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December 27, 2001


The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge.



Plaintiffs pro se ("plaintiffs"), residents of the State of Louisiana, filed a complaint in this Court on August 7, 2001, alleging causes of action under federal and New York State law concerning the purchase of a used 1989 Mercedes Benz from defendant Holtz House of Vehicles, Inc.*fn1 ("HHOV"). Financing of the car was ultimately assumed by defendant Mercedes Benz Credit Corporation ("MBCC"). By motion filed September 4, 2001, MBCC sought dismissal of the complaint pursuant to FED. R. CIV. P. 12(b)(6), failure to state a claim upon which relief could be granted. By application dated September 10, 2001, HHOV sought similar relief. Plaintiffs responded on September 21, 2001, with what they entitled a "Reconventional*fn2 Demand of Plaintiff," and a motion for leave to amend the original complaint to include this demand. This document, the original complaint, and plaintiffs' filing, "Disposition of the Case," are the only pleadings which have been signed and filed by both Asenath and James Murungi. By an order entered October 5, 2001, the Court denied without prejudice plaintiffs' motion to amend and requested clarification of the intent of his filing. On October 19, 2001, plaintiff James H. Murungi filed a clarification, which stated that plaintiff's "reconventional demand against MBCC and HHOV is an additional response to MBCC's and HHOV's motions to dismiss."

The case is now before this Court on defendants' motions to dismiss made pursuant to FED. R. CIV. P. 12(b)(6). For the reasons stated below, the Court grants the applications of both defendants and dismisses the action in its entirety.


As far as the Court can ascertain from the perplexing pro se complaint in this case, which must be construed liberally, see Cameron v. Fogarty, 705 F.2d 676, 678 (2d Cir. 1983), plaintiffs allege causes of action pursuant to 15 U.S. Code § 1601, et seq., the Truth in Lending Act; 15 U.S. Code § 2301, et seq., the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (Lemon Law); the New York Uniform Commercial Code; and the New York Lemon Law.

During oral argument on December 6, 2001, the Court noted the absence of Asenath K. Murungi, who is named as a plaintiff in the caption, and learned from plaintiff James H. Murungi that she is his wife, and that he was operating under the assumption that he could represent her. Upon further questioning by the Court, Mr. Murungi acknowledged that he was not an attorney at law, and therefore the Court indicated that it would not permit him, as a pro se litigant, to represent his wife. The Court explained that to do so, in the Court's opinion, would be to sanction the unauthorized practice of law.

The complaint in this case fails to allege exactly when plaintiffs purchased the used 1989 Mercedes Benz 300SE in question from HHOV and when the financing was sold to MBCC. Plaintiffs contend that shortly after taking delivery of the car, it began having mechanical difficulties. They allege seventeen separate visits to HHOV for engine malfunction repairs. In addition, they allege they took the car to Benson Mercedes Motor Company of New Orleans, Louisiana (not a party to this action) for major engine repairs in March of 2000 and again in May of 2000. Finally, they maintain that the vehicle is not functioning and needs a new water pump with an estimated cost of one thousand dollars.

Plaintiffs sum up their experiences with this car by stating, "this is a real lemon car, from every aspect."

Plaintiffs seek damages in the amount of not less than seventy-five thousand dollars for each of their three counts and punitive damages of not less than fifty thousand dollars, again, for each of their three counts. They also seek attorneys fees and the costs of the action. Finally, they allege in a footnote in the complaint, "this civil action had previously been filed in the U.S.D.C. for the Eastern District of Louisiana but was dismissed under Rule 12(b)."

MBCC raises the defense of res judicata. MBCC alleges four previous law suits involving the Murungis and the used Mercedes in the courts in Louisiana over the previous two years and lists them in an affidavit by counsel. See, Affidavit in Support of Motion to Dismiss Plaintiffs' Complaint [# 4] at 2.

As detailed in the affidavit, MBCC first filed a petition for sequestration of the Mercedes on June 9, 2000, in the Twenty-Second Judicial District Court in the State of Louisiana. Petition for Sequestration, Mercedes Benz Credit Corp. v. Murungi, No. 2000-12631-A (Dist. Ct., La. Jun. 9, 2000) (attached to Maider aff. at Exhibit B). The balance due in the petition is alleged to be ten thousand three hundred seventy-eight dollars and ninety-one cents. MBCC has also attached a copy of the Murungis' answer to that petition in which they argue that they are residents of the Parish of St. Taminy, State of Louisiana, and in which they raise as a first affirmative defense, a claim that they were defrauded by MBCC and in which they refer to a civil action based on fraud in the United States District Court for the Eastern District of Louisiana, then pending.*fn3 See, Maider affidavit at Exhibits 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, FED.R.EVID. 201.

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 ...

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