NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-3249
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MARK LEYSE, individually and on behalf
of all others similarly situated,
Appellant
v.
BANK OF AMERICA, NATIONAL ASSOCIATION
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-11-cv-07128)
District Judge: Honorable Susan D. Wigenton
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Submitted Under Third Circuit LAR 34.1(a)
March 21, 2013
BEFORE: McKEE, Chief Judge, SMITH and GREENAWAY, Jr., Circuit Judges.
(Filed: April 24, 2013)
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OPINION
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McKEE, Chief Judge.
Mark Leyse appeals the District Court‟s dismissal of his Complaint against Bank
of America (“BoA”), in which he alleged a violation of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(B). For the reasons that follow, we will
affirm.1
I.
As we write only for the parties who are familiar with this case, we will recite only
the facts and procedural history relevant to our conclusion.
On March 11, 2005, DialAmericaMarketing, Inc. (“DialAmerica”), on behalf of
BoA, made a call with a prerecorded message to Leyse‟s residential telephone line, which
it associated with Leyse‟s roommate, Genevieve Dutriaux. Prior to filing this action,
Leyse had filed a TCPA action based on this same call in the Western District of North
Carolina. BoA successfully moved to transfer the case to the Southern District of New
York (“SDNY”), which dismissed the suit. Leyse v. Bank of Am., N.A., 09 Civ. 7654,
2010 U.S. Dist. LEXIS 58461, at *16 (S.D.N.Y. June 14, 2010). The SDNY concluded
that Leyse was not the “called party,” and therefore, lacked standing to seek statutory
damages under the TCPA. Id. at *15-16. Bluebook R3.2(a). On February 8, 2011, the
Court of Appeals for the Second Circuit summarily affirmed the SDNY‟s ruling.
The District Court ruled that Leyse‟s Complaint in this action is barred by the
doctrine of collateral estoppel. Collateral estoppel precludes relitigation of issues decided
in a prior action. Hawksbill Sea Turtle v. Fed. Emergency Mgmt. Agency, 126 F.3d 461,
1
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1332(d)(2)(A).
We have appellate jurisdiction under 28 U.S.C. § 1291. We review de novo the District
Court‟s application of defensive collateral estoppel, Jean Alexander Cosmetics, Inc. v.
L’Oreal USA, Inc., 458 F.3d 244, 248 (3d Cir. 2006), and statutes of limitations, Nelson
v. Cnty. of Allegheny, 60 F.3d 1010, 1012 (3d Cir. 1995).
2
474 (3d Cir. 1997). Dismissal under the doctrine of collateral estoppel is appropriate
where: “„(1) the issue sought to be precluded [is] the same as that involved in the prior
action, (2) the issue [was] actually litigated; (3) it [was] determined by a final and valid
judgment; and (4) the determination [was] essential to the prior judgment.‟” Nat’l R.R.
Passenger Corp. v. Pa. Pub. Util. Comm’n, 288 F.3d 519, 525 (3d Cir. 2002) (alterations
in original) (quoting Burlington N. R.R. Co. v. Hyundai Merchant Marine, 63 F.3d 1227,
1231-32 (3d Cir. 1995)).
Leyse contends that he is not precluded from bringing this action because the
Second Circuit affirmed the SDNY‟s dismissal in response to BoA‟s motion to dismiss,
which was based on lack of subject matter jurisdiction under New York law. Thus, he
claims that the affirmance was not based on the merits of the SDNY‟s decision. We
disagree.
Although the Second Circuit affirmed in response to BoA‟s motion to dismiss, it
nonetheless summarily affirmed the SDNY‟s order. Nothing in the Second Circuit‟s
summary affirmance leads us to believe, as Leyse contends, that that court adopted
BoA‟s position in its motion to dismiss and displaced the SDNY‟s ruling. The Second
Circuit‟s summary affirmance leaves the SDNY‟s order undisturbed as a final and valid
judgment.
The facts of this case are clearly distinguishable from cases in which the appellate
court made clear that it was setting aside or declining to rule on specific conclusions
reached by the district court. Cf. Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009) (“[I]f
the appellate court terminates the case by final rulings as to some matters only, preclusion
3
is limited to the matters actually resolved by the appellate court.” (quoting 18A Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure §
4432 (2d ed. 2002) (internal quotation marks omitted)). Here, the Second Circuit‟s
summary affirmance neither displaced nor communicated a decision not to address the
SDNY‟s ruling that Leyse lacked standing to assert the TCPA claims in his complaint.
Accordingly, Leyse is bound by that ruling.
We therefore affirm the District Court‟s ruling that Leyse‟s Complaint is barred by
the doctrine of collateral estoppel.2
II.
For the reasons set forth above, we will affirm the Order of the District Court
dismissing Leyse‟s Complaint.
2
The District Court also ruled that Leyse‟s claim is untimely. Because we will
affirm on collateral estoppel grounds, we need not reach the issue of whether Leyse‟s
claim is also time-barred.
4