     16-3879
     Dolan v. Fairbanks Capital Corporation


                             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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 6th day of December, two thousand nineteen.
 4
 5   PRESENT:
 6               ROBERT A. KATZMANN,
 7                     Chief Judge,
 8               GUIDO CALABRESI,
 9               RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11   _____________________________________
12
13   Michael T. Dolan,
14
15                               Plaintiff-Appellant,
16
17   Donna M. Dolan, and family,
18
19                               Plaintiff,
20
21                      v.                                                 16-3879
22
23   Fairbanks Capital Corporation, a Utah
24   corporation,
25
26                               Defendant-Appellee,
27
28   PMI Mortgage Insurance Company, Walnut
29   Creek, CA, Thomas D. Basmajian, and his
30   officers, employees, and agents, Fairbanks
31   Capital Holding Corporation, a Delaware
32   corporation,
33
34                     Defendants.
35   _____________________________________
36
37
 1   FOR PLAINTIFF-APPELLANT:                              MICHAEL T. DOLAN, pro se, Smithtown, NY.
 2
 3   FOR DEFENDANT-APPELLEE:                               STEVEN R. KRAMER, Eckert Seamans Cherin
 4                                                         & Mellott, LLC, White Plains, NY.
 5

 6           Appeal from a judgment of the United States District Court for the Eastern District of New

 7   York (Chen, J.).


 8           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 9   DECREED that the judgment of the district court is AFFIRMED, and the case is REMANDED

10   to the district court with instructions.

11           Appellant Michael Dolan, pro se, sued Fairbanks Capital Corporation (“FCC”) under

12   federal and state law about FCC’s conduct in servicing Dolan’s mortgage loan. The district court

13   dismissed some of Dolan’s claims on summary judgment with prejudice and denied his motion for

14   application of offensive collateral estoppel and judgment as a matter of law on other claims based

15   on a state court judgment in Dolan’s foreclosure proceedings. After trial, a jury concluded that he

16   had not proven his remaining claims. We assume the parties’ familiarity with the underlying facts,

17   the procedural history of the case, and the issues on appeal.

18           We review de novo a grant of summary judgment and a denial of judgment as a matter of

19   law. Stampf v. Long Island R.R. Co., 761 F.3d 192, 197 (2d Cir. 2014) (judgment as a matter of

20   law); Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (summary judgment). A district court

21   “has considerable discretion in determining how to respond to communications indicating that the

22   jury is experiencing confusion.” United States v. Parker, 903 F.2d 91, 101 (2d Cir. 1990).

23           We offer the following analysis to address Dolan’s primary arguments on appeal. First,

24   Dolan was judicially estopped from seeking offensive collateral estoppel. In denying summary

25   judgment in favor of FCC on the basis of res judicata, the district court had relied on Dolan’s


                                                      2
 1   argument that FCC had not been a party in the state action and that the state court had not

 2   determined whether FCC was liable to Dolan under state law. See Pegram v. Herdrich, 530 U.S.

 3   211, 227 n.8 (2000). Second, summary judgment was proper on Dolan’s Real Estate Settlement

 4   Procedures Act claims about transfer of servicing because Dolan disclaimed any “actual damages,”

 5   which he was required to prove under 12 U.S.C. § 2605(f)(1). Third, the response to the jury’s

 6   note requesting clarification about Dolan’s injury was within the district court’s “considerable

 7   discretion.” Parker, 903 F.2d at 101.

 8          That leaves, as the only significant remaining issue, Dolan’s claim of deceptive acts or

 9   practices under N.Y. Gen. Bus. Law § 349. The resolution of this claim turns on the not

10   uncomplicated issue of whether Dolan presented sufficient evidence that FCC’s allegedly

11   deceptive “acts or practices ha[d] a broader impact on consumers at large.” Oswego Laborers’

12   Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 744 (N.Y. 1995). That

13   question being purely of state law, and with no federal claims remaining, we believe that the district

14   court should have dismissed this claim without prejudice to Dolan renewing it in state court. See

15   Oneida Indian Nation of New York v. Madison County, 665 F.3d 408, 436-37 (2d Cir. 2011).

16          We have considered all of Dolan’s remaining arguments and find them to be without merit.

17   Accordingly, we AFFIRM the judgment of the district court, VACATE the district court’s

18   dismissal of Dolan’s N.Y. Gen. Bus. Law § 349 claim, and REMAND to the district court with

19   instructions to dismiss that claim without prejudice.

20                                                  FOR THE COURT:
21                                                  Catherine O=Hagan Wolfe, Clerk of Court
22



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