ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2566
KEITH ALEXANDER ASHE,
Plaintiff – Appellant,
v.
PNC FINANCIAL SERVICES GROUP, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge.
(8:15-cv-00144-PWG)
Submitted: April 21, 2016 Decided: June 13, 2016
Before WILKINSON, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Keith Alexander Ashe, Appellant Pro Se. Naresh Kilaru, Mark S.
Sommers, FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Alexander Ashe appeals the district court’s order
dismissing his civil complaint against PNC Financial Services
Group, Inc. (“PNC”) for trademark infringement as barred by
collateral estoppel. In our initial consideration of this
matter, we dismissed the appeal as untimely. Ashe has submitted
evidence that he filed a timely notice of appeal with the
district court, but that notice was rejected for failure to
include the required filing fees. We agree that, under these
circumstances, Ashe filed a timely notice of appeal. See Fed.
R. App. P. 3(a)(2) (“An appellant's failure to take any step
other than the timely filing of a notice of appeal does not
affect the validity of the appeal”); Han Tak Lee v. Houtzdale
SCI, 798 F.3d 159, 164 (3d Cir. 2015) (“a clerk's office cannot
reject a notice of appeal simply because the filing fee has not
been paid”). Accordingly, we grant Ashe’s petition for
rehearing.
Nevertheless, we conclude that the district court did not
err in dismissing Ashe’s case as barred by collateral estoppel.
We review de novo a district court’s dismissal of a complaint on
such grounds. Tuttle v. Arlington Cty. Sch. Bd., 195 F.3d 698,
703 (4th Cir. 1999).
Ashe argues on appeal that the district court erred in
dismissing his complaint rather than converting PNC’s motion to
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a motion for summary judgment. Although a motion to dismiss
generally cannot reach the merits of an affirmative defense,
“where facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a motion
to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair,
Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc). Moreover, a
district court may properly “take judicial notice of facts from
a prior judicial proceeding when the [collateral estoppel]
defense raises no disputed issue of fact.” Andrews v. Daw, 201
F.3d 521, 524 n.1 (4th Cir. 2000). Because Ashe “does not
dispute the factual accuracy of the record of his previous
suit,” the district court did not err in taking judicial notice
of a prior Trademark Trial and Appeal Board (“TTAB”) decision.
Id.
Ashe next argues that the district court incorrectly
determined that the issue of priority in the TTAB decision was
identical to the issue of priority presented in the trademark
infringement case. The district court concluded, and PNC argues
on appeal, that the issue of priority in a trademark opposition
case before the TTAB is always identical to the issue of
priority in a federal trademark infringement case. In contrast,
Ashe argues that the Supreme Court in B & B Hardware, Inc. v.
Hargis Indus., Inc., 135 S. Ct. 1293, 1299 (2015), held that the
issue of priority will, at least sometimes, be different.
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Even assuming that B & B Hardware stands for the
proposition that, when considering the issue of priority, courts
must determine whether the actual use of a mark is the same as
the use stated in a trademark application, Ashe has alleged no
actual use of the mark other than those uses described in his
trademark application. Consequently, in this case, the issue of
priority decided by the TTAB was identical to the issue of
priority presented to the district court.
Therefore, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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