                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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ALD-3                                                            NOT PRECEDENTIAL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).




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