George E. Ray v. FEDERAL INSURANCE CO./CHUBB On Appeal from the United States District Court for the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1004
___________
GEORGE E. RAY,
Appellant
v.
FEDERAL INSURANCE CO./CHUBB
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 08-1807)
District Judge: Honorable Eduardo C. Robreno
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
JULY 23, 2009
Before: BARRY, SMITH AND GARTH, Circuit Judges
(Opinion filed July 27, 2009)
_________
OPINION
_________
PER CURIAM
Appellant George E. Ray appeals from the District Court’s order granting Appellee
Federal Insurance Company’s (“Federal”) motion to dismiss on res judicata grounds. We
will affirm.

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I.
In May 2008, Ray filed a pro se complaint against Federal, alleging “deceptive and
fradulent [sic] business practices,” “false representations (mail fraud),” “forgery,” and
“perjury” in conjunction with the previous litigation concerning Federal’s denial of Ray’s
claim for disability benefits (hereinafter, “Ray I”). The District Court aptly summarized
the arguments presented in Ray I as follows:
Ray averred that Federal breached its insurance contract with
him by not providing him with total disability benefits after he
fell down a flight of stairs. Federal defended itself by pointing
to specific evidence that Ray’s disability was caused, at least in
part, by his preexisting degenerative condition (spondylotic
cervical myelopathy) . . . The earlier litigation also addressed
Ray’s claims that Federal ‘lied to the Pennsylvania Insurance
Commission’ and ‘that Federal and its counsel engaged in
several acts of misconduct, most notably lying to Ray and to this
Court.’ The Court considered these claims in conjunction with
Ray’s motion for sanctions against Federal, which generally
averred ‘that Federal ‘lied,’ ‘falsified evidence,’ and violated the
Court imposed deadlines for producing discovery and filing
certain motions.’
(Dist. Ct. Op. at 2.)
We affirmed the District Court’s entry of summary judgment in favor of Federal in
Ray I, finding that “Ray failed to satisfy his burden of proof to show that his injury was
solely caused by an accident,” and that “the evidence showed that his current medical
condition plainly pre-dated the accident.” Ray v. Federal Ins. Co./Chubb, 256 F. App’x
566, 569 (3d Cir. Dec. 5, 2007). In addition, we affirmed the District Court’s denial of

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Ray’s motion for sanctions and characterized his contention that “Federal engaged in
fraud or misrepresentation in denying his claim” as “unsupported by the record.” Id. at
569 n.1.
In the current case (hereinafter, “Ray II”), the District Court granted Federal’s
motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and
denied Ray’s motion for summary judgment as moot. The District Court agreed with
Federal that Ray’s claims alleging misconduct on the part of Federal were barred by the
doctrine of res judicata. Ray appealed.
II.
The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332, and we
have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district
court’s order granting a motion to dismiss for failure to state a claim. See McGovern v.
Philadelphia, 554 F.3d 114, 115 (3d Cir. 2009). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, --- U.S. ---,129 S. Ct. 1937, 1949
(2009) (quotation omitted); see also United States Dep’t of Transp., ex rel Arnold v.
CMC Eng’g, 564 F.3d 673, 676 (3d Cir. 2009).

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III.
For substantially the reasons given in the District Court’s opinion, and in part
based upon our conclusions in Ray I, we find that Ray’s complaint “does not plausibly
suggest an entitlement to relief.” Arnold, 564 F.3d at 676. His claims are barred by res
judicata.
Res judicata encompasses two preclusion concepts - issue preclusion, which
forecloses litigation of a litigated and decided matter (often referred to as collateral
estoppel), and claim preclusion, which disallows litigation of a matter that has never been
litigated but which should have been presented in an earlier suit. See Migra v. Warren
City School Dist. Bd. of Educ., 465 U.S. 75, 77 (1984); see also Nevada v. United States,
463 U.S. 110, 130 (1983) (“res judicata provides that when a final judgment has been
entered on the merits of a case, ‘[i]t is a finality as to the claim or demand in controversy .
. ., not only as to every matter which offered and received to sustain or defeat the claim or
demand, but as to any other admissible matter which might have been offered for that
purpose’”) (quotation omitted).
Although Ray I was initiated on a breach of contract theory, Ray made it a point in
that case to include the same fraud-based claims that he now brings in Ray II. Ray’s
semantic parsing notwithstanding, and as the District Court demonstrated (Dist. Ct. Op. at
7-11), Ray II is indeed Ray’s second suit against Federal, following a final judgment on
the merits in Ray I, and it contains a sufficiently similar cause of action to Ray I:

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To the extent that Ray is also claiming violations of his First, Fourth, Ninth and1
Fifteenth Amendment rights (App. Br. at 8), these claims were not presented to the
District Court and are therefore not properly raised on appeal. See United States v. Garth,
188 F.3d 99, 106 n.7 (3d Cir. 1999)
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“fraudulent business practices” concerning Federal’s denial of disability benefits to Ray.
See United States v. Athlone Indus., Inc., 746 F.2d 977, 983 (3d Cir. 1984). In arguing
against the applicability of res judicata, Ray appears to assert that because his claims of
fraud, forgery, etc., were found to be “immaterial, unsubstantiated, meritless and
irrelevant” (App. Br. at 5), they should not have preclusive effect. This position is
untenable, and only bolsters support for the application of res judicata.1
Therefore, we will affirm the District Court’s order granting Federal’s motion to
dismiss. Federal’s pending motion for leave to file a supplemental appendix is granted,
and its motion to strike exhibits from Ray’s brief is denied.

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