Dolan v. Fairbanks Capital Corporation ( 2019 )

16-3879
Dolan v. Fairbanks Capital Corporation
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 6th day of December, two thousand nineteen.
4
5 PRESENT:
6 ROBERT A. KATZMANN,
7 Chief Judge,
8 GUIDO CALABRESI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 Michael T. Dolan,
14
15 Plaintiff-Appellant,
16
17 Donna M. Dolan, and family,
18
19 Plaintiff,
20
21 v. 16-3879
22
23 Fairbanks Capital Corporation, a Utah
24 corporation,
25
26 Defendant-Appellee,
27
28 PMI Mortgage Insurance Company, Walnut
29 Creek, CA, Thomas D. Basmajian, and his
30 officers, employees, and agents, Fairbanks
31 Capital Holding Corporation, a Delaware
32 corporation,
33
34 Defendants.
35 _____________________________________
36
37
1 FOR PLAINTIFF-APPELLANT: MICHAEL T. DOLAN, pro se, Smithtown, NY.
2
3 FOR DEFENDANT-APPELLEE: STEVEN R. KRAMER, Eckert Seamans Cherin
4 & Mellott, LLC, White Plains, NY.
5
6 Appeal from a judgment of the United States District Court for the Eastern District of New
7 York (Chen, J.).
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
9 DECREED that the judgment of the district court is AFFIRMED, and the case is REMANDED
10 to the district court with instructions.
11 Appellant Michael Dolan, pro se, sued Fairbanks Capital Corporation (“FCC”) under
12 federal and state law about FCC’s conduct in servicing Dolan’s mortgage loan. The district court
13 dismissed some of Dolan’s claims on summary judgment with prejudice and denied his motion for
14 application of offensive collateral estoppel and judgment as a matter of law on other claims based
15 on a state court judgment in Dolan’s foreclosure proceedings. After trial, a jury concluded that he
16 had not proven his remaining claims. We assume the parties’ familiarity with the underlying facts,
17 the procedural history of the case, and the issues on appeal.
18 We review de novo a grant of summary judgment and a denial of judgment as a matter of
19 law. Stampf v. Long Island R.R. Co., 761 F.3d 192, 197 (2d Cir. 2014) (judgment as a matter of
20 law); Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (summary judgment). A district court
21 “has considerable discretion in determining how to respond to communications indicating that the
22 jury is experiencing confusion.” United States v. Parker, 903 F.2d 91, 101 (2d Cir. 1990).
23 We offer the following analysis to address Dolan’s primary arguments on appeal. First,
24 Dolan was judicially estopped from seeking offensive collateral estoppel. In denying summary
25 judgment in favor of FCC on the basis of res judicata, the district court had relied on Dolan’s
2
1 argument that FCC had not been a party in the state action and that the state court had not
2 determined whether FCC was liable to Dolan under state law. See Pegram v. Herdrich, 530 U.S.
3 211, 227 n.8 (2000). Second, summary judgment was proper on Dolan’s Real Estate Settlement
4 Procedures Act claims about transfer of servicing because Dolan disclaimed any “actual damages,”
5 which he was required to prove under 12 U.S.C. § 2605(f)(1). Third, the response to the jury’s
6 note requesting clarification about Dolan’s injury was within the district court’s “considerable
7 discretion.” Parker, 903 F.2d at 101.
8 That leaves, as the only significant remaining issue, Dolan’s claim of deceptive acts or
9 practices under N.Y. Gen. Bus. Law § 349. The resolution of this claim turns on the not
10 uncomplicated issue of whether Dolan presented sufficient evidence that FCC’s allegedly
11 deceptive “acts or practices ha[d] a broader impact on consumers at large.” Oswego Laborers’
12 Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 744 (N.Y. 1995). That
13 question being purely of state law, and with no federal claims remaining, we believe that the district
14 court should have dismissed this claim without prejudice to Dolan renewing it in state court. See
15 Oneida Indian Nation of New York v. Madison County, 665 F.3d 408, 436-37 (2d Cir. 2011).
16 We have considered all of Dolan’s remaining arguments and find them to be without merit.
17 Accordingly, we AFFIRM the judgment of the district court, VACATE the district court’s
18 dismissal of Dolan’s N.Y. Gen. Bus. Law § 349 claim, and REMAND to the district court with
19 instructions to dismiss that claim without prejudice.
20 FOR THE COURT:
21 Catherine O=Hagan Wolfe, Clerk of Court
22
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