Lifeng Lee Hsu v. Great Seneca Financial Corp. , 378 F. App'x 196 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-4058
LIFENG LEE HSU,
Appellant
v.
GREAT SENECA FINANCIAL CORP; WOLPOFF & ABRAMSON L.L.P.; FOX
ROTHSCHILD LLP; NEAL J. LEVITSKY; PALISADES ACQUISITION XVI LLC
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 06-cv-00401; 08-cv-00293)
Magistrate Judge: Honorable Mary Pat Thynge
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 26, 2010
Before: BARRY, AMBRO and COWEN, Circuit Judges
(Opinion filed: April 28, 2010)
OPINION
PER CURIAM
Appellant, Lifeng Lee Hsu, appeals from the Magistrate Judge’s 1 order dismissing
1
United States Magistrate Judge Mary Pat Thynge presided by consent of the parties.
See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
his complaint. For the following reasons, we will affirm.
In June 2006, Hsu commenced an action in the United States District Court for the
District of Delaware against his creditor, Great Seneca Financial Corporation, alleging
violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 (2000).2
(D.C. No. 06-cv-00401.) Specifically, Hsu claimed that the defendant had violated
various provisions of the FDCPA when the company pursued a collection action against
him in the Delaware Court of Common Pleas to recover the debt he owed on a defaulted
credit card account. Hsu later amended his complaint to add state-law claims for fraud
and civil conspiracy.
In May 2008, Hsu commenced a second action in the District Court against the
same defendants.3 (D.C. No. 08-cv-00293.) The second complaint mirrored the first,
with the addition of several new FDCPA claims. The Magistrate Judge consolidated the
two actions.
The defendants moved to dismiss the complaints on the grounds that: (1) Hsu had
already brought, and lost, the same FDCPA claims in the state-court collection action; and
(2) Hsu’s fraud and civil conspiracy allegations failed to state a claim under Rule
12(b)(6). See Fed. R. Civ. P. 12(b)(6). The Magistrate Judge agreed with the defendants
2
The complaint also named as defendants several attorneys who helped with Great
Seneca’s collection efforts.
3
Hsu named as an additional defendant debt collection agency Palisades Acquisition
XVI LLC.
2
that Hsu’s claims were either barred by the doctrine of res judicata or subject to dismissal
under Rule 12(b)(6), and, by orders entered January 5 and September 21, 2009, dismissed
the complaints.4 This appeal followed.5
We will affirm the Magistrate Judge’s orders. For the reasons set forth in detail in
her January 5 and September 21, 2009 memorandum orders, all of Hsu’s FDCPA claims
are barred by the doctrine of res judicata because the Court of Common Pleas previously
rejected them in the collection action. See San Remo Hotel L.P. v. City of San Francisco,
545 U.S. 323, 336 n.16 (2005) (explaining that, under res judicata, a final judgment on
the merits of an action precludes the parties from re-litigating issues that were, or could
have been, raised in that action). In addition, because the Court of Common Pleas
ultimately determined that Hsu was liable for the disputed credit card debt, the Magistrate
Judge correctly concluded that the amended complaint failed to state a claim for fraud or
civil conspiracy to commit fraud. See Stephenson v. Capano Dev., Inc., 462 A.2d 1069,
1074 (Del 1983) (noting that, in order to state a claim for fraud under Delaware law,
4
In her January 5, 2009 order, the Magistrate Judge dismissed most of the claims that
Hsu raised in D.C. No. 06-cv-00401, but allowed one claim to proceed. At that time, Hsu
sought permission to file an interlocutory appeal. The Magistrate Judge denied this
request as moot as part of her September 21, 2009, order disposing of the rest of Hsu’s
claims—i.e., the claim remaining in D.C. No. 06-cv-00401, and the claims raised in D.C.
No. 08-cv-00293. Hsu does not challenge this aspect of the Magistrate Judge’s order on
appeal.
5
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of
the Magistrate Judge’s orders dismissing the complaints is plenary. Lora-Pena v. F.B.I.,
529 F.3d 503, 505 (3d Cir. 2008).
3
plaintiff must show that the defendant made a false representation); McLaughlin v.
Copeland, 455 F. Supp. 749, 752 (D. Del. 1978) (explaining that the gravamen of an
action in civil conspiracy is not the conspiracy itself but the underlying wrong).
Accordingly, we will affirm the Magistrate Judge’s January 5 and September 21,
2009 memorandum orders.
4