Filing 11

MEMORANDUM (Order to follow as separate docket entry) re 3 MOTION to Dismiss Miscellaneous Document filed by JP Morgan Chase Bank, NA, Trustees, Subrogors Signed by Honorable Malachy E Mannion on 9/25/2024. (gg)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DANNY FORTUNA,
v.

Plaintiff,

: CIVIL ACTION NO. 3:23-mc-143
:
:

(JUDGE MANNION)

JPMORGAN CHASE BANK, N.A.,
et al.,
:
Defendants.

:
MEMORANDUM

Presently before the court is Defendant JPMorgan Chase Bank, N.A.’s
motion to dismiss, (Doc. 3), of Plaintiff Danny Fortuna’s miscellaneous
document titled “Registered Notice of Stipulations of Surety/Subrogee,”
(Doc. 1, p. 1), which allegedly “[R]egister[s]” certain “Notice[s]” and
“Stipulations” concerning the extent of Plaintiff’s liability to certain bank
“Accounts.” Defendant moves to dismiss this count based on Plaintiff’s
failure to state a claim upon which relief may be granted. For the reasons
discussed below, the court will GRANT Defendant’s motion and dismiss with
prejudice.
I.

BACKGROUND
The background of this case is taken from the factual allegations set

forth in Plaintiff’s miscellaneous document, (Doc. 1), which the court must

accept as true on motion to dismiss, as well as the matters of public record
relevant to this case. 1
On December 10, 2019, Defendant filed a complaint in the Superior
Court of New Jersey, Law Division, Passaic County, against Plaintiff,2 Dr.
Produce Realty Limited Liability Company and Dr. Produce, LLC to enforce
Defendant’s rights under two defaulted promissory notes, commercial
guarantees and a security agreement. See generally JPMorgan Chase
Bank, N.A. v. Dr. Produce Realty Limited Liability Company, et al., Docket
No. MER-L-002353-19 (N.J. Super. Ct. Law Div., Dec. 10, 2019)
(hereinafter, “Dr. Produce Realty I”). The Dr. Produce Realty I complaint
alleged that the Plaintiff had “personally and unconditionally guaranteed” Dr.
Produce Realty Limited Liability Company’s obligations to Defendant under
two promissory notes (collectively, the “Promissory Notes,” each a
“Promissory Note”). Id. at 3-4. The first Promissory Note “evidence[d] a loan
in the principal amount of $1,142,915.00, with interest accruing on the unpaid
“To decide a motion to dismiss, courts generally consider only the
allegations contained in the complaint, exhibits attached to the complaint and
matters of public record.” Pension Ben. Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citing 5A C. Wright & A. Miller,
Federal Practice and Procedure §1357, at 299 (2d ed.1990)).
2
Plaintiff’s name at the time of the commencement of the Dr. Produce
Realty I and Dr. Produce Realty II actions was Dario D. Fortuna, which was
later changed to Danny Fortuna on or around May 7, 2021. (See Doc. 1, p.
15).
1

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principal at the fixed rate of 5.150% … on a maturity date of February 2,
2025;” and the second Promissory Note “evidence[d] a loan in principal
amount of $914,332.00 [ ], with interest accruing at a variable rate of 5.098% 3
… on a maturity date of February 2, 2016.” Id. at 2-3. The Dr. Produce Realty
I complaint further sought judgment for damages, including the balance due
on the Promissory Notes’ “principal, interest, default interest, late charges,
prepayment premiums, attorney fees and costs,” and injunctive relief to take
the agreed upon “Collateral” for possession and liquidation for the purpose
of satisfying the obligations owed to Defendant. Id. at 4-5.
On March 3, 2020, Defendant filed a Foreclosure Complaint in the
Superior Court of New Jersey, Chancery Division, Passaic County, against
Plaintiff,4 Dr. Produce Realty Limited Liability Company, Dr. Produce, LLC,
Mukesh Patel, Dilip Patel and State of New Jersey, to enforce its rights to
foreclose on two commercial mortgages securing the Promissory Notes. See
generally JPMorgan Chase Bank, N.A. v. Dr. Produce Realty Limited Liability
Company, et al., Docket No. F-003753-20 (N.J. Super. Ct. Ch. Div., Mar. 3,
2020) (hereinafter, “Dr. Produce Realty II”). The mortgaged properties were
located in the city of Paterson, County of Passaic, New Jersey. Id. at 4. The

3
4

Over the LIBOR Rate.
See supra, note 2.
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Dr. Produce Realty II complaint sought, among other things, to “[a]djudg[e]
that the Mortgage Property be sold according to law to satisfy the amount
due to [Defendant]” and that Defendant “recover possession of Mortgaged
property.” Id. at 7.
On September 1, 2020, and September 2, 2020, the parties – including
both the Plaintiff and Defendant – consented to entries of judgment in favor
of Defendant in both aforementioned New Jersey division actions. See, Dr.
Produce Realty I (Sept. 1, 2020); Dr. Produce Realty II (Sept. 2, 2020). A
final judgment was entered in the total sum of $1,905,256.63, with a writ of
replevin to take possession of the agreed upon collateral, both in favor of
Defendant and against, among others, Plaintiff. Id. Thereafter, on November
30, 2022, the judgment in favor of Defendant and against Plaintiff was
deemed satisfied with a warrant of satisfaction entered in both New Jersey
division actions. See, Dr. Produce Realty I (Nov. 30, 2022); Dr. Produce
Realty II (Nov. 30, 2022).
On February 14, 2023, Plaintiff filed a miscellaneous document titled
“Registered Notice of Stipulations of Surety/Subrogee,” (Doc. 1, p. 1), which
allegedly “[R]egister[s]” certain “Notice[s]” and “Stipulations” concerning the
extent of Plaintiff’s liability to certain “Accounts.” Specifically, the document
begins with a “Registered Notice of Stipulations of Surety/Subrogee,” where
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Plaintiff places the state of Arizona, its governor, the state of New Jersey, its
governor, the state of New York, its governor, the state of Pennsylvania, its
governor, the United States, the Social Security Administration and “its
departments at large” on notice of certain annexed documents, including the
Plaintiff’s identification documents, payoff letters by Defendant’s bank
(JPMorgan Chase) requesting payments on certain bank accounts (ending
in -5001 and -5008), and certain payment activities paying off those accounts
in full by November 2, 2022. (See Doc. 1, pp. 1-25). These final payments of
the bank accounts coincide with the satisfaction of the judgment entered
against Plaintiff for the previously defaulted loans he personally guaranteed.
See supra, p. 4. The above is generally repeated by Plaintiff in his “Second
Registered Notice of Stipulations of Surety/Subrogee.” (Doc. 1, pp. 28-54).
Furthermore, Plaintiff asserts that an equitable suretyship has been
created by his payment on the accounts ending in -5001 and -5008 (relating
to the Promissory Notes), that Defendant (who Plaintiff calls “Creditor”) “shall
immediately exonerate [Plaintiff] as secondarily liable of these Accounts,”
that Plaintiff be “fully release[d] from any and all liability” and that Plaintiff “be
refunded immediately all monies paid to satisfy account liability.” (Doc. 1, pp.
1-2, 29-30). The second notice differs from the first with the addition of an
annexed document for an invoice, generated by Plaintiff, requesting from
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Defendant an “Account Reimbursement” of the accounts ending in -5001 and
-5008 for a total of $2,069,631.11.
Defendant files a motion to dismiss the miscellaneous document
pursuant to Fed. R. of Civ. P. 12(b)(6) for failure to state a claim. (Doc. 3).
Plaintiff filed a response where he stated that “[t]he Miscellaneous
Document, however, is not a complaint but a notice, intended to inform the
court and the opposing party about stipulations and pertinent matters,” that
it “was solely to create an official record, not to cause controversy.” (Doc. 5,
p. 1-2). Plaintiff also asserted that the “Miscellaneous Document addresses
distinct concerns, such as stipulations, surety/subrogee matters, and
potential defaults, separate from those previously addressed in the
[previous] Lawsuit and Foreclosure” between the parties. (Doc. 5, p. 2).
Defendant replied, inter alia, that a final judgment was entered and satisfied
in the previous suit and that Plaintiff’s stated reasons for this action are
inappropriate in this proceeding and such “[s]tipulations, surety/subrogee
matters and potential defaults are inapplicable to this matter.” (Doc. 7).
Moreover, Plaintiff filed a motion for summary judgment given
Defendant’s allegedly “repeated failure to provide a substantial or timely
response to [his] notices demonstrate[ing] acquiescence to the matters
raised therein, in accordance with the principle that silence equates to
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acceptance.” (Doc. 6) Defendant opposed such motion arguing that “there is
no pending complaint, cause of action or claim that would support entry of
judgment against [Defendant] in this matter.” (Doc. 10, p. 4).
II.

LEGAL STANDARD
A complaint must set forth “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This rule
is meant to ensure that defendants are given “‘fair notice of what the ... claim
is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
The allegations must raise a claimant’s right to relief above a speculative
level, so that a claim is “plausible on its face.” Id. at 570. “A claim has facial
plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 at 556). The
complaint, therefore, does not require detailed factual allegations, but the
claimant is required to provide “more than labels and conclusions” or “a
formulaic recitation of the elements” for the claims submitted. Twombly, 550
U.S. at 555; Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010). This
plausibility standard “is not akin to a ‘probability requirement,’ but it asks for

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more than a sheer possibility that a defendant has acted unlawfully.” Id.
(internal citation omitted).
District courts conduct a three-part analysis in determining the
sufficiency of a complaint on a Rule 12(b)(6) motion to dismiss for failure to
state a claim upon which relief can be granted. Malleus v. George, 641 F.3d
560, 563 (3d Cir. 2011).

First, the court must ‘tak[e] note of the elements a plaintiff must
plead to state a claim.’ Second, the court should identify
allegations that, ‘because they are no more than conclusions, are
not entitled to the assumption of truth. Third, ‘whe[n] there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to
an entitlement for relief.’

Id. (alterations in original) (citations omitted) (quoting Iqbal, 556 U.S.
at 664, 675, 679). As part of this inquiry, “the court must ‘accept all factual
allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.’” Bruni v. City of Pittsburgh,
824 F.3d 353, 360 (3d Cir. 2016) (quoting Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009)). When considering a motion to dismiss a pro
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se plaintiff’s complaint, the court reads the complaint more liberally relative
to one drafted by an attorney. See Alston v. Parker, 363 F.3d 229, 233-34
(3d Cir. 2004). “Courts are to construe complaints so as to do substantial
justice ... keeping in mind that pro se complaints in particular should be
construed liberally.” Id. (internal quotation marks and citations omitted).
While pro se complaints “must be held to ‘less stringent standards than
formal pleadings drafted by lawyers,’” Haines v. Kerner, 404 U.S. 519 (1972),
they must still adhere to the Federal Rules of Civil Procedure and contain
“‘sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face’” Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015)
(quoting Iqbal, 556 U.S. at 678). However, the court need not accept
“unsupported conclusions and unwarranted inferences,” nor “legal
conclusion[s] couched as ... factual allegation[s].” Castleberry v. STI Grp.,
863 F.3d 259 (3d Cir. 2017) (quoting Morrow v. Balaski, 719 F.3d 160, 165
(3d Cir. 2013)).
The court should generally grant leave to amend a pleading before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver,
213 F.3d 113, 116-17 (3d Cir. 2000). However, dismissal without leave to
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amend is justified on the grounds of bad faith, undue delay, prejudice, or
futility. Alston, 363 F.3d at 236. “Futility means that the complaint, as
amended, would fail to state a claim upon which relief could be granted.” In
re Merck & Co., Inc. Sec., Derivative & ERISA Litig., 493 F.3d 393, 400 (3d
Cir. 2007) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1434 (3d Cir. 1997)).
Finally, in making a Rule 12(b)(6) determination, the court generally
relies on the complaint, attached exhibits, and matters of public record.
Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007); see also Pension Benefit
Guar. Corp., 998 F.2d at 1196. The court may also consider “undisputedly
authentic document[s] that a defendant attached as an exhibit to a motion to
dismiss if the plaintiff’s claims are based on the [attached] documents.”
Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196
(3d Cir. 1993). However, the court may not rely on other parts of the record
in determining a motion to dismiss, or when determining whether a proposed
amended complaint is futile because it fails to state a claim upon which relief
may be granted. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994).
Thus, a well-pleaded complaint must contain more than mere legal
labels and conclusions. Rather, a pro se plaintiff’s complaint must recite
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factual allegations that are sufficient to raise the plaintiff’s claimed right to
relief beyond the mere level speculation, set forth in a “short and plain”
statement of a cause of action.
Judged against these legal guideposts, this “complaint” 5 is fatally
flawed in a number of respects, as set forth below, and is dismissed with
prejudice given the futility of allowing further amendments thereto.
III.

DISCUSSION
A. The Complaint Violates Rule 8.
At the outset, dismissal of this complaint is warranted because the

complaint plainly fails to comply with Rule 8’s basic injunction that “[a]
pleading that states a claim for relief must contain ... a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). It is well settled that: “[t]he Federal Rules of Civil Procedure
require that a complaint contain ‘a short and plain statement of the claim
showing that the pleader is entitled to relief,’ Fed. R. Civ. P. 8(a)(2), and that
each averment be ‘concise, and direct,’ Fed. R. Civ. P. 8(e)(1).” Scibelli v.
Lebanon County, 219 F. App’x 221, 222 (3d Cir. 2007). Thus, when a
complaint is “illegible or incomprehensible,” id., or when a complaint “is not
only of an unwieldy length, but it is also largely unintelligible,” Stephanatos
5

Which the Plaintiff himself admits it’s not. (Doc. 5, p. 1-2).
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v. Cohen, 236 F. App’x 785, 787 (3d Cir. 2007), both of which are the case
here, an order dismissing a complaint under Rule 8 is clearly appropriate.
See, e.g., Mincy v. Klem, 303 F. App’x 106 (3d Cir. 2008); Rhett v. New
Jersey State Superior Court, 260 F. App’x 513 (3d Cir. 2008); Stephanatos,
236 F. App’x 785; Scibelli, 219 F. App’x 221; Bennett-Nelson v. La. Bd. of
Regents, 431 F.3d 448, 450 n. 1 (5th Cir. 2005).
Dismissal under Rule 8 is also proper when a complaint “left the
defendants having to guess what of the many things discussed constituted
[a cause of action];” Binsack v. Lackawanna County Prison, 438 F. App’x
158 (3d Cir. 2011), or when the complaint, as the one here, is so “rambling
and unclear” as to defy response. Tillio v. Spiess, 441 F.App’x 109 (3d Cir.
2011). Similarly, dismissal is appropriate in “those cases in which the
complaint is so confused, ambiguous, vague, or otherwise unintelligible that
its true substance, if any, is well disguised.” Tillio v. Spiess, 441 F. App’x
109, 110 (3d Cir. 2011) (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d
Cir. 1995) (quotations omitted)); Tillio v. Northland Grp. Inc., 456 F. App’x
78, 79 (3d Cir. 2012). Further, a complaint may be dismissed under Rule 8
when the pleading is simply illegible and cannot be understood. See, e.g.,
Moss v. United States, 329 F. App’x 335 (3d Cir. 2009) (dismissing illegible
complaint); Radin v. Jersey City Medical Center, 375 F. App’x 205 (3d Cir.
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2010); Earnest v. Ling, 140 F. App’x 431 (3d Cir. 2005) (dismissing complaint
where “complaint fails to clearly identify which parties [the plaintiff] seeks to
sue”); Oneal v. U.S. Fed. Prob., CIV.A. 05-5509 (MLC), 2006 WL 758301
(D.N.J. Mar. 22, 2006) (dismissing complaint consisting of approximately 50
pages of mostly-illegible handwriting); Gearhart v. City of Philadelphia
Police, CIV.A.06-0130, 2006 WL 446071 (E.D. Pa. Feb. 21, 2006)
(dismissing illegible complaint).
These principles are applicable here and compel the dismissal of this
complaint. The cryptic nature of the complaint coupled with its failure to
contain a coherent narrative setting forth well-pleaded facts leaves
“defendants having to guess what of the many things discussed constituted
[a cause of action].” Binsack, 438 F. App’x 158. Allowing this miscellaneous
document to proceed as a complaint would leave the Defendant, as it
correctly argues, in the unenviable position of being “unable to respond to
[Plaintiff’s] miscellaneous filing [that] … does not allege a claim; … does not
identify the parties; and … employs terminology that bears no relation to the
previous loan transaction between [Defendant], as lender, and [Plaintiff] as

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guarantor, of two commercial loans.” (Doc. 3-1, p. 6).6 Therefore, Rule 8
compels dismissal of the complaint in its entirety.
B. Dismissal is appropriate under Rule 12(b)(6).
Likewise, Plaintiff’s barely cognizable “claim” of an “Equitable
Suretyship” does not survive a motion to dismiss because it rests upon mere
conclusory statements and no factual allegations. 7 The miscellaneous
document is largely (if not entirely) devoid of well-pleaded facts describing
the nature of this suretyship or how it arose.
The court “must ‘accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.’” Bruni, 824 F.3d at 360. This construction is to be made even more
liberally relative to one drafted by an attorney with a pro se plaintiff’s
complaint, as here. 8 See Alston, 363 F.3d at 233-34. (3d Cir. 2004).

Contrary to Plaintiff’s arguments in its brief opposing the motion to
dismiss (Doc. 5), Defendant’s alleged “[r]epeated lack of response to
correspondence” is not “interpreted as an acquiescence to the issues raised”
but rather as Defendant’s, and this court’s, utter confusion as to what
Plaintiff’s miscellaneous document is driving at.
7
The court does not agree that a claim of equitable suretyship even
applies here.
8
The court reviews this miscellaneous document as a complaint even
though Plaintiff fatally asserts that it “is not a complaint but a notice, intended
to inform the court and the opposing party about stipulations and pertinent
6

(footnote continued on next page)

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However, the court need not accept “unsupported conclusions and
unwarranted inferences,” nor “legal conclusion[s] couched as ... factual
allegation[s].” Castleberry, 863 F.3d at 259 (quoting Morrow, 719 F.3d at
165).
Here, the miscellaneous document does not outline any factual
allegations or transactions, or any supporting law, supporting Plaintiff’s
conclusory assertion that an equitable suretyship exists upon which
Defendant owes him payment. Rather, Plaintiff designates himself as a
“Surety” and notifies various states that “this is an Equitable Suretyship for
which Surety is entitled to require the following non-negotiable and
irrevocable stipulations” 9 which “were violated, [and Defendant] shall
immediately exonerate [Plaintiff] as secondarily liable of these Accounts,
…fully release [Plaintiff] from any and all liability … [and] refund[] all monies

matters,” that it “was solely to create an official record, not to cause
controversy.” (Doc. 5, p. 1-2). Plaintiff would be cautioned that this is not the
proper venue for the federal court and that, in diversity cases before a federal
court such as here, “[t]he Judicial Power shall extend to … Controversies …
between Citizens of different States[.]” U.S. Const. Art. III. §2, Cl. 1.
(emphasis added).
9
This demonstrates a complete misunderstanding of a stipulation. “A
stipulation is an agreement between the parties to treat certain facts or other
matters as settled.” Commonwealth v. Perrin, 291 A.3d 337 (Pa. 2023)
(emphasis added).
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paid to satisfy account liability.” (Doc. 1, p. 3). The aforementioned is the best
the court can make of an otherwise incomprehensible document.
Yet, despite Plaintiff’s varied attempts to (inappropriately) employ legal
terminology and this court’s generous liberal construction, the filed
miscellaneous document still fails to state a claim and cannot be reasonably
read to form a basis for relief. Accordingly, it is to be dismissed under Rule
12(b)(6).
C. Dismissal is with prejudice.
The court recognizes that in civil rights cases, pro se plaintiffs often
should be afforded an opportunity to amend a complaint before the complaint
is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete
Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave
to amend would be futile or result in undue delay. Alston, 363 F.3d at 235. In
this case, though not even a civil rights case, affording Plaintiff another
opportunity would be futile since any set of factual allegations Plaintiff may
conjure up between himself and Defendant would unavoidably relate to, or
arise out of, the commercial loan transactions between them, which has
already been litigated in the New Jersey state courts and would effectively
be barred by res judicata.

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Collateral estoppel, or issue preclusion, bars the re-litigation of an
issue identical to that addressed in a prior action. Res judicata, or claim
preclusion, is broader in effect and “prohibits reexamination not only of
matters actually decided in the prior case, but also those that the parties
might have, but did not assert in that action.” Edmundson v. Borough of
Kennett Square, 4 F.3d 186, 189 (3d Cir.1993). Plaintiff’s claim, while
probably subject to both collateral estoppel and res judicata, falls more
appropriately into the broader category of res judicata. A federal court’s
application of claim preclusion (or issue preclusion) based on a prior state
court judgment is grounded in the “federal full faith and credit” statute which
provides that state judicial proceedings “shall have the same full faith and
credit in every court within the United States ... as they have by law or usage
in the courts of such State ... from which they are taken.” 28 U.S.C. §1738;
accord Marrese v. Amer. Academy of Orthopaedic Surgeons, 470 U.S. 373,
380 (1985) (observing that “[t]he preclusive effect of a state court judgment
in a subsequent federal lawsuit generally is determined by the full faith and
credit statute,” which “directs a federal court to refer to the preclusion law of
the State in which judgment was rendered[ ]”). Consequently, in determining
whether any judgments previously rendered against Plaintiff in the state
courts of New Jersey have preclusive effect in this action, we must consider
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how New Jersey courts would apply the doctrines of claim preclusion and
issue preclusion in the context of this case. See Turner v. Crawford Square
Apartments III, L.P., 449 F.3d 542, 548 (3d Cir. 2006) (applying Pennsylvania
law to determine the preclusive effect of a prior state court judgment) (Lance
v. Dennis, 546 U.S. 459, 466 (2006)).
New Jersey’s res judicata jurisprudence has three basic elements: (1)
the judgment in the prior action must be valid, final, and on the merits; (2)
the parties in the later action must be identical to or in privity with those in
the prior action; and (3) the claim in the later action must grow out of the
same transaction or occurrence as the claim in the earlier one. Watkins v.
Resorts Int’l Hotel and Casino, Inc., 124 N.J. 398, 410, 591 A.2d 592 (1991)
(noting that New Jersey and federal res judicata have same elements). 10
Analyzing the elements described above, Plaintiff’s suit – with whichever
narrative Plaintiff decides on – would be clearly and unavoidably barred.
First, the previous actions in the New Jersey Superior Court (in both
the Law and Chancery Divisions) resulted in a consented to order by both
Res judicata under Third Circuit requires: (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. In re Mullarkey, 536
F.3d 215, 225 (3d Cir. 2008); see also Board of Trustees v. Centra, 983 F.2d
495, 504 (3d Cir. 1992); Allen v. McCurry, 499 U.S. 90, 94 (1980) (“a 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.”).
10

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Plaintiff and Defendant, whereby the parties consented to entries of
judgment in favor of Defendant. See Dr. Produce Realty I (Sept. 1, 2020);
Dr. Produce Realty II (Sept. 2, 2020). A final judgment on the merits was
entered in those prior suits for a money judgment in the amount of
$1,905,256.63, with a writ of replevin to take possession of the agreed upon
collateral, both in favor of Defendant and against, among others, Plaintiff. Id.
Above that, such judgment was deemed satisfied with a warrant of
satisfaction entered in both New Jersey division actions when the final
payments towards those accounts were made. See, Dr. Produce Realty I
(Nov. 30, 2022); Dr. Produce Realty II (Nov. 30, 2022); (Doc. 1, pp. 23, 25,
50, 52).
Second, there is identity of parties sufficient to bar relitigation of
Plaintiff’s claim. Res judicata applies when the same parties or their privities
were involved in the prior suit. Watkins, 124 N.J. at 410; see also In re
Mullarkey, 536 F.3d at 225. In other words, a party must have either been a
participant in the prior adjudication or have been so intimately involved in
that adjudication that it is fair and equitable to require that party to accept the
earlier judgment. Richards v. Jefferson County, Ala., 517 U.S. 793, 797
(1996). Thus, whether the parties’ positions were reversed across the “v.” in
the prior adjudication, as here, it does not affect those parties’ participation
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in such an adjudication nor their opportunity to raise claims and counter
claims. See Allen, 499 U.S. at 94; see also Zhang v. Southeastern Financial
Group, Inc., 980 F.Supp. 787, 794 (E.D.Pa.1997) (res judicata “‘will not be
defeated by minor differences of form, parties or allegations’ where the
‘controlling issues have been resolved in a prior proceeding in which the
present parties had an opportunity to appear and assert their rights.’”)
(citation omitted). Moreover, whether a party was a participant in a prior
adjudication is a simple determination of looking up the parties and seeing if
the names are the same. Thus, despite the Plaintiff’s changed name since
the commencement of the New Jersey actions, 11 he – as well as Defendant
– very much remains the same party for the purposes of res judicata.
Third, the current (and potential if Plaintiff is given leave to amend)
causes of actions grow out of the same transaction or occurrence as the
claims in the earlier New Jersey ones. Watkins, 124 N.J. at 410. 12 In each

See supra, notes 2 and 4.
Even under the Third Circuit’s transactional approach, Plaintiff’s
causes of actions would be considered the same because focusing, as the
Third Circuit instructs, not on a mechanical application of the res judicata test
but rather on its ultimate purpose of requiring a plaintiff to present all claims
arising out of the same occurrence in a single suit, see Board of Trustees,
983 F.2d at 504, it is clear that Plaintiff’s claim may not be pursued here, a
second time, when previously given the opportunity. See Davis v. United
States Steel Supply, Etc., 688 F.2d 166, 174 (3d Cir.1982) (stating that
purpose of res judicata is to preserve judicial resources, avoid repetitive
11
12

(footnote continued on next page)

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case, whether the repayment of the commercial loans sought by Defendant
in the previous New Jersey actions, or the limit of liability and equitable
suretyship13 sought from Plaintiff in this action,14 the cause of each action
grows out of the same commercial loan transactions between the parties.
New Jersey applies the “entire controversy” doctrine which requires “the
adjudication of a legal controversy in one litigation in only one court
[whereby] all parties involved in a litigation should at the very least present
in that proceeding all of their claims and defenses that are related to the
underlying controversy.” Jackson v. Midland Funding LLC, 2012 WL 505919,
at *2 (3d Cir. 2012) (quoting DiTrolio v. Antiles, 662 A.2d 494, 502 (N.J.
1995)). Thus, Plaintiff should have raised any further claims or defenses
related to the commercial transactions with Defendant when he was before
the New Jersey court. Barring Plaintiff upholds the purpose of the doctrine to
promote fairness and efficiency by avoiding piecemeal decisions and
litigation. Ditrolio, 662 A.2d at 502. Any claim that was not brought as part of
the initial litigation may not be brought at a later time. Id. at 508. Accordingly,

litigation, and encourage parties to plead all grounds for relief in a single
lawsuit).
13
Again, the court does not agree that a claim of equitable suretyship
even applies here.
14
The court reaffirms its finding that the miscellaneous document is
dismissible under Rule 12(b)(6) and for violating Rule 8.
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the third element is met and res judicata would operate to bar this action.
Plaintiff may not avail himself of a second bite at the apple in a different
jurisdiction. Rhodes v. Jones, 351 F.2d 884, 887 (8th Cir. 1965) (a party
cannot escape the operation of res judicata where he merely varies the basis
of jurisdiction in a subsequent action).
Thus, given the unavoidable res judicata bar Plaintiff faces, granting
him leave to amend would be futile and result in undue delay. Accordingly,
this pro se complaint shall be dismissed with prejudice and the Plaintiff’s
motion for summary judgment shall be denied as moot.
IV.

CONCLUSION
Based on the foregoing, the court will GRANT Defendant’s motion to

dismiss (Doc. 3) and DENY Plaintiff’s motion for summary judgment as moot.
An appropriate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
DATE: September 25, 2024

23-143-01

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