Zherka v. Davey et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SELIM ZHERKA, *
*
Plaintiff, *
* Civil Action No. 25-30024-MGM
v. *
*
LISA DAVEY, MARK ANDREWS, *
STEPHANIE NUSSBAUM, LAURA *
BRADSHW, JIM CHILSON, and YOUNG & *
ASSOCIATES, *
*
Defendants. *
MEMORANDUM AND ORDER RE: REPORT
AND RECOMMENDATION REGARDING
DEFENDANTS’ MOTION TO DISMISS
(Dkt. Nos. 18, 74)
March 31, 2026
MASTROIANNI, U.S.D.J.
On March 9, 2026, Magistrate Judge Christopher L. Morgan issued a Report and
Recommendation, which recommends that this court grant Defendants’ motion to dismiss on res
judicata grounds. (Dkt. No. 74.) As Judge Morgan explained, this case represents Plaintiff’s third
attempt to “insert himself into litigation relating to the Loss [caused by freezing and ice damage at a
rental property building] and the ensuing [insurance] claims process.” (Id. at 13.) However, res
judicata, also known as claim preclusion, bars this latest attempt in light of the court’s denial of
Plaintiff’s motion to intervene in the first case and dismissal with prejudice of the second case.
Plaintiff filed objections to Judge Morgan’s Report and Recommendation, asserting res judicata does
not apply here.
This court, upon de novo review, adopts Judge Morgan’s Report and Recommendation and
will dismiss this case on res judicata grounds. Contrary to Plaintiff’s arguments, “[f]ederal claim
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preclusion bars parties from relitigating claims that could have been made in an earlier suit, not just
claims that were actually made.” Airframe Sys., Inc. v. Raytheon Co., 601 F.3d 9, 14 (1st Cir. 2010).
Moreover, “[t]he doctrine of claim preclusion serves at least two important goals” which are
particularly relevant here: “protecting litigants against gamesmanship and the added litigation costs
of claim-splitting, and preventing scarce judicial resources from being squandered in unnecessary
litigation.” Id. (explaining that “Plaintiffs cannot obtain a second chance at a different outcome by
bringing related claims against closely related defendants at a later date”).
“Claim preclusion applies if (1) the earlier suit resulted in a final judgment on the merits, (2)
the causes of action asserted in the earlier and later suits are sufficiently identical or related, and (3)
the parties in the two suits are sufficiently identical or closed related.” Id. Even assuming that the
denial of the motion to intervene in first case (23-cv-30127) does not amount to a final judgment on
the merits, the dismissal with prejudice of the second case (24-cv-30077) certainly does. Plaintiff has
appealed that dismissal, but “[a] decision retains its finality for preclusion purposes even while an
appeal from the decision is pending.” Efron v. UBS Fin. Servs. Inc., 2025 WL 966796, at *8 (D.P.R.
Mar. 31, 2025 (quoting Rodriguez-Miranda v. Coquico, Inc., 2011 WL 2292263, at *5 (D.P.R. June 7,
2011); see also Washington v. State St. Bank & Tr. Co., 14 F. App’x 12, 16 (1st Cir. 2001) (“[A] federal
court judgment has res judicata effect as soon as it is issued notwithstanding the possibility or even
pendency of an appeal.”); Stahan v. McNamara, 2023 WL 8475657, at *4 (D.N.H. Dec. 7, 2023)
(collecting cases). At the second prong, as Plaintiff’s claims in this case and in the second case “arise
out of a common nucleus of operative facts,” they are sufficiently related for res judicata purposes.
Airframe Sys., 601 F.3d at 15; see also Silva v. City of New Bedford, 660 F.3d 76, 79 (1st Cir. 2011). Even
assuming Plaintiff obtained some additional or different interest in the property on January 7, 2025,
as he contends, these assignments occurred after judgment entered in the second case, and “[t]he
general rule [is] that preclusion attaches to a transferee after judgment.” Wright and Miller, 18A Fed.
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Prac. & Proc. Civ. sec. 4462 (3d ed.). As to the third prong, the court agrees with Judge Morgan that
the parties in this case and the dismissed second case are sufficiently close to warrant the application
of res judicata. See Silva, 660 F.3d at 80 (“[C]laim preclusion applies . . . ‘if the new defendant is closely
related to a defendant from the original action—who was not named in the previous law suit.’”
(quoting Airframe Sys., 601 F.3d at 17)). As Judge Morgan explained, “[e]ach of the individual
Defendants are identified as employees of the organizational defendants and all of the Defendants
are alleged to be agents of Arch.” (Dkt. No. 74 at 18.) These agency and employment relationships
are sufficient under First Circuit precedent. See Silva, 660 F.3d at 80.
Lastly, Judge Morgan recommended that the court deny Defendants’ request for attorneys’
fees and costs but grant the request to enjoin Plaintiff from initiating further pro se suits concerning
the property loss and the ensuing insurance claims process. This court agrees. Plaintiff’s litigation
conduct in the various cases related to the property loss is vexatious. As the court explained in
dismissing the second case, Plaintiff’s complaint in that case was “an obvious attempt to circumvent
this court’s” denial of his motion to intervene in the first case. This third case was an obvious
attempt to circumvent the dismissal of the second case, but, as explained, it is barred by res judicata.
Rather than await a fifth case (a fourth case has already been filed), this court agrees with Judge
Morgan that “[a]n order enjoining [Plaintiff] from filing further pro se complaints concerning the
Loss and the ensuing claims process without leave from court is justified as the most effective way
to limit his continued abuse and waste of the limited resources of this court.” (Dkt. No. 74 at 20.)
See, e.g., Stefanik v. Town of Huntington, 536 F. Supp. 2d 106, 114 (D. Mass. 2008). Moreover, such an
injunction should help to reduce the expenditure of disproportionate time and resources by
Defendants.
Accordingly, the court hereby ADOPTS Judge Morgan’s March 9, 2026, Report and
Recommendation. As a result, Defendants’ Motion to Dismiss (Dkt. No. 18) is GRANTED and this
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action is DISMISSED with prejudice. In addition, Plaintiff’s four motions for judicial notice (Dkt.
Nos. 55, 57, 61, and 64) are DENIED AS MOOT. Lastly, the court will issue a separate Order of
Enjoinment prohibiting Plaintiff from filing additional pro se claims or lawsuits related to the
property loss and ensuing insurance claims process without first obtaining leave of court.
It is So Ordered.
_/s/ Mark G. Mastroianni________
MARK G. MASTROIANNI
United States District Judge
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