B and C.
Further, MBCC attaches a copy of a judgment issued on January 29, 2001,
from the Twenty-Second Judicial District of the Parish of St. Taminy,
State of Louisiana, in which the court found the law and the facts to be
in favor of the plaintiff, MBCC, and entered judgment in the full sum of
ten thousand nine hundred sixty-four dollars and seventy-eight cents,
plus interest from October 13, 2000 until paid, at the annual percentage
rate of 12.25%, plus a reasonable attorney's fee, plus all costs against
defendants, James H. Murungi and Asenath K. Murungi. The Court takes
judicial notice of the state and federal court judgments. See,
Then, in March 2001, the Murungis filed their second federal suit in
the Eastern District of Louisiana against MBCC, and included for the
first time HHOV and others as named defendants. Murungi v. Mercedes Benz
Credit Corp., No. 01-CV-714 (E.D.La. filed Mar. 19, 2001). On June 12,
2001, the Honorable Edith Brown Clement, Chief United States District
Judge for the Eastern District of Louisiana, filed an order granting
HHOV's and MBCC's FED. R. CIV. P. 12(b) motions to dismiss case No.
01-CV-714. Murungi v. Mercedes Benz Credit Corp., 2001 WL 649747
(E.D.La., No. 01-CV-714, Jun. 11, 2001).
In her June decision, Chief Judge Clement wrote that the purchase of
the used Mercedes took place on June 3, 1996 at Rochester, New York, from
Holtz House of Vehicles, and that in September 1999, the Murungi's moved
to Louisiana and shortly thereafter defaulted on their loan payments to
MBCC. Subsequently, MBCC filed an action in Louisiana State court to
enforce the financing contract, and while that action was pending, MBCC
filed a writ of sequestration against the Murungis' vehicle.*fn4
In July 2001, the Murungis filed a third federal lawsuit in the Eastern
District of Louisiana seeking the reopening of their two prior
unsuccessful actions. Murungi v. Mercedes Benz Credit Corp., No.
01-CV-2006 (E.D.La. filed Jul. 2, 2001). In a lengthy decision, Chief
Judge Clement found that the suit the Murungi's commenced against the
present defendants and others in the Eastern District of Louisiana was
precluded by the doctrine of res judicata. Murungi v. Mercedes Benz Credit
Corp., 2001 WL 1490991 (E.D. La., No. 01-CV-2006, Nov. 20, 2001). Chief
Judge Clement found because the Murungi's had a full opportunity to
litigate their Fair Collection Act claims against MBCC in the previous
action and their appeal from the court's judgment was dismissed as
frivolous, that the claims asserted in case No. 01-CV-2006 were barred by
res judicata. She also dismissed the action against HHOV for lack of
personal jurisdiction, since it was a New York corporation with its
principle place of business in Rochester, New York. On August 7, 2001, the
Murungis filed the instant pro se law suit here in the Western District
of New York and named MBCC and HHOV as defendants.
Asenath K. Murungi's Failure to Respond to the Motions
Federal Rule of Civil Procedure 11 requires that, "[e]very pleading,
written motion, and other paper shall be signed by
at least one attorney
of record . . ., or, if the party is not represented by an attorney,
shall be signed by the party." FED. R. CIV. P. 11(a) (emphasis added).
Mr. Murungi was unable to provide any authority to the Court for his
request to be accepted as Mrs. Murungi's representative in his and her
pro se capacities. No response to defendants' motions to dismiss has been
signed by Asenath K. Murungi. Since Asenath K. Murungi has not signed any
response to the motions, and did not appear for oral argument, the Court
grants defendants' motions to dismiss against Asenath K. Murungi.
James H. Murungi's Response to the Court's Inquiry Made During Oral
During oral argument, the Court directed Mr. Murungi to inform the
Court in writing, within a week, as to whether he desired to continue the
litigation against either MBCC or HHOV, especially in light of the
language in Chief Judge Clement's November opinion:
the Court agrees with MBCC that the Murungis'
lawsuit, which seeks damages against MBCC for
enforcing its legal right to collect a loan, has no
basis in law or fact. Since the Murungis are
proceeding pro se, the Court will not impose
sanctions for their repeated frivolous filings at
this time. However, the plaintiffs are advised that
a fourth attempt to reassert their failed claims
against MBCC, American Lenders Service Co. of New
Orleans, Daniel A. Smith, Damon Daussat, or HHOV
will be sanctioned.
James and Asenath Murungi v. Mercedes-Benz Credit Corporation, No.
01-CV-2006, 2001 WL 1490991 (E.D.La. Nov. 20, 2001).
It is also clear, as the Court explained to James Murungi during oral
argument, that the applicable statutes of limitations for the causes of
action plead in this case expired prior to commencement of the suit and,
despite Mr. Murungi's "beliefs," there is no case law or statutory
authority which supports any tolling.
Pursuant to the Court's direction, referenced above, plaintiffs
responded in writing and expressed their desire to press forward with all
their claims, particularly those brought under the Magnuson-Moss Warranty
Act. It is evident from their discussion of the inapplicability of the
statute of limitations, that they are laboring under the misapprehension
the claims under the Magnuson-Moss Warranty Act can be brought regardless
of the lapse of time. As the Court discusses below, those claims are time
Standard of Review of a FED. R. CIV. P. 12(b)(6) Motion to Dismiss
On a motion to dismiss under the Federal Rules of Civil Procedure
§ 12(b)(6), the Court must accept as true, all factual allegations in
the complaint and draw all inferences in favor of the plaintiff. Bolt
Electrical, Inc. v. City of New York, 53 F.3d 465, 468 (2d Cir. 1995).
The Court may grant a motion to dismiss only if, viewing the allegations
in the complaint in a light most favorable to plaintiffs, it appears
beyond doubt that plaintiffs could not prove a set of facts in support of
their claim which would entitle them to relief. See, Walker v. City of
New York, 974 F.2d 293, 298 (2d Cir. 1992).
Res Judicata Pertaining to MBCC's Motion
A final judgment entered on the merits of a case bars any further
claims by the same parties or those in privity with them based on the
same cause of action. This doctrine, known as res judicata, or claim
preclusion, prevents any further litigation on any grounds or defenses to
recovery that were previously available to the parties regardless of
whether they were asserted or determined in the first proceeding. See,
Brown v. Felsen, 442 U.S. 127, 132 (1979). Res judicata ensures the
finality of judgments, encourages reliance on judicial decisions and bars
vexatious litigation practices.
To determine whether a claim being asserted is the same claim which was
or could have been asserted in a prior action, the Court applies a
transactional test. Under this test, the first judgment will have a
preclusive effect where the "same transaction or connected series of
transactions" are at issue and the same evidence is needed to support the
claims. Woods v. Dunlap Tire Corp., 972 F.2d 36, 38 (2d Cir. 1999). It is
the similarity of the facts at issue in the first and second law suits
which determines the preclusive effect, not the legal theory upon which
each of the lawsuits is based. As the Second Circuit has held:
To prove the affirmative defense [of res judicata] a
party must show that (1) the previous action
involved an adjudication on the merits; (2) the
previous action involved the plaintiffs or those in
privity with them; (3) the claims asserted in the
subsequent action were, or could have been, raised
in the prior action.
Monahan v. New York City Dept. of Corrections,