     12-3967
     Pantoja v. Banco Popular



                                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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.



             At a stated term of the United States Court of Appeals for the Second Circuit, held
     at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
     York, on the 1st day of November, two thousand thirteen.

     PRESENT:
                 ROBERT A. KATZMANN,
                       Chief Judge,
                 AMALYA L. KEARSE,
                 RICHARD C. WESLEY,
                       Circuit Judges.
     ___________________________________________

     Rafael M. Pantoja,

                                 Plaintiff - Appellant,
                       v.                                           12-3967

     Banco Popular, American Security Insurance
     Company,

                         Defendants - Appellees.
     ___________________________________________

     FOR APPELLANT:                     Rafael M. Pantoja, pro se, Brooklyn, NY.

     FOR APPELLEES:                     Michael Peter De Simone, John P. Doherty, Carolyn
                                        O’Leary, Alston & Bird LLP, New York, NY, for Appellee
                                        Banco Popular.

                                        Andrew T. Solomon, Sullivan & Worcester LLP, New York,
                                        NY, for Appellee American Security Insurance Company.
       Appeal from a judgment of the United States District Court for the Southern

District of New York (Briccetti, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Appellant Rafael M. Pantoja, proceeding pro se, appeals from a judgment of the

district court which (1) granted the motions of Appellees Banco Popular and American

Security Insurance Company (“ASIC”) to dismiss Appellant’s amended complaint; and (2)

denied Appellant leave to further amend his complaint to add, inter alia, a cause of action

pursuant to the False Claims Act, 31 U.S.C. § 3729 et seq. We assume the parties’

familiarity with the underlying facts, procedural history of the case, and issues on appeal.

I. Dismissal of the Complaint

       We review de novo a district court decision dismissing a complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6), Jaghory v. New York State Dep’t of Educ., 131

F.3d 326, 329 (2d Cir. 1997), including a decision based on the affirmative defense of res

judicata, AmBase Corp. v. City Investing Co. Liquidating Trust, 326 F.3d 63, 72 (2d Cir.

2003). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead “enough

facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although

a court must accept as true all the factual allegations in the complaint, that requirement is

“inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. A claim will have “facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.



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Determining whether a complaint states a plausible claim is a “context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.” Harris

v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 679). Thus, plausibility

“depends on a host of considerations: the full factual picture presented by the complaint,

the particular cause of action and its elements, and the existence of alternative explanations

so obvious that they render [the] plaintiff’s inferences unreasonable.” L-7 Designs, Inc. v.

Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).

       As to Appellee Banco Popular, we affirm the district court’s dismissal on res

judicata grounds. The doctrine of issue preclusion “bars successive litigation of an issue of

fact or law actually litigated and resolved in a valid court determination essential to the

prior judgment, even if the issue recurs in the context of a different claim.” Taylor v.

Sturgell, 553 U.S. 880, 892 (2008) (internal quotation marks omitted). The district court

properly found that the criminal case and foreclosure action judgments against Appellant

rested on determinations that he had no right to the mortgage or the mortgaged property.

Appellant is thus precluded from claiming damages arising out of a failure to comply with

the terms of the mortgage agreement or injury to the mortgaged property. Accordingly, we

affirm the district court’s judgment in favor of Appellee Banco Popular on all claims.

       As against Appellee ASIC, we find that Appellant failed to state a claim against

ASIC upon which relief could be granted. “[W]e are free to affirm a decision on any

grounds supported in the record.” Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405

(2d Cir. 2006). Here, appellant sought a declaratory judgment that Appellee ASIC is

obligated to pay for damage to his property, pursuant to an ASIC insurance policy.

However, the facts pleaded by Appellant establish that (1) ASIC’s policy was effective
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from August 2008 to August 2010; (2) the policy stated it provided coverage only for

losses accruing during the policy period; and (3) the damage to the property occurred in

2007. Accordingly, his claim lacks “facial plausibility,” Iqbal, 556 U.S. at 678, because

Appellant alleged damage predating the policy.

        Appellant also seeks to bring a claim pursuant to the Racketeer Influenced and

Corrupt Organizations Act, 18 U.S.C. § 1964, against Appellee ASIC; however, we also

affirm the district court’s dismissal of this claim for failure to state a claim for the reasons

set forth in the district court’s well-reasoned order.

II. Denial of Leave to Amend

        We have held that district courts should generally not dismiss a pro se complaint

without granting the plaintiff leave to amend. See Branum v. Clark, 927 F.2d 698, 705 (2d

Cir. 1991). However, leave to amend is not necessary when it would be futile. See Cuoco

v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (finding leave to replead would be futile

where the complaint, even when read liberally, did not “suggest[] that the plaintiff has a

claim that she has inadequately or inartfully pleaded and that she should therefore be given

a chance to reframe”). Generally, we review the denial of a motion for leave to amend the

complaint for abuse of discretion. Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d

162, 185 (2d Cir. 2012), cert. denied, --- U.S. ---, 133 S. Ct. 846 (2013). However, where

the denial is based on rulings of law, our review is de novo. See Papelino v. Albany

College of Pharmacy of Union University, 633 F.3d 81, 88 (2d Cir. 2011).

        Applying these standards, we affirm the district court’s decision not to grant

Appellant leave to further amend his complaint, for the reasons set forth by the district


                                                4
court. Moreover, Appellant’s argument on appeal, that the district court erred in failing to

afford his complaint a liberal construction, is meritless. First, as an individual with legal

training, Appellant “cannot claim the special consideration which the courts customarily

grant to pro se parties.” Harbulak v. Cnty. of Suffolk, 654 F.2d 194, 198 (2d Cir. 1981).

Second, a pro se litigant may not bring a qui tam action on behalf of the United States.

United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008) (“Because

relators lack a personal interest in False Claims Act qui tam actions, we conclude that they

are not entitled to proceed pro se.”). Third, in a properly-commenced and pleaded qui tam

action, the injury, and therefore the right to bring the claim, belongs to the United States.

See Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 774–75

(2000). Appellant’s proposed amendments, however, do not name the United States as a

party, allege no harm to the federal government, do not allege that either Appellee

submitted or caused to be submitted any claim (fraudulent or otherwise) to the United

States, and merely reassert his claims that he was injured by the actions of the Appellees.

       We have considered all of Pantoja’s contentions on this appeal and have found

them to be without merit. For the foregoing reasons, the judgment of the district court is

hereby AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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