12-3967
Pantoja v. Banco Popular
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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 1st day of November, two thousand thirteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
AMALYA L. KEARSE,
RICHARD C. WESLEY,
Circuit Judges.
___________________________________________
Rafael M. Pantoja,
Plaintiff - Appellant,
v. 12-3967
Banco Popular, American Security Insurance
Company,
Defendants - Appellees.
___________________________________________
FOR APPELLANT: Rafael M. Pantoja, pro se, Brooklyn, NY.
FOR APPELLEES: Michael Peter De Simone, John P. Doherty, Carolyn
O’Leary, Alston & Bird LLP, New York, NY, for Appellee
Banco Popular.
Andrew T. Solomon, Sullivan & Worcester LLP, New York,
NY, for Appellee American Security Insurance Company.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Briccetti, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Appellant Rafael M. Pantoja, proceeding pro se, appeals from a judgment of the
district court which (1) granted the motions of Appellees Banco Popular and American
Security Insurance Company (“ASIC”) to dismiss Appellant’s amended complaint; and (2)
denied Appellant leave to further amend his complaint to add, inter alia, a cause of action
pursuant to the False Claims Act, 31 U.S.C. § 3729 et seq. We assume the parties’
familiarity with the underlying facts, procedural history of the case, and issues on appeal.
I. Dismissal of the Complaint
We review de novo a district court decision dismissing a complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), Jaghory v. New York State Dep’t of Educ., 131
F.3d 326, 329 (2d Cir. 1997), including a decision based on the affirmative defense of res
judicata, AmBase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63, 72 (2d Cir.
2003). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although
a court must accept as true all the factual allegations in the complaint, that requirement is
“inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. A claim will have “facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
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Determining whether a complaint states a plausible claim is a “context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 679). Thus, plausibility
“depends on a host of considerations: the full factual picture presented by the complaint,
the particular cause of action and its elements, and the existence of alternative explanations
so obvious that they render [the] plaintiff’s inferences unreasonable.” L-7 Designs, Inc. v.
Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).
As to Appellee Banco Popular, we affirm the district court’s dismissal on res
judicata grounds. The doctrine of issue preclusion “bars successive litigation of an issue of
fact or law actually litigated and resolved in a valid court determination essential to the
prior judgment, even if the issue recurs in the context of a different claim.” Taylor v.
Sturgell, 553 U.S. 880, 892 (2008) (internal quotation marks omitted). The district court
properly found that the criminal case and foreclosure action judgments against Appellant
rested on determinations that he had no right to the mortgage or the mortgaged property.
Appellant is thus precluded from claiming damages arising out of a failure to comply with
the terms of the mortgage agreement or injury to the mortgaged property. Accordingly, we
affirm the district court’s judgment in favor of Appellee Banco Popular on all claims.
As against Appellee ASIC, we find that Appellant failed to state a claim against
ASIC upon which relief could be granted. “[W]e are free to affirm a decision on any
grounds supported in the record.” Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405
(2d Cir. 2006). Here, appellant sought a declaratory judgment that Appellee ASIC is
obligated to pay for damage to his property, pursuant to an ASIC insurance policy.
However, the facts pleaded by Appellant establish that (1) ASIC’s policy was effective
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from August 2008 to August 2010; (2) the policy stated it provided coverage only for
losses accruing during the policy period; and (3) the damage to the property occurred in
2007. Accordingly, his claim lacks “facial plausibility,” Iqbal, 556 U.S. at 678, because
Appellant alleged damage predating the policy.
Appellant also seeks to bring a claim pursuant to the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. § 1964, against Appellee ASIC; however, we also
affirm the district court’s dismissal of this claim for failure to state a claim for the reasons
set forth in the district court’s well-reasoned order.
II. Denial of Leave to Amend
We have held that district courts should generally not dismiss a pro se complaint
without granting the plaintiff leave to amend. See Branum v. Clark, 927 F.2d 698, 705 (2d
Cir. 1991). However, leave to amend is not necessary when it would be futile. See Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (finding leave to replead would be futile
where the complaint, even when read liberally, did not “suggest[] that the plaintiff has a
claim that she has inadequately or inartfully pleaded and that she should therefore be given
a chance to reframe”). Generally, we review the denial of a motion for leave to amend the
complaint for abuse of discretion. Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d
162, 185 (2d Cir. 2012), cert. denied, --- U.S. ---, 133 S. Ct. 846 (2013). However, where
the denial is based on rulings of law, our review is de novo. See Papelino v. Albany
College of Pharmacy of Union University, 633 F.3d 81, 88 (2d Cir. 2011).
Applying these standards, we affirm the district court’s decision not to grant
Appellant leave to further amend his complaint, for the reasons set forth by the district
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court. Moreover, Appellant’s argument on appeal, that the district court erred in failing to
afford his complaint a liberal construction, is meritless. First, as an individual with legal
training, Appellant “cannot claim the special consideration which the courts customarily
grant to pro se parties.” Harbulak v. Cnty. of Suffolk, 654 F.2d 194, 198 (2d Cir. 1981).
Second, a pro se litigant may not bring a qui tam action on behalf of the United States.
United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008) (“Because
relators lack a personal interest in False Claims Act qui tam actions, we conclude that they
are not entitled to proceed pro se.”). Third, in a properly-commenced and pleaded qui tam
action, the injury, and therefore the right to bring the claim, belongs to the United States.
See Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 774–75
(2000). Appellant’s proposed amendments, however, do not name the United States as a
party, allege no harm to the federal government, do not allege that either Appellee
submitted or caused to be submitted any claim (fraudulent or otherwise) to the United
States, and merely reassert his claims that he was injured by the actions of the Appellees.
We have considered all of Pantoja’s contentions on this appeal and have found
them to be without merit. For the foregoing reasons, the judgment of the district court is
hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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