Thaddeus J. North and Mark P. Pompeo, Appellants v. Smarsh, Inc. and Financial IndustryRegulatory Authority, Appellees

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United States Court of Appeals, District of Columbia Circuit.

Thaddeus J. North and Mark P. Pompeo, Appellants v. Smarsh, Inc. and Financial IndustryRegulatory Authority, Appellees

No. 17-7120

Decided: December 06, 2017

BEFORE: Rogers, Srinivasan, and Wilkins, Circuit Judges


Upon consideration of the motions for summary affirmance, the responses thereto, and the replies, it is

ORDERED that the motions for summary affirmance be granted. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The district court correctly dismissed the claims against Smarsh, Inc. for lack of personal jurisdiction. Appellants have failed to meet their burden of “establishing a factual basis for the court's exercise of personal jurisdiction.” Williams v. Romarm, S.A., 756 F.3d 777, 785 (D.C. Cir. 2014). Appellants have not demonstrated that Smarsh is subject to general or specific jurisdiction in the District of Columbia, as they have failed to show that Smarsh has “continuous and systematic” business contacts with the District, or that Smarsh transacted business with appellants' former firms in the District. Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 509-10 (D.C. Cir. 2002). Likewise, appellants have not shown that the conspiracy theory of personal jurisdiction is applicable, as they have failed to “plead with particularity the conspiracy as well as the overt acts within the forum taken in furtherance of the conspiracy.” Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1031 (D.C. Cir. 1997) (internal quotation omitted).

Further, the district court correctly concluded that appellants' claims against the Financial Industry Regulatory Authority (“FINRA”) were barred by res judicata, because such claims are based on the same nucleus of facts as those supporting North v. Smarsh, Inc., 160 F. Supp. 3d 63 (D.D.C. 2015). See Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002). Appellants may not overcome res judicata by recasting the facts supporting their previous spoliation claims as a civil conspiracy. Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984) (“It is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory upon which a litigant relies.”) (citations omitted). Moreover, appellants' newly-proffered evidence does not prevent the application of res judicata, as appellants have not alleged that FINRA fraudulently concealed the underlying data, or that the evidence could not have been previously discovered with due diligence. See Guerrero v. Katzen, 774 F.2d 506, 508 (D.C. Cir. 1985) (“[N]ewly discovered evidence normally does not prevent the application of res judicata.”).

Finally, to the extent appellants allege that the district court was biased against them, appellants have not provided an objective basis for questioning the district court's impartiality. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”).

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam