17‐3161‐cv Salvador v. Touro College, et al.
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 25th day of September, two thousand eighteen.
PRESENT: DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges, JOHN F. KEENAN, District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
LEODEGARIO D. SALVADOR, Plaintiff‐Appellant,
v. 17‐3161‐cv
TOURO COLLEGE AND UNIVERSITY SYSTEMS, TOURO COLLEGE JACOB D. FUCHSBERG LAW CENTER, DR. ALLAN KADISH, LAWRENCE RAFUL, SUSAN THOMPSON, DANIEL DERBY, PAULA KUTCH, MICHELE KAMINSKI, YELENA ELKINA, PROVOST, TOURO UNIVERSITY & COLLEGE VICE PRESIDENT and ALL
* Judge John F. Keenan, of the United States District Court for the Southern District of New York, sitting by designation. TOURO UNIVERSITY AND COLLEGE BOARD OF GOVERNORS, Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PLAINTIFF‐APPELLANT: LEODEGARIO D. SALVADOR, pro se, Las Vegas, Nevada.
FOR DEFENDANTS‐APPELLEES: MICHAEL NEWMAN, Touro College, New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Azrack, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Leodegario D. Salvador appeals from a judgment of the
district court entered September 21, 2017, granting defendants‐appelleesʹ motion to
dismiss. The district court set forth its reasoning in a memorandum and order filed
September 18, 2017.
We review the grant of a motion to dismiss de novo, ʺaccepting as true all
factual claims in the complaint and drawing all reasonable inferences in the plaintiffʹs
favor.ʺ Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir. 2013). We also review de
novo a district courtʹs application of res judicata. Brown Media Corp. v. K&L Gates, LLP,
854 F.3d 150, 157 (2d Cir. 2017). We assume the partiesʹ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
‐ 2 ‐ A. Background
In 2012, Salvador sued Touro College and Touro College Jacob D.
Fuchsberg Law Center (together, ʺTouroʺ) in state court for breach of contract,
fraudulent inducement, negligence, and negligent misrepresentation for denying him
an LLM degree. He alleges that Touro admitted him to its LLM program with the
knowledge that he received an online law degree, rather than a law degree from an
overseas law school, but subsequently denied him a degree on that basis.
The state court dismissed his complaint in part, but on appeal the First
Department ordered the dismissal of the entire complaint. See Salvador v. Touro Coll.,
139 A.D.3d 1 (1st Depʹt 2016). Salvador, pro se, then sued Touro in the district court
asserting the same causes of action based on the same facts. In addition to the original
defendants, Salvador added several of Touroʹs officers and employees, and he also
added a federal law claim related to his student loans. The district court dismissed the
state law claims as barred by res judicata and the federal law claim for failure to state a
claim, and entered judgment accordingly. This appeal followed.
B. Discussion
1. Res Judicata and Collateral Estoppel
We affirm. First, Salvadorʹs claims against Touro are barred by res
judicata. The Full Faith and Credit Act, 28 U.S.C. § 1738, ʺrequires federal courts to
accord state judgments the same preclusive effectʺ those judgments would have in the
‐ 3 ‐ courts of the rendering state.ʺ Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 93 (2d
Cir. 2005). Thus, we must apply New York res judicata law, which ʺgives binding effect
to the judgment of a court of competent jurisdiction and prevents the parties to an
action, and those in privity with them, from subsequently relitigating any questions that
were necessarily decided therein.ʺ Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 277 (1970)
(internal quotation marks omitted). ʺ[I]f claims arise out of the same ʹfactual groupingʹ
they are deemed to be part of the same cause of action and the later claim will be barred
without regard to whether it is based upon different legal theories or seeks different or
additional relief.ʺ Davidson v. Capuano, 792 F.2d 275, 278 (2d Cir. 1986) (applying New
York law) (internal quotation marks omitted).
The state trial court orders dismissing Salvadorʹs claims constitute a final
judgment on the merits. Although the state court did not specify whether its dismissal
was based on New York Civil Practice Law and Rules (ʺCPLRʺ) §§ 3211(a)(1) or (a)(7),
dismissal under either provision would result in a judgment on the merits because
Salvadorʹs new complaint raises identical causes of action based on the same facts. See
Kalter v. Riversource Life Ins. Co., 142 A.D.3d 1141, 1142 (2d Depʹt 2016) (§ 3211(a)(1)
dismissal is final judgment on the merits); Blake v. City of N.Y., 144 A.D.3d 1071, 1073 (2d
Depʹt 2016) (dismissal under § 3211(a)(7) ʺhas preclusive effect as to ʹa new complaint
for the same cause of action which fails to correct the defect or supply the omission
determined to exist in the earlier complaintʹʺ (quoting 175th E. 74th Corp. v. Hartford Acc.
‐ 4 ‐ & Indem. Co., 51 N.Y.2d 585, 590 n.1 (1980))). Here, the two suits involve identical facts
or the ʺsame factual grouping,ʺ Davidson, 792 F.2d at 278 (internal quotation marks
omitted), and thus are ʺdeemed to be part of the same cause of action.ʺ Id. Moreover,
because Touro College and Touro College Jacob D. Fuchsberg Law Center were parties
to the prior action, res judicata bars Salvadorʹs state law claims against those defendants.
It is not clear whether Salvadorʹs claims against the other defendants are
barred by res judicata, as there may be a question as to whether they were in privity with
Touro. Compare Bayer v. City of New York, 115 A.D.3d 897, 897–99 (2d Depʹt 2014)
(employees not previously named in prior suit against their employer ʺ[were] entitled
to rely upon the beneficial dispositionʺ of that action because they were ʺemployees of
the Department whose conduct formed the basis of the plaintiffʹs allegations in the
[earlier] actionʺ), with Farren v. Lisogorsky, 87 A.D.3d 713, 714 (2d Depʹt 2011)
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17‐3161‐cv Salvador v. Touro College, et al.
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 25th day of September, two thousand eighteen.
PRESENT: DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges, JOHN F. KEENAN, District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
LEODEGARIO D. SALVADOR, Plaintiff‐Appellant,
v. 17‐3161‐cv
TOURO COLLEGE AND UNIVERSITY SYSTEMS, TOURO COLLEGE JACOB D. FUCHSBERG LAW CENTER, DR. ALLAN KADISH, LAWRENCE RAFUL, SUSAN THOMPSON, DANIEL DERBY, PAULA KUTCH, MICHELE KAMINSKI, YELENA ELKINA, PROVOST, TOURO UNIVERSITY & COLLEGE VICE PRESIDENT and ALL
* Judge John F. Keenan, of the United States District Court for the Southern District of New York, sitting by designation. TOURO UNIVERSITY AND COLLEGE BOARD OF GOVERNORS, Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PLAINTIFF‐APPELLANT: LEODEGARIO D. SALVADOR, pro se, Las Vegas, Nevada.
FOR DEFENDANTS‐APPELLEES: MICHAEL NEWMAN, Touro College, New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Azrack, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Leodegario D. Salvador appeals from a judgment of the
district court entered September 21, 2017, granting defendants‐appelleesʹ motion to
dismiss. The district court set forth its reasoning in a memorandum and order filed
September 18, 2017.
We review the grant of a motion to dismiss de novo, ʺaccepting as true all
factual claims in the complaint and drawing all reasonable inferences in the plaintiffʹs
favor.ʺ Fink v. Time Warner Cable, 714 F.3d 739, 740–41 (2d Cir. 2013). We also review de
novo a district courtʹs application of res judicata. Brown Media Corp. v. K&L Gates, LLP,
854 F.3d 150, 157 (2d Cir. 2017). We assume the partiesʹ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
‐ 2 ‐ A. Background
In 2012, Salvador sued Touro College and Touro College Jacob D.
Fuchsberg Law Center (together, ʺTouroʺ) in state court for breach of contract,
fraudulent inducement, negligence, and negligent misrepresentation for denying him
an LLM degree. He alleges that Touro admitted him to its LLM program with the
knowledge that he received an online law degree, rather than a law degree from an
overseas law school, but subsequently denied him a degree on that basis.
The state court dismissed his complaint in part, but on appeal the First
Department ordered the dismissal of the entire complaint. See Salvador v. Touro Coll.,
139 A.D.3d 1 (1st Depʹt 2016). Salvador, pro se, then sued Touro in the district court
asserting the same causes of action based on the same facts. In addition to the original
defendants, Salvador added several of Touroʹs officers and employees, and he also
added a federal law claim related to his student loans. The district court dismissed the
state law claims as barred by res judicata and the federal law claim for failure to state a
claim, and entered judgment accordingly. This appeal followed.
B. Discussion
1. Res Judicata and Collateral Estoppel
We affirm. First, Salvadorʹs claims against Touro are barred by res
judicata. The Full Faith and Credit Act, 28 U.S.C. § 1738, ʺrequires federal courts to
accord state judgments the same preclusive effectʺ those judgments would have in the
‐ 3 ‐ courts of the rendering state.ʺ Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 93 (2d
Cir. 2005). Thus, we must apply New York res judicata law, which ʺgives binding effect
to the judgment of a court of competent jurisdiction and prevents the parties to an
action, and those in privity with them, from subsequently relitigating any questions that
were necessarily decided therein.ʺ Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 277 (1970)
(internal quotation marks omitted). ʺ[I]f claims arise out of the same ʹfactual groupingʹ
they are deemed to be part of the same cause of action and the later claim will be barred
without regard to whether it is based upon different legal theories or seeks different or
additional relief.ʺ Davidson v. Capuano, 792 F.2d 275, 278 (2d Cir. 1986) (applying New
York law) (internal quotation marks omitted).
The state trial court orders dismissing Salvadorʹs claims constitute a final
judgment on the merits. Although the state court did not specify whether its dismissal
was based on New York Civil Practice Law and Rules (ʺCPLRʺ) §§ 3211(a)(1) or (a)(7),
dismissal under either provision would result in a judgment on the merits because
Salvadorʹs new complaint raises identical causes of action based on the same facts. See
Kalter v. Riversource Life Ins. Co., 142 A.D.3d 1141, 1142 (2d Depʹt 2016) (§ 3211(a)(1)
dismissal is final judgment on the merits); Blake v. City of N.Y., 144 A.D.3d 1071, 1073 (2d
Depʹt 2016) (dismissal under § 3211(a)(7) ʺhas preclusive effect as to ʹa new complaint
for the same cause of action which fails to correct the defect or supply the omission
determined to exist in the earlier complaintʹʺ (quoting 175th E. 74th Corp. v. Hartford Acc.
‐ 4 ‐ & Indem. Co., 51 N.Y.2d 585, 590 n.1 (1980))). Here, the two suits involve identical facts
or the ʺsame factual grouping,ʺ Davidson, 792 F.2d at 278 (internal quotation marks
omitted), and thus are ʺdeemed to be part of the same cause of action.ʺ Id. Moreover,
because Touro College and Touro College Jacob D. Fuchsberg Law Center were parties
to the prior action, res judicata bars Salvadorʹs state law claims against those defendants.
It is not clear whether Salvadorʹs claims against the other defendants are
barred by res judicata, as there may be a question as to whether they were in privity with
Touro. Compare Bayer v. City of New York, 115 A.D.3d 897, 897–99 (2d Depʹt 2014)
(employees not previously named in prior suit against their employer ʺ[were] entitled
to rely upon the beneficial dispositionʺ of that action because they were ʺemployees of
the Department whose conduct formed the basis of the plaintiffʹs allegations in the
[earlier] actionʺ), with Farren v. Lisogorsky, 87 A.D.3d 713, 714 (2d Depʹt 2011)
(concluding that settlement between customer and pharmacy did not bar the customerʹs
later suit against individual pharmacist because customer ʺnever asserted any claim
against the defendant in his capacity as an employee of [the pharmacy], and seek[s]
here to hold him liable solely in his professional capacity as a pharmacistʺ).
We need not decide the privity question, however, as the claims against
the remaining defendants are clearly barred by collateral estoppel. See Leon v. Murphy,
988 F.2d 303, 308 (2d Cir. 1993) (ʺWe may affirm . . . on any basis for which there is a
record sufficient to permit conclusions of law, including grounds upon which the
‐ 5 ‐ district court did not rely.ʺ). New York law provides that ʺissue preclusion occurs if (1)
the issue in question was actually and necessarily decided in a prior proceeding, and (2)
the party against whom the doctrine is asserted had a full and fair opportunity to
litigate the issue in the first proceeding.ʺ Vargas v. City of N.Y., 377 F.3d 200, 205–06 (2d
Cir. 2004) (internal quotations omitted). ʺ[C]ollateral estoppel [may] be invoked, either
defensively or offensively by a nonparty to the prior litigation.ʺ Buechel v. Bain, 97
N.Y.2d 295, 315–16 (2001). Therefore, all of the defendants may assert this defense as
long as the other elements are met.
Because Salvador raised identical claims based on the same facts as those
alleged in the 2012 suit, the issues, namely whether his allegations were sufficient to
state claims, were identical. Thus, the First Department ʺactually and necessarilyʺ
decided whether Salvadorʹs allegations were legally sufficient to state any of his
asserted claims. See Halyalkar v. Bd. of Regents, 72 N.Y.2d 261, 268 (1988) (ʺFor a question
to have been actually litigated . . . , it must have been properly raised by the pleadings
or otherwise placed in issue and actually determined in the prior proceeding.ʺ); Kret v.
Brookdale Hosp. Med. Ctr., 93 A.D.2d 449, 458 (2d Depʹt 1983) (holding that issue was
necessarily decided where decision on that issue was required to reach verdict and
contrary decision in subsequent litigation would contradict that verdict).
Further, Salvador had a full and fair opportunity to litigate these issues.
ʺ[A] determination whether a full and fair hearing was provided requires consideration
‐ 6 ‐ of the realities of the [prior] litigation.ʺ Chartier v. Marlin Mgmt., LLC, 202 F.3d 89, 94 (2d
Cir. 2000) (quoting New York v. Sokol, 113 F.3d 303, 307 (2d Cir. 1997) (alternations in
original). ʺFactors to be considered include, inter alia: 1) the nature of the forum and the
importance of the claim in the prior litigation; 2) the incentive to litigate and the actual
extent of litigation in the prior forum; and 3) the foreseeability of future litigation
(because of its impact on the incentive to litigate in the first proceeding).ʺ Id. (quoting
Sokol, 113 F.3d at 307. Here, Salvador pursued the same remedies in state court.
Furthermore, he was counseled and filed opposition briefs in the state court action. See,
e.g., Matter of Yao, 231 A.D.2d 346, 348 (1st Depʹt 1997) (noting that litigant who had
opportunity to oppose motion to dismiss had full and fair opportunity to litigate).
Salvador was able to oppose the motion to dismiss, and he received the benefit of a full
appellate process. Therefore, the state courtʹs dismissal of Salvadorʹs claims precludes
his assertion of identical issues in this action.
2. Section 1983 Claim
The district court correctly dismissed Salvadorʹs § 1983 claim relating to
his loans. Salvador alleged no facts showing that Touro or any other defendant was a
state actor or that their conduct was ʺʹfairly attributableʹ to the state.ʺ Tancredi v. Metro.
Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (internal quotation marks omitted). He did
not allege that the state ʺcoercedʺ Touro to return the student loans, that the state was
ʺentwinedʺ with Touroʹs actions, or that Touro was a willful participant in state activity.
‐ 7 ‐ Id. at 313. Rather, he alleged that Touro and its employees acted of their own volition.
Therefore, his § 1983 claim fails.
3. Leave to Amend
Finally, the district court did not abuse its discretion when it denied leave
to amend the complaint. A pro se plaintiff should be afforded leave to amend following
a Federal Rule of Civil Procedure 12(b)(6) dismissal ʺwhen a liberal reading of the
complaint gives any indication that a valid claim might be stated.ʺ Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks omitted). Here, Salvadorʹs
complaint does not provide any indication that a valid claim could be stated. His state
law claims are barred by res judicata and collateral estoppel and he alleged that
defendants acted of their own volition related to the student loan allegations. His
complaint does not suggest any state or federal government involvement. Thus,
amendment would be futile. See id.
We have reviewed plaintiffʹs remaining arguments on appeal and
conclude they are without merit. Accordingly, we AFFIRM the judgment of the district
court.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk
‐ 8 ‐