James Dunlap v. Cottman Transmissions System
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cv-00272-AWA-LRL. Copies to all parties and the district court. . Mailed to: James Dunlap. [16-2318]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES M. DUNLAP,
Plaintiff - Appellant,
COTTMAN TRANSMISSIONS SYSTEMS, LLC; TODD P. LEFF,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Arenda L. Wright Allen, District Judge. (2:11-cv-00272-AWA-LRL)
Submitted: April 27, 2017
Decided: May 11, 2017
Before DIAZ, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James M. Dunlap, Appellant Pro Se. Benjamin B. Reed, James Charles Rubinger, PLAVE
KOCH PLC, Reston, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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James M. Dunlap appeals from the district court’s order granting summary
judgment to Defendants and finding Dunlap’s claims barred by res judicata. On appeal,
Dunlap makes several arguments as to why res judicata was inappropriately applied.
However, except for his contention that the parties to prior, related suits differ from the
current parties, Dunlap’s claims are raised for the first time on appeal, and we decline to
consider them. Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (noting that issues
raised for first time on appeal generally are not considered absent exceptional
circumstances, not present here). After an examination of the privity of the parties in the
current and former lawsuits, we affirm.
Under Pennsylvania law, * “[a]ny final, valid judgment on the merits by a court of
competent jurisdiction precludes any future suit between the parties or their privies on the
same cause of action.” Balent v. City of Wilkes-Barre, 669 A.2d 309, 313 (Pa. 1995). Here,
as Dunlap correctly identifies, the parties to the proceedings in the prior lawsuits are not
the same as in the present action. However, claim preclusion/res judicata is applied
whenever “there is a close or significant relationship between successive defendants.”
Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 966 (3d Cir. 1991) (quoting Gambocz v.
Yelencsics, 468 F.2d 837, 841 (3d Cir. 1972)). The definition of privity is especially broad
The preclusive effect of the prior cases is governed by Pennsylvania law because
each of the prior lawsuits was brought in the United States District Court for the Eastern
District of Pennsylvania. Q Int’l Couriers, Inc. v. Smoak, 441 F.3d 214, 218 (4th Cir. 2006)
(preclusive effect of judgment rendered by a federal district court determined by the law of
the state where that federal district court sits).
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when, as here, res judicata is invoked against a plaintiff who has repeatedly asserted
essentially the same claims against different defendants. Bruszewski v. United States, 181
F.2d 419, 422 (3d Cir. 1950).
Given the circumstances in this case, we find that two
companies, both wholly owned subsidiaries of the same company, are in privity with one
another and that the president of both subsidiary companies and the parent company is also
in privity with the subsidiaries. Certainly, all the parties have a close and significant
relationship, and Dunlap does not seriously dispute this. See Bush v. E. Unif. Co., 51 A.2d
731, 732 (1947) (shareholder of defendant corporation in privity with corporation);
Lubrizol, 929 F.2d at 966 (wholly-owned affiliate in privity with parent corporation);
Jackson v. Dow Chem. Co., 902 F. Supp. 2d 658, 670-71 (E.D. Pa. 2012) (employees,
affiliates, and counsel were in privity with original corporate defendants), aff’d, 518 Fed.
Appx. 99 (3d Cir. 2013); Greenberg v. Potomac Health Sys., Inc., 869 F. Supp. 328, 331
(E.D. Pa. 1994) (subsidiary and shared corporate officers in privity with parent
Accordingly, we affirm the order of the district court. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
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