst II and Hurst III, Hurst now alleges that, on May 6, 2011, during the course of the Hurst I litigation, the defendants filed unredacted copies of the same personal information previously disclosed by the defendants and that there were numerous out-of-court disclosures of his personal information (none of which are identified). (D.I. 2 at ¶¶ 4, 11.) Skiles moves for dismissal on the grounds of res judicata and for failure to state claims upon which relief may be granted. (D.I. 17, 18.) Shalk joins Skiles' motion to dismiss and seeks dismissal on the basis of res judicata, collateral estoppel, and for failure to state claims upon which relief may be granted. (D.I. 29, 30.) Wiegard and Harbert joint Skiles' and Shalk's motions to dismiss and move for dismissal on the grounds of res judicata, collateral estoppel, and as time-barred. (D.I. 37, 38.) State Farm and Harbin move for dismissal on the grounds of res judicata, as time-barred, and for failure to state claims upon which relief may be granted. (D.I. 40, 41.) All the defendants ask the court to enjoin Hurst from filing serial lawsuits. Hurst opposes the motions. He requests entry of default as to Harbert, Shalk, and Wiegard, and moves to strike Skiles' sur-reply brief.[6] (D.I. 32, 48.)

         III. MOTIONS TO DISMISS

         A. Standard of Review

         Because Hurst proceeds pro se, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers."[7] Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted). The defendants move for dismissal pursuant to Rule 12(b)(6).

         Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted).

         A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell All Corp. v. Twombly, 550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, __U.S.__, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See Id. at 346.

         Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must plead to state a claim; (2) identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) when there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. See Connelly v. Lane Const. Corp.,809 F.3d 780, 787 (3d Cir. 2016). Deciding whether a claim is plausible ...


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