                                         NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                           No. 12-2267
                           ___________

ANDREW J. BULLOCK, IV, INDIVIDUALLY, AND DERIVATIVELY ON BEHALF
      OF: MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION

                                v.

    ARTHUR S. KLEIN, ESQUIRE, INDIVIDUALLY AND IN HIS CAPACITY AS
 PURPORTED BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS'
   ASSOCIATION; KENNETH O. SPANG, III, ESQUIRE; SCOTT F. WATERMAN,
   ESQUIRE; MARIE RITA GLEASON, ESQUIRE, INDIVIDUALLY AND IN HER
 CAPACITY AS TOWNSHIP MANAGER OF TREDYFFRIN TOWNSHIP; THOMAS
    J. CRANDALL, INDIVIDUALLY AND IN HIS CAPACITY AS PURPORTED
BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION;
 GERARD J. BERGER, INDIVIDUALLY AND IN HIS CAPACITY AS PURPORTED
BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION;
 SHAYNA F. BEST, INDIVIDUALLY AND IN HER CAPACITY AS PURPORTED
BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION;
     WILLIAM M. SUNICK, JR., INDIVIDUALLY AND IN HIS CAPACITY AS
  PURPORTED BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS'
 ASSOCIATION; JUDITH B. WETZEL, INDIVIDUALLY AND IN HER CAPACITY
         AS PURPORTED BOARD MEMBER OF MAIN STREET VILLAGE
HOMEOWNERS' ASSOCIATION; DONNA M. HOUGHTON, INDIVIDUALLY AND
    IN HER CAPACITY AS PURPORTED BOARD MEMBER OF MAIN STREET
        VILLAGE HOMEOWNERS' ASSOCIATION; PATRICIA A. EVANS,
INDIVIDUALLY AND IN HER CAPACITY AS PURPORTED BOARD MEMBER OF
      MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION; KATHRYN
 MARINICK, INDIVIDUALLY AND IN HER CAPACITY AS PURPORTED BOARD
 MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION; MAIN
  STREET VILLAGE HOMEOWNERS' ASSOCIATION; PENCO MANAGEMENT,
  INC.; ELIZABETH A. SHINGLE, INDIVIDUALLY AND IN HER CAPACITY AS
        MANAGER AGENT FOR MAIN STREET VILLAGE HOMEOWNERS'
 ASSOCIATION; RONALD WHITE, INDIVIDUALLY AND IN HIS CAPACITY AS
       AGENT FOR THE PURPORTED BOARD OF MAIN STREET VILLAGE
                                1
HOMEOWNERS' ASSOCIATION; MONIKA GERMONO, INDIVIDUALLY AND IN
  HER CAPACITY AS PURPORTED AGENT FOR PURPORTED MAIN STREET
     VILLAGE HOMEOWNERS' ASSOCIATION; EDMUND S. PENDELTON,
      INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT OF PENCO
MANAGEMENT, INC.; DONALD FRANCESCHINI, INDIVIDUALLY AND IN HIS
         CAPACITY AS PRESIDENT OF PENCO MANAGEMENT, INC.;
BRYN MAWR LANDSCAPING CO INC; THOMAS J. FOGA, JR., INDIVIDUALLY
  AND IN HIS CAPACITY AS TREASURER OF BRYN MAWR LANDSCAPING;
 ATLANTIC ROOFING CORP.; CHRISTOPHER CONN, INDIVIDUALLY AND IN
    HIS CAPACITY AS IT RELATES TO ATLANTIC ROOFING; JIM MILLER
ROOFING AND SHEET METAL INC.; JAMES MILLER, INDIVIDUALLY AND IN
HIS CAPACITY AS PRESIDENT OF JIM MILLER ROOFING AND SHEET METAL
  INC.; WISLER, PEARLSTEIN, TALONE, CRAIG, GARRITY & POTASH, LLP;
   BLACK, STRANICK & WATERMAN, LLP.; DAVID J. SCAGGS, ESQUIRE;
  BLAIR H. GRANGER, ESQUIRE; BLAIR H. GRANGER & ASSOCIATES, P.C.;
 TREDYFFRIN TOWNSHIP; MS. EMELINE BALDASSARREE, INDIVIDUALLY
     AND IN HER CAPACITY AS BUILDING INSPECTOR OF TREDYFFRIN
        TOWNSHIP; TREDYFFRIN TOWNSHIP POLICE DEPARTMENT;
   ANDREW CHAMBERS, SUPERINTENDENT, INDIVIDUALLY AND IN HIS
   CAPACITY AS SUPERINTENDENT OF TREDYFFRIN TOWNSHIP POLICE
 DEPARTMENT; BARRAR, SGT., INDIVIDUALLY AND IN HIS CAPACITY AS
    POLICE OFFICER OF TREDYFFRIN TOWNSHIP; OFC. JOHN/JANE DOE,
    INDIVIDUALLY AND IN HIS/HER CAPACITY AS POLICE OFFICER OF
  TREDYFFRIN TOWNSHIP; HUGH A. O'HARE, INDIVIDUALLY AND IN HIS
CAPACITY AS CHIEF BUILDING CODE OFFICER OF TREDYFFRIN TOWNSHIP;
      JUDY L. DIFILLIPO, INDIVIDUALLY AND IN HER CAPACITY AS A
  MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;
  MARK DEFELICIANTONIO, INDIVIDUALLY AND IN HIS CAPACITY AS A
  MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;
   BILL DEHAVEN, INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER
       OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;
 PAUL J. DRUCKER, ESQUIRE, INDIVIDUALLY AND IN HIS CAPACITY AS A
  MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;
 WARREN E. KAMPF, ESQUIRE, INDIVIDUALLY AND IN HIS CAPACITY AS A
  MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;
 E. BROOKS KEFFER, JR., ESQUIRE, INDIVIDUALLY AND IN HIS CAPACITY
     AS A MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN
TOWNSHIP; ROBERT Q. W. LAMINA, INDIVIDUALLY AND IN HIS CAPACITY
     AS A MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN
                      TOWNSHIP; SOVEREIGN BANK

                                2
                           Andrew J. Bullock, IV, Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2-11-cv-01123)
                     District Judge: Honorable Mitchell S. Goldberg
                      ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    October 2, 2012

                Before: RENDELL, FUENTES and WEIS, Circuit Judges

                             (Opinion filed: October 26, 2012)
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM.

       Andrew J. Bullock IV, proceeding pro se, appeals from the District Court’s

dismissal of his complaint. For the reasons set forth below, we will affirm.

                                             I.

       We will assume the parties’ familiarity with the facts and recite only those

pertinent to this opinion. From 1997 to 2007, Bullock owned a home that was managed

by the Main Street Village Homeowners’ Association (the “Association”). Several

incidents occurred during that time period, ultimately ending with the foreclosure and

Sheriff’s sale of Bullock’s home. As a result, Bullock filed his first complaint against

fifty-six defendants, asserting federal and state law claims. The District Court dismissed

the federal claims for failure to state claim upon which relief could be granted, lack of
                                             3
standing, and because three of them were criminal in nature. The state law claims were

then dismissed pursuant to 28 U.S.C. § 1367. We affirmed. Bullock v. Klein, 341 F.

App’x 812, 816 (3d Cir. 2009).

         Bullock then filed, on February 15, 2001, another action against forty-five of the

same defendants from his previous case. His complaint alleged substantially the same

facts and claims as before, along with a derivative claim on behalf of the Association.

The defendants filed motions to dismiss, arguing that Bullock’s complaint should be

dismissed under the doctrine of res judicata. The District Court agreed. (Dkt. No. 45.)

Bullock timely appealed the dismissal of his complaint.

                                              II.

         We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a district court’s “application of res judicata to bar the appellant’s claims.” Huck ex

rel. Sea Air Shuttle Corp. v. Dawson, 106 F.3d 45, 48 (3d Cir. 1997).

         Bullock argues that “res judicata does not apply” because “[f]raud upon the court

allows any court to treat any previous case as a nullity.” (Appellant’s Br. at 3.) All of the

appellees argue that the District Court properly applied the doctrine of res judicata. We

agree.

         Three elements must be established to prevail on a motion seeking to invoke res

judicata: “(1) a final judgment on the merits in a prior suit involving (2) the same parties

or their privies and (3) a subsequent suit based on the same cause of action.” Duhaney v.

Att’y Gen., 621 F.3d 340, 347 (3d Cir. 2010). Res judicata “bars not only claims that
                                               4
were brought in a previous action, but also claims that could have been brought.” In re

Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008).

        In the prior case, Bullock alleged that certain parties, who are attorneys,

committed a fraud upon the state court that prompted the Sheriff’s sale of his home. The

District Court, while not specifically mentioning “fraud upon the court,” nonetheless

dismissed the claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We then

affirmed the District Court’s decision. In this case, Bullock alleged that the same parties

perpetrated the same fraud, based upon the same set of facts. The District Court, again

without specifically naming the claim, dismissed Bullock’s complaint.

        The District Court properly held that Bullock’s claims are barred by the doctrine

of res judicata. The dismissal of Bullock’s first complaint for failure to state a claim

constituted a final judgment on the merits. See Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394, 399 n.3 (1981). Next, the second case indisputably involved the same

parties as the first. Finally, the subsequent suit that generated this appeal was based on

the same cause of action, as the claims are virtually identical and arose out of the same

set of facts. 1

        As his claims were already pursued in a prior suit, Bullock is precluded from

raising them again. See Allen v. McCurry, 449 U.S. 90, 94 (1980) (“Under res judicata, a


1
  Though Bullock brought a derivative claim on behalf of the Association that was not
asserted in the first action, it does not undercut the application of res judicata, as it could
have been raised in the previous case. Mullarkey, 536 F.3d at 225.

                                               5
final judgment on the merits of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that action.”). Given the

“identity of facts, claims and parties” found between the first and second cases, the

District Court properly dismissed Bullock’s complaint. Huck, 106 F.3d at 51.

       Bullock argues that “the claim of Fraud Upon the Court” has never been

addressed. (Appellant’s Br. at 3.) We disagree. The claim was dismissed pursuant to

Rule 12(b)(6) in his first case, and was barred by the doctrine of res judicata in his

second. In any event, Bullock did not make any allegations that “meet the demanding

standard for fraud upon the court,” which is justified only by “the most egregious

misconduct directed at the court itself,” and must be “supported by clear, unequivocal

and convincing evidence.” Herring v. United States, 424 F.3d 384, 387 (3d Cir. 2005).

                                             III.

       Appellees Atlantic Roofing Corporation and Christopher Conn request that we

impose sanctions on Bullock, pursuant to Federal Rule of Appellate Procedure 38. That

rule permits an award of damages and single or double costs to an appellee if we

determine that the appeal is “frivolous.” Fed. R. App. P. 38. We employ “an objective

standard” in determining whether an appeal is frivolous, and only impose damages under

Rule 38 when an appeal is “wholly without merit.” Mellon Bank Corp. v. First Union

Real Estate Equity & Mortg. Invs., 951 F.2d 1399, 1414 (3d Cir. 1991). Because the

issue of fraud upon the court was not specifically mentioned by the District Court,

Bullock had “at least a colorable argument” in favor of his appeal, and we will not
                                              6
impose Rule 38 damages. Id. Though we will deny the motion for sanctions, we will tax

costs against Bullock under Federal Rule of Appellate Procedure 39. See Fed. R. App. P.

39(a)(2).

                                            IV.

       For the foregoing reasons, we will affirm the decision of the District Court

dismissing Bullock’s complaint. The motion for sanctions is denied.




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