Donna M. Dolan, and family, Plaintiff, v. PMI CA (2019)

SUMMARY ORDER

Appellant Michael Dolan, pro se, sued Fairbanks Capital Corporation (“FCC”) under federal and state law about FCC’s conduct in servicing Dolan’s mortgage loan. The district court dismissed some of Dolan’s claims on summary judgment with prejudice and denied his motion for application of offensive collateral estoppel and judgment as a matter of law on other claims based on a state court judgment in Dolan’s foreclosure proceedings. After trial, a jury concluded that he had not proven his remaining claims. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo a grant of summary judgment and a denial of judgment as a matter of law. Stampf v. Long Island R.R. Co., 761 F.3d 192, 197 (2d Cir. 2014) (judgment as a matter of law); Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (summary judgment). A district court “has considerable discretion in determining how to respond to communications indicating that the jury is experiencing confusion.” United States v. Parker, 903 F.2d 91, 101 (2d Cir. 1990).

We offer the following analysis to address Dolan’s primary arguments on appeal. First, Dolan was judicially estopped from seeking offensive collateral estoppel. In denying summary judgment in favor of FCC on the basis of res judicata, the district court had relied on Dolan’s argument that FCC had not been a party in the state action and that the state court had not determined whether FCC was liable to Dolan under state law. See Pegram v. Herdrich, 530 U.S. 211, 227 n.8, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000). Second, summary judgment was proper on Dolan’s Real Estate Settlement Procedures Act claims about transfer of servicing because Dolan disclaimed any “actual damages,” which he was required to prove under 12 U.S.C. § 2605(f)(1). Third, the response to the jury’s note requesting clarification about Dolan’s injury was within the district court’s “considerable discretion.” Parker, 903 F.2d at 101.

That leaves, as the only significant remaining issue, Dolan’s claim of deceptive acts or practices under N.Y. Gen. Bus. Law § 349. The resolution of this claim turns on the not uncomplicated issue of whether Dolan presented sufficient evidence that FCC’s allegedly deceptive “acts or practices ha[d] a broader impact on consumers at large.” Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741, 744 (1995). That question being purely of state law, and with no federal claims remaining, we believe that the district court should have dismissed this claim without prejudice to Dolan renewing it in state court. See Oneida Indian Nation of New York v. Madison County, 665 F.3d 408, 436-37 (2d Cir. 2011).

We have considered all of Dolan’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court, VACATE the district court’s dismissal of Dolan’s N.Y. Gen. Bus. Law § 349 claim, and REMAND to the district court with instructions to dismiss that claim without prejudice.