Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 1 of 15
`
`IN THE DISTRICT COURT OF THE UNITED STATES
`FOR THE MIDDLE DISTRICT OF ALABAMA
`SOUTHERN DIVISION
`
`Case No. 1:12-cv-850-MEF-TFM
`[wo]
`
`))
`
`))
`
`)
`)
`)
`
`))
`
`)
`
`JANIE P. KINSEY,
`
`Plaintiff,
`
`v.
`
`ASSURANCE AMERICA
`INSURANCE COMPANY,
`
`Defendants.
`
`REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
`
`I. INTRODUCTION
`
`Pursuant to 28 U.S.C. § 636(b)(1) this case was referred to the undersigned United
`
`States Magistrate Judge for review and submission of a report with recommended findings
`
`of fact and conclusions of law (Doc. 6, filed October 22, 2012). Pending before the Court
`
`is Defendant's Motion for Summary Judgment (Doc. 4, filed October 5, 2012). The Court has
`
`carefully reviewed the Motion for Summary Judgment, the brief filed in support of and in
`
`opposition to the motion, and the supporting and opposing evidentiary materials. For good
`
`cause, it is the RECOMMENDATION of the Magistrate Judge that the Defendant’s Motion
`
`be GRANTED.
`
`II. FACTUAL BACKGROUND
`
`On October 26, 2009, Plaintiff Janie P. Kinsey (“Kinsey” or “Plaintiff”) was involved
`
`in an automobile accident in Dothan, Alabama with Xavier Pierre Dunlap (“Dunlap”). See
`
`Page 1 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 2 of 15
`
`Doc. 4 at 1. Kinsey’s vehicle was deemed a total loss and Kinsey suffered some personal
`
`injuries. See Doc 1-1 at 1. At the time of the accident, Dunlap carried an automobile liability
`
`insurance policy with Defendant Assurance America Insurance Company (“AAIC” or
`
`“Defendant”). See Doc. 4 at 1-2. The parties attempted to resolve the issue, but were not
`
`successful. See Doc. 4 at 2. As a result of the inability to reach a settlement, on March 9,
`
`2011, Kinsey filed a pro se lawsuit against AAIC in this Court (“Kinsey I”). See Doc. 4-2
`
`at 2-4; see also Kinsey v. Assurance Am. Ins. Co., 1:11-CV-166-MEF, 2011 WL 1344180
`
`(M.D. Ala. Apr. 8, 2011) report and recommendation adopted, 1:11-CV-166-MEF, 2011 WL
`
`1545969 (M.D. Ala. Apr. 25, 2011). The Court held that “Alabama law is clear that before
`
`Kinsey can bring suit against Assurance, she must first obtain a judgment against Assurance's
`
`insured motorist,” and “because Kinsey has not yet obtained a judgment against Assurance
`
`America's insured, the claim she presents against Assurance is ‘without arguable merit in fact
`
`or law,’ and she has failed to state a claim for which relief may be granted. Consequently,
`
`this action is due to be dismissed as frivolous.” Id. at *1-*2.
`
`Despite this Court’s ruling, on September 25, 2012, Kinsey filed another complaint
`
`against AAIC in the Circuit Court of Houston County in Dothan, Alabama. See Doc. 1-2.
`
`On October 2, 2012, AAIC filed a Notice of Removal with the Circuit Court of Houston
`
`County and with this Court (“Kinsey II”). See Docs. 1-3 and 1-4.
`
`III. JURISDICTION
`
`The district court has diversity jurisdiction over the claims in this action pursuant to
`
`Page 2 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 3 of 15
`
`28 U.S.C. § 1332. The plaintiff is a resident and citizen of Headland, Houston County,
`
`Alabama, and the defendant is a South Carolina corporation with its principal place of
`
`business in Atlanta, Georgia. See Doc. 1 at 1. The plaintiff’s complaint alleges that she is
`
`entitled to damages in the amount of $200,000.00; thus the amount in controversy exceeds
`
`$75,000.00. See Doc. 1-2 at 1. The parties do not contest personal jurisdiction or venue, and
`
`there are adequate allegations to support both.
`
`IV. SUMMARY JUDGMENT STANDARD
`
`All litigants, pro se or not, must comply with the Federal Rules of Civil Procedure.
`
`Although the court is required to liberally construe a pro se litigant’s pleadings, the court
`
`does not have “license to serve as de facto counsel for a party. . .or to rewrite an otherwise
`
`deficient pleading in order to sustain an action.” GJR Invs., Inc. v. Cnty. of Escambia, Fla.,
`
`132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted), overruled on other grounds by
`
`Randall v. Scott, 610 F.3d 701 (11th Cir. 2010) ; see also Giles v. Wal-Mart Distrib. Ctr.,
`1
`
`359 Fed. Appx. 91, 93 (11th Cir. 2009) (internal citations and quotations omitted) (“Although
`
`pro se pleadings are held to a less strict standard than pleadings filed by lawyers and thus are
`
`construed liberally, this liberal construction does not give a court license to serve as de facto
`
` The Eleventh Circuit overruled its prior holdings with regards to the heightened pleading
`1
`standard for § 1983 claims that were asserted against government officials in their individual capacity.
`The Eleventh Circuit subsequently held that “[p]leadings for § 1983 cases involving defendants who are
`able to assert qualified immunity as a defense shall now be held to comply with the standards described
`in Iqbal.” Randall, 610 F.3d at 709 (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed.
`2d 868 (2009)).
`
`Page 3 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 4 of 15
`
`counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an
`
`action.”).
`
`A party in a lawsuit may move a court to enter summary judgment before trial. FED.
`
`R. CIV. P. 56(a)-(b). Summary judgment is appropriate when the moving party establishes
`
`that there is no genuine dispute as to any material fact and the moving party is entitled to
`
`judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
`2
`
`322-24, 106 S.Ct 2548, 2552-53, 91 L.Ed.2d 265 (1986); Moore ex rel. Moore v. Reese, 637
`
`F.3d 1220, 1231-32 (11th Cir. 2011). “[T]he substantive law will identify which facts are
`
`material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
`
`L.Ed.2d 202 (1986); see also Ritchey v. S. Nuclear Operating Co., Inc., 2011 WL 1490358
`
`(11th Cir. 2011) (unpublished opinion quoting Anderson). At the summary judgment
`
`juncture, the court does not “weigh the evidence and determine the truth of the matter,” but
`
`solely “determine[s] whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249,
`
`106 S.Ct. at 2511. Only disputes about the material facts will preclude the granting of
`
`summary judgment. Id.
`
`The movant bears the initial burden of proof. Celotex, 477 U.S. at 323, 106 S.Ct. at
`
`2
`Effective December 1, 2010 Rule 56 was “revised to improve the procedures for
`presenting and deciding summary-judgment motions.” FED. R. CIV. P. 56 Advisory Committee Notes.
`Under this revision, “[s]ubdivision (a) carries forward the summary-judgment standard expressed in
`former subdivision (c), changing only one word-genuine ‘issue’ becomes genuine ‘dispute.’ ‘Dispute’
`better reflects the focus of a summary-judgment determination.” Id. “‘Shall’ is also restored to express
`the direction to grant summary judgment.” Id. The Advisory Committee was careful to note that the
`changes “will not affect the continuing development of the decisional law construing and applying these
`phrases.” Id. Thus, although Rule 56 underwent stylistic changes, its substance remains the same and,
`therefore, all cases citing the prior versions of the rule remain equally applicable to the current rule. Id.
`
`Page 4 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 5 of 15
`
`2552. A party must support its assertion that there is no genuine issue of material fact by
`
`“citing to particular parts of materials in the record, including depositions, documents,
`
`electronically stored information, affidavits or declarations, stipulations . . . admissions,
`
`interrogatory answers, or other materials” or by “showing that the materials cited do not
`
`establish the absence or presence of a genuine dispute, or that an adverse party cannot
`
`produce admissible evidence to support the fact.” FED. R. CIV. P. 56(c)(1). The admissibility
`
`of evidence is subject to the same standards and rules that govern admissibility of evidence
`
`at trial. Clemons v. Dougherty Cnty., Ga., 684 F.2d 1365, 1369 n.5 (11th Cir. 1982) (citing
`
`Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir. 1980)).
`
`Once the movant meets its burden under Rule 56, the non-movant must go beyond the
`
`pleadings and designate specific facts showing there is a genuine issue for trial. Matsushita
`
`Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56,
`
`89 L.Ed.2d 538 (1986). A genuine issue of material fact exists when “the evidence is such
`
`that a reasonable jury could return a verdict for the nonmoving party.” Moore, 637 F.3d at
`
`1232 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. at 2510). The court must view the facts
`
`and draw all reasonable inference in favor of the nonmoving party. Id. (citing Rosario v. Am.
`
`Corrective Counseling Servs., Inc., 506 F.3d 1039, 1043 (11th Cir. 2007)); Greenberg v.
`
`BellSouth Telecomms., Inc., 498 F.3d 1258, 1265 (11th Cir. 2007) (“We view the evidence
`
`and all factual inferences therefrom in the light most favorable to the party opposing the
`
`motion.”). However, to avoid summary judgment, the nonmoving party “must do more than
`
`Page 5 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 6 of 15
`
`simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475
`
`U.S. at 586, 106 S.Ct. at 1356 (citations omitted). Conclusory assertions, unsupported by
`
`specific facts, presented in affidavits opposing the motion for summary judgment are
`
`likewise insufficient to defeat a proper motion for summary judgment. Lejaun v. Nat’l
`
`Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990).
`
`“Speculation does not create a genuine issue of fact.” Cordoba v. Dillard’s, Inc., 419 F.3d
`
`1169, 1181 (11th Cir. 2005) (citation omitted) (emphasis in original). If the evidence is
`
`merely colorable or is not significantly probative, summary judgment may be granted. See
`
`Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citations omitted). In short, summary
`
`judgment is proper after adequate time for discovery and upon motion against a party who
`
`fails to make a showing sufficient to establish the existence of an element essential to that
`
`party’s case. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
`
`V. DISCUSSION AND ANALYSIS
`
`A.
`
`Res Judicata
`
`AAIC asserts Kinsey’s claims are barred by res judicata. See Doc. 4 at 2. Res
`
`judicata bars the filing of claims which were raised or could have been raised in an earlier
`
`proceeding. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999) (citing
`
`Citibank, N.A. v. Data Lease Financial Corp., 904 F.2d 1498, 1501 (11th Cir. 1990)). “Our
`
`res judicata analysis has always required a consideration of the facts and legal theories of two
`
`causes of action as well as the rights and duties involved in each case.” Draper v. Atlanta
`
`Page 6 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 7 of 15
`
`Indep. Sch. Sys., 377 Fed. Appx.937, 940 (11th Cir. 2010) certiorari denied, 131 S.Ct. 342,
`
`178 L.Ed. 22 223 (Oct. 4, 2010) (citing Manning v. City of Auburn, 953 F.2d 1355, 1359
`
`(11th Cir. 1992). “We have consistently concluded that when the substance and facts of each
`
`action are the same, res judicata bars the second suit.” Id. The Eleventh Circuit summarized
`
`the doctrine of res judicata as follows:
`
`Res judicata or claim preclusion refers to the preclusive effect of a judgment
`in foreclosing relitigation of matters that were litigated or could have been
`litigated in an earlier suit. ... In order for the doctrine of res judicata to bar a
`subsequent suit, four elements must be present: (1) there must be a final
`judgment on the merits; (2) the decision must be rendered by a court of
`competent jurisdiction; (3) the parties, or those in privity with them, must be
`identical in both suits; and (4) the same cause of action must be involved in
`both cases.
`
`I.A. Durbin, Inc. v. Jefferson National Bank, 793 F.2d 1541, 1549 (11th Cir. 1986) (internal
`
`citations omitted); see also Ragsdale, 193 F.3d at 1238 (stating four elements). For a claim
`
`to be barred by res judicata (claim preclusion) it must meet all four of these elements.
`
`The general rule is that a federal court will apply the law of the state in which it sits
`
`on the doctrine of res judicata. Wesch v. Folsom, 6 F. 3d 1465 (11th Cir. 1993); but see,
`
`Diaz v. Moore, 861 F.Supp. 1041, 1046, fn 16 (N.D. Fla.1994) (recognizing that some courts
`
`have called this rule into question, where, as in the instant case, a federal court is
`
`“considering the preclusive effect of a prior federal court judgment”) (emphasis in original).
`
`Federal common law and Alabama common law are consistent as to the law of res judicata
`
`and the court will rely on both state and federal cases in this recommendation. The court now
`
`turns its attention to how the elements of res judicata apply in the instant action.
`
`Page 7 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 8 of 15
`
`i.
`
`Court of Competent Jurisdiction
`
`The United States District Court has jurisdiction over Kinsey I and II under 28 U.S.C.
`
`§ 1332 (diversity jurisdiction). See Kinsey, 1:11-CV-166-MEF, 2011 WL 1344180, *1.
`
`ii.
`
`Identical Parties
`
`Parties are “identical” for the purposes of res judicata when they are the same or in
`
`privity with one another. NAACP v. Hunt, 891 F.2d 1555, 1561 (11th Cir. 1990). In both
`
`Kinsey I and II, the sole named defendant is AAIC and the sole named plaintiff is Kinsey.
`
`See Kinsey, 1:11-CV-166-MEF, 2011 WL 1344180. AAIC and Kinsey are thus identical
`
`parties.
`
`iii.
`
`Same Cause of Action
`
`In Manning v. City of Auburn, the Court summarized the law regarding when a cause
`
`of action is the same for purposes of res judicata as follows:
`
`In this circuit, the determination of whether the causes of action in two
`proceedings are the same is governed by whether the primary right and duty
`are the same. Hunt, 891 F.2d at 1561 (quoting Kemp v. Birmingham News
`Co., 608 F.2d 1049, 1052 (5th Cir. 1979)); I.A. Durbin, Inc. v. Jefferson Nat'l
`Bank, 793 F.2d 1541, 1549 (11th Cir. 1986). The test is one of substance, not
`form. I.A. Durbin, 793 F.2d at 1549. Res judicata applies “not only to the
`precise legal theory presented in the previous litigation, but to all legal theories
`and claims arising out of the same ‘operative nucleus of fact.’” Hunt, 891 F.2d
`at 1561 (despite variations in legal theories used and remedies sought, second
`suit barred because wrongful act in both cases was flying Confederate flag
`atop state capitol) (quoting Olmstead v. Amoco Oil Co., 725 F.2d 627, 632
`(11th Cir. 1984)); Jaffree v. Wallace, 837 F.2d 1461, 1468 (11th Cir. 1988)
`(second suit barred because “[b]oth cases raised first amendment (free exercise
`and establishment clause) challenges to use of textbooks and teachings on
`various subjects”); Nilsen v. City of Moss Point, 701 F.2d 556, 560 (5th Cir.
`1983) (section 1983 action against city that refused to hire plaintiff as
`
`Page 8 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 9 of 15
`
`firefighter due to her sex precluded by earlier Title VII action on same facts).
`
`953 F.2d 1355, 1358-59 (11th Cir. 1992).
`
`In Kinsey I, Kinsey asserted that due to an October 26, 2010 automobile accident in
`
`Houston County, she suffered a personal injury requiring transportation to Flowers Hospital.
`
`See Kinsey, 1:11-CV-166-MEF, Compl., Doc. 1 at 2. The identical issue was presented in
`
`the case at bar. See Doc. 1-2 at 1.
`3
`
`iv.
`
`Final judgment
`
`On April 25, 2011, Judge Mark E. Fuller, District Judge of the United States District
`
`Court for the Middle District of Alabama entered an order in Kinsey I adopting the magistrate
`
`judge’s recommendation that the case be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)
`
`and (ii). See Kinsey, 1:11-CV-166-MEF, Orders, Docs. 9, 11. The Court also issued a “Final
`
`Judgment” in favor of the defendant and against the plaintiff and dismissed the action. Id.,
`
`Final Judgment, Doc. 12. The Court specifically stated that “[t]he clerk of the court is
`
`directed to enter this document on the civil docket as a final judgment pursuant to Rule 58
`
`of the Federal Rules of Civil Procedure.” Id. Thus, it is clear to this Court that there was a
`
`“final judgment” entered in Kinsey I dismissing Kinsey’s case as frivolous.
`
`Kinsey argues that she has several cases in this Court and that they have all been
`
`appealed to the Eleventh Circuit, who has overturned, vacated, set aside, and voided all
`
`previous judgments of the district court; therefore, there is no final judgment. See Doc. 10
`
` Although Kinsey asserts in this case that the accident occurred on October 26, 2009, it is clear
`3
`to the Court that it is the same incident.
`
`Page 9 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 10 of 15
`
`at 1. Kinsey did, in fact, appeal Kinsey I. See Kinsey, 1:11-CV-166-MEF, Notice of Appeal,
`
`Docs. 13. However, on July 8, 2011 the Eleventh Circuit dismissed Kinsey’s appeal as
`
`frivolous. Id., Order, Doc. 17 at 3. Upon Kinsey’s motion to reinstate, on January 19, 2012,
`
`the Eleventh Circuit again reiterated that Kinsey’s appeal was frivolous and that nothing in
`
`her brief “constitutes a colorable argument of arguable merit regarding the district court’s
`
`dismissal order.” See Doc 4-4 at 2.
`
`Despite repeated explanations by this Court of the Eleventh Circuit’s opinions in
`
`Kinsey’s cases, both verbally and in written opinions, she continues to make the same
`
`frivolous argument misrepresenting the Eleventh Circuit’s opinions. On October 5, 2010,
`
`Chief District Judge William K. Watkins convened a hearing “to explain to the Plaintiffs that
`
`not only did they lose at the district court level, but they also lost on appeal.” Kinsey v.
`
`Watkins, 2:11-CV-165-MEF, 2011 WL 1832966, *1 (M.D. Ala. Apr. 26, 2011) report and
`
`recommendation adopted, 2:11-CV-314-MEF, 2011 WL 1832967 (M.D. Ala. May 13, 2011)
`
`aff'd, 460 F. App'x 877 (11th Cir. 2012). Likewise, the undersigned attempted to explain that
`
`the Eleventh Circuit opinions have not resulted in the outcomes that Kinsey interprets them
`
`to be:
`
`Plaintiffs seem to be operating under the false impression that the Eleventh
`Circuit gave them a monetary judgment in their favor. Rather, the record
`clearly establishes that the Eleventh Circuit affirmed the district court's
`dismissal of the case. Clearly, the Plaintiffs do not understand that this means
`the Eleventh Circuit agreed with Judge Watkins and determined that the
`Plaintiffs previous case should be dismissed—thus, there is no money
`judgment despite Plaintiffs' lack of understanding.
`
`Page 10 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 11 of 15
`
`Id. at n. 2. Kinsey has continued to filing pleadings in several cases misrepresenting
`
`Eleventh Circuit opinions to this Court.
`
`Under Rule 11 of the Federal Rules of Civil Procedure, an attorney or pro se plaintiff
`
`can subject themselves to sanctions by making false representations to the court. FED R.
`4
`
`CIV. P. 11(b). Rule 11(b), in relevant part, reads as follows:
`
`By presenting to the court a pleading, written motion, or other paper—whether
`by signing, filing, submitting, or later advocating it—an attorney or
`unrepresented party certifies that to the best of the person's knowledge,
`information, and belief, formed after an inquiry reasonable under the
`circumstances: (1) it is not being presented for any improper purpose, such as
`to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
`(2) the claims, defenses, and other legal contentions are warranted by existing
`law or by a nonfrivolous argument for extending, modifying, or reversing
`existing law or for establishing new law [. . .].
`
`Id. Clearly, Kinsey’s repeated arguments surrounding the Eleventh Circuit’s opinions have
`
`not been formed “after an inquiry reasonable under the circumstances,” and are not
`
`“warranted by existing law.” Id. Kinsey has repeatedly raised this argument in numerous
`
`cases, arguably with an “improper purpose, such as to harass, cause unnecessary delay, or
`
`needlessly increase the cost of litigation.” Id. Subsection (b) and (c) requires:
`
`attorneys and pro se litigants to conduct a reasonable inquiry into the law and
`facts before signing pleadings, written motions, and other documents, and
`prescribing sanctions for violation of these obligations....The rule continues to
`require litigants to “stop-and-think” before initially making legal or factual
`contentions. It also, however, emphasizes the duty of candor by subjecting
`litigants to potential sanctions for insisting upon a position after it is no longer
`tenable.
`
` “[T]he standard is the same for unrepresented parties, who are obliged themselves to sign the
`4
`pleadings.” FED R. CIV. P. 11 advisory committee’s note (citing Haines v. Kerner, 404 U.S. 519 (1972)).
`
`Page 11 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 12 of 15
`
`FED R. CIV. P. 11 advisory committee’s note.
`
`This Court is issuing Kinsey a very serious warning. If Kinsey persists in
`
`misrepresenting the Eleventh Circuit’s opinions despite the numerous explanations given to
`
`her, the Court will be left with no other choice except to impose sanctions.
`
`The court now turns to whether the Kinsey I court’s decision on 28 U.S.C. §
`
`1915(e)(2)(B) review was a decision on the merits.
`
`“A judgment is on the merits when it amounts to a decision as to the respective
`rights and liabilities of the parties, based on the ultimate fact or state of the
`parties disclosed by the pleadings or evidence, or both, and on which the right
`of recovery depends, irrespective of formal, technical, or dilatory objections
`or contentions. Key factors in determining whether a judgment may be
`considered as on the merits are that there have been notice and an opportunity
`to be heard . . .
`
`“It is not necessary, however, that there should have been a trial. If the
`judgment is general, and not based on any technical defect or objection, and
`the parties had a full legal opportunity to be heard on their respective claims
`and contentions, it is on the merits, although there was no actual hearing on
`the facts of the case.”
`
`Mars Hill Baptist Church of Anniston, Ala., Inc. v. Mars Hill Missionary Baptist Church, 761
`
`So.2d 975 (Ala. 2000). See also Bd. of Tr. of the Univ. of Ala. v. Am. Res. Ins. Co., Inc., 5
`
`So.3d 521, 533 (Ala. 2008) (same); A.B.C. Truck Lines v. Kenemer, 247 Ala. 543, 546, 25
`
`So.2d 511, 513 (Ala.1946) (same). “However, res judicata does not apply if there was no
`
`final judgment on the merits in the earlier suit.” Hughes v. Lott, 350 F.3d 1157, 1161 (11th
`
`Cir. 2003) (citing I.A. Durbin, Inc., 793 F.2d at 1549).
`
`Kinsey I was dismissed on a § 1915 review after Kinsey was allowed to proceed in
`
`Page 12 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 13 of 15
`
`forma pauperis. Kinsey, 1:11-CV-166-MEF, 2011 WL 1344180. Section 1915 dismissals
`
`“are not dismissals on the merits and, therefore, do not prejudice the later filing of a paid
`
`complaint.” Hughes, 350 F.3d at 1161 (citing Denton v. Hernandez, 504 U.S. 25, 34, 112
`
`S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992). Both the Supreme Court of the Unites States and
`
`the Eleventh Circuit has “recognized no res judicata effect of § 1915 dismissals on
`
`subsequent paid complaints.” Id. Although there was a Motion to Dismiss filed in Kinsey
`5
`
`I, it was denied as moot, and the case was dismissed based upon 28 U.S.C. § 1915(e)(2)(B)(i)
`
`and (ii). See Kinsey, 1:11-CV-166-MEF, Docs. 4, 9. As a result, this Court finds that the §
`
`1915 dismissal in Kinsey I was not a final judgment on the merits; thus, res judicata is not
`
`a bar to the plaintiff’s claims in this lawsuit.
`
`B.
`
`Frivolous Claim
`
`The instant complaint asserts an identical claim against AAIC as those presented to
`
`this Court in Kinsey, 1:11-CV-166-MEF, 2011 WL 1344180, which was decided adversely
`
`to Kinsey. Specifically, the Court noted that “Alabama law is clear that before Kinsey can
`
`bring suit against Assurance, she must first obtain a judgment against Assurance's insured
`
`motorist.” Kinsey, 1:11-CV-166-MEF, 2011 WL 1344180, *1. The Court cited to Supreme
`
`Court of Alabama case law that states:
`
`The injured party, however, can bring an action against the insurer only after
`
` Since the instant action was removed to this Court and the filing fee was paid for by the
`5
`defendant, the plaintiff did not request to proceed in forma pauperis. See Hughes, 350 F.3d at 1161
`(quoting Denton, 504 U.S. at 34, 112 S.Ct. At 1734) (stating that § 1915 dismissals “could, however,
`have a res judicata effect on frivolousness determinations for future in forma pauperis petitions.”).
`
`Page 13 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 14 of 15
`
`he has recovered a judgment against the insured and only if the insured was
`covered against the loss or damage at the time the injured party’s right of
`action arose against the insured tort-feasor.
`
`Id. (citing State Farm Mut. Auto. Ins. Co. v. Brown, 894 So.2d 643, 648 (Ala.2004) (quoting
`
`Maness v. Ala. Farm Bureau Mut. Cas. Ins. Co., 416 So.2d 979, 981–82 (Ala.1982)). The
`
`Court expressly determined that since Kinsey had not recovered a judgment against the
`
`insured tortfeasor, her claims were “‘without arguable merit in fact or law,’ and she has
`
`failed to state a claim for which relief may be granted;” therefore, Kinsey’s claims were “due
`
`to be dismissed as frivolous.” Id. at *2. There is nothing now before this Court to indicate
`
`any change in the status of Kinsey’s procedural posture. The Court explicitly explained to
`
`Kinsey that to have any recourse against AAIC, she must first recover a judgment against the
`
`insured tortfeasor. Rather than heed the Court’s advice to properly pursue her claim, Kinsey
`
`simply filed yet another complaint against AAIC in state court ignoring the fact that the law
`
`this Court cited in Kinsey I was Alabama law.
`
`In light of the foregoing, the Court concludes that Kinsey’s claims against AAIC
`
`continue to be frivolous and dismissal of these claims is therefore appropriate because Kinsey
`
`has once again failed to state a claim for which relief may be granted.
`
`VI. CONCLUSION
`
`Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the
`
`Defendant’s Motion for Summary Judgment (Doc. 4) be GRANTED.
`
`It is further ORDERED that the parties file any objections to the this
`
`Page 14 of 15
`
`

`
`Case 1:12-cv-00850-MEF-TFM Document 11 Filed 04/24/13 Page 15 of 15
`
`Recommendation on or before May 8, 2013. Any objections filed must specifically identify
`
`the findings in the Magistrate Judge’s Recommendation to which the party is objecting.
`
`Frivolous, conclusive or general objections will not be considered by the District Court. The
`
`parties are advised that this Recommendation is not a final order of the court and, therefore,
`
`it is not appealable.
`
`Failure to file written objections to the proposed findings and recommendations in the
`
`Magistrate Judge's report shall bar the party from a de novo determination by the District
`
`Court of issues covered in the report and shall bar the party from attacking on appeal factual
`
`findings in the report accepted or adopted by the District Court except upon grounds of plain
`
`error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein
`
`v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of
`
`Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the
`
`decisions of the former Fifth Circuit handed down prior to the close of business on
`
`September 30, 1981).
`
`DONE this 24th day of April, 2013.
`
`/s/ Terry F. Moorer
`TERRY F. MOORER
`UNITED STATES MAGISTRATE JUDGE
`
`Page 15 of 15