     Case: 14-60742      Document: 00513091627         Page: 1    Date Filed: 06/24/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 14-60742                           June 24, 2015
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
ROBERT W. CLAUNCH,

                                                  Plaintiff - Appellant
v.

FIA CARD SERVICES, N.A.; BANK OF AMERICA CORPORATION,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC. No. 1:12-CV-85


Before KING, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Pro se Plaintiff Robert Claunch appeals the district court’s grant of
summary judgment in favor of Defendants FIA Card Services, N.A. (“FIA”) and
Bank of America Corp. We AFFIRM.
                                             I.
       Claunch sued FIA and its parent company, Bank of America Corp., in
relation to credit card accounts that FIA issued to him and his wife. Claunch
alleged that FIA violated, among other things, the Truth in Lending Act, 15



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 14-60742
U.S.C. §§ 1601, et seq., by fraudulently enrolling the accounts in a debt
cancellation product called Credit Protection Plus (“CPP”) without his consent.
Claunch and his wife were also members of a consolidated class action suit in
the U.S. District Court for the Northern District of California against FIA and
Bank of America Corp, which involved numerous claims related to CPP,
including allegations that the defendants violated the Truth in Lending Act by
enrolling customers in CPP. See generally Order Granting Final Approval of
Class Action Settlement, In re Bank of Am. Credit Prot. Mrktg. & Sales
Practices Litig., No. 3:11-MD-2269 (N.D. Cal. Jan. 16, 2013), ECF No. 97
(hereinafter “Order Approving Settlement”). In that action, in January 2013,
the district court entered an order approving a class action settlement. Id.
       In the present case, in April 2014, the Defendants filed a motion for
summary judgment arguing that Claunch and his wife were members of the
class action and settlement in the Northern District of California, and that
Claunch’s claims were therefore barred by the settlement and principles of res
judicata. The district court granted the Defendants’ motion for judgment on
those grounds. Claunch timely appealed. He argues on appeal that summary
judgment should not have been granted because he did not receive notice of the
class action until April 8, 2014, and at that time, he stated his intent to opt out
of the class action. 1
                                             II.
       “A judgment or court-approved settlement entered in a properly certified
class action generally will bind an absent class member.” Penson v. Terminal
Transp. Co., 634 F.2d 989, 992 (5th Cir. Unit B. Jan. 1981); see also Taylor v.
Sturgell, 553 U.S. 880, 894 (2008); Cooper v. Fed. Reserve Bank of Richmond,


       1 Claunch also argues on appeal that a court reporter’s certification should have been
struck from the district court record. Because granting this relief would not affect the
outcome of this appeal, we do not address this request further.
                                             2
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                                     No. 14-60742
467 U.S. 867, 874 (1984). For absent class members to be bound, due process
requires that they receive notice and an opportunity to participate in the
litigation. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811–12 (1985). “The
notice must be the best practicable, reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.” Id. at 812 (citation
and internal quotation marks omitted).
       Here, Claunch and his wife were members of the Bank of America CPP
class action in the Northern District of California. 2 The undisputed summary
judgment evidence demonstrates that all class members in general, and
Claunch and his wife in particular, were individually mailed notice at their
known mailing addresses. 3 This level of individualized notice satisfies the
requirements of due process. See Dusenbery v. United States, 534 U.S. 161,
169 & n.4 (2002). It is not determinative that Claunch states he did not
actually receive the mailing.        Due process in this context requires notice
“reasonably calculated” to apprise a party of an action; it does not require
“actual notice.” Id. at 170 (citing Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 315 (1950)). Accordingly, because Claunch and his wife were
members of the class at the time of the Northern District of California’s order



       2 The class was certified as “all people in the United States who were enrolled in a
Credit Protection program issued by FIA Card Services, N.A., a subsidiary of Bank of
America Corporation, between January 1, 2006 and July 17, 2012.” Order Approving
Settlement, No. 3:11-MD-2269, at 1. Claunch and his wife were enrolled in CPP from 2007
to 2011. They were not listed among those individuals that the Northern District of
California found had opted out of the class action. See id. at Ex. A, at 2.
       3 The case manager in the class action averred that Bank of America and FIA provided
her with the names and addresses of the class members, including Robert and Louise
Claunch. She stated that notice was mailed to the class members, including Robert and
Louise Claunch. She further stated that the notices sent to Robert and Louise Claunch were
not returned by the United States Postal Service and a request for exclusion from the class
was not received from Robert or Louise Claunch.
                                            3
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                                       No. 14-60742
granting final approval of the class settlement, they are bound by the terms of
that order and settlement. See Order Approving Settlement, No. 3:11-MD-
2269. 4
       The    order     and    settlement         provide   that   all    class   members
“unconditionally, fully, and finally release[] and forever discharge[]” the
defendants from all claims arising out of, related to, or in connection with
marketing of and enrollment in CPP. Id. at 4; Settlement Agreement, No. 3:11-
MD-2269 (N.D. Cal. July 12, 2012), ECF No. 72-1, at 20 (defining “Released
Claims”). To enforce the settlement, the order enjoins all class members from
“commencing, instituting, continuing, pursuing, maintaining, prosecuting, or
enforcing any” of the released claims. Order Approving Settlement, No. 3:11-
MD-2269, at 4.        Claunch’s claims in this action are in connection with
enrollment of his and his wife’s accounts in CPP. Therefore, the claims were
previously released through the settlement agreement in the class action, and
the order in that action enjoins Claunch from continuing to pursue the claims
through the present case. See Penson, 634 F.2d at 992. In addition, because
Claunch was a member of the class action, res judicata also bars him from
maintaining the present case, which asserts claims against the same
defendants and that arise out of the same nucleus of operative facts as the class
action. See Cooper, 467 U.S. at 874 (providing that res judicata applies to bar
claims of absent class members); Southmark Corp. v. Coopers & Lybrand, 163
F.3d 925, 934 (5th Cir. 1999) (listing elements of res judicata). Accordingly,
summary judgment was properly granted in favor of the Defendants.
       AFFIRMED.




       4 Claunch alleges that he and his wife have since stated their intent to opt out of the
class. This does not change the decisive fact that they were members of the class at the time
the settlement was entered into and approved by the court.
                                              4
