Albert Burgess, Jr. v. eBay , 706 F. App'x 57 ( 2017 )

DLD-338 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2217
___________
ALBERT CHARLES BURGESS, JR.,
Appellant
v.
EBAY CORPORATION; PAYPAL CORPORATION
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 1:17-cv-00128)
District Judge: Honorable Richard G. Andrews
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
August 17, 2017
Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges
(Opinion filed: August 30, 2017)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
Albert Charles Burgess, Jr., proceeding pro se, appeals the order of the United
States District Court for the District of Delaware dismissing his complaint against Ebay
Corporation (“Ebay”) and PayPal Corporation (“PayPal”). For the reasons set forth
below, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4;
3d Cir. I.O.P. 10.6.
In November 2009, Burgess was convicted following a jury trial in the Western
District of North Carolina of two felonies involving the receipt and possession of
materials depicting minors engaged in sexually explicit conduct. Burgess was sentenced
to 292 months of imprisonment followed by supervised release for life. United States v.
Burgess, 684 F.3d 445 (4th Cir. 2012). In February 2017, Burgess filed a complaint in
the District Court of Delaware. Burgess alleged that that after he closed his accounts
with Ebay and PayPal he was charged with a membership to a child pornography
website. Burgess asserted that the defendants unlawfully partnered with law enforcement
and provided information regarding his accounts that led to his prosecution. Burgess
alleged violations of his constitutional and civil rights in addition to breach of contract.
The District Court screened Burgess’ complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)
and dismissed the action as legally frivolous. The District Court determined that
Burgess’ claims were barred by the statute of limitations and res judicata, also called
claim preclusion. Burgess sought reconsideration, but the District Court denied Burgess’
motion. Burgess appeals from both rulings.
2
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.1 We review
de novo the District Court’s dismissal of a complaint on claim preclusion
grounds. Morgan v. Covington Twp., 648 F.3d 172, 177 (3d Cir. 2011). We review the
District Court’s denial of a Rule 59(e) motion for abuse of discretion. See Max’s
Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).
We will affirm the District Court’s ruling on claim preclusion grounds. This was
Burgess’ fourth complaint concerning the defendants’ alleged cooperation with law
enforcement that led to his prosecution. On April 20, 2011, Burgess filed a complaint in
the United State District Court for the Northern District of California against Ebay,
PayPal, and others. Burgess contended that Ebay and PayPal unlawfully falsified records
to make it appear that he had downloaded child pornography. Burgess asserted that the
defendants had provided this information to law enforcement and it resulted in his
prosecution. The action against Ebay and PayPal was dismissed for failure to effect
service pursuant to Federal Rule of Civil Procedure 4(m). See Burgess v. Ebay, Inc., Civ.
No. 4:11-cv-1898-SBA (N.D. Cal.) (order entered on January 2, 2013). The district court
subsequently dismissed the action in its entirety pursuant to Rule 41(b) when Burgess
failed to file a second amended complaint. Id. (order entered on February 21, 2013).
1
Burgess’ notice of appeal was premature, but it became effective once the District Court
denied reconsideration. See Fed. R. App. P. 4(a)(4)(B)(i). Burgess filed a timely
amended notice of appeal from the denial of reconsideration, as is required by Fed. R.
App. P. 4(a)(4)(B)(ii); accordingly, we have jurisdiction to review the denial of
reconsideration. Cf. United States v. McGlory, 202 F.3d 664, 668 (3d Cir. 2000).
3
On February 28, 2011, Burgess filed a complaint in the United State District Court
for the District of Massachusetts, alleging that Ebay and PayPal are law enforcement
agencies that violated various civil and criminal laws by using “pop ups” and releasing
Burgess’ financial transactions. The complaint was dismissed, inter alia, for failure to
state a claim. Burgess v. Ebay, Inc., Civ. No. 11-10334-RGS (D. Mass.) (order entered
on April 8, 2011). On March 7, 2011, Burgess filed another complaint against Ebay,
PayPal, and others in the United State District Court for the Middle District of North
Carolina, raising allegations similar to those presented in his two prior complaints. The
matter was dismissed after Burgess failed to file an amended complaint. See Burgess v.
Ebay, Inc., Civ. No. 11-193-CCE-LPA (M.D.N.C.) (order entered on October 7, 2013).
Claim preclusion protects defendants from having to defend “multiple identical or
nearly identical lawsuits.” Morgan, 648 F.3d at 177. Claim preclusion applies where
there is “(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) (citation omitted). The first two factors are
satisfied here, as several district courts have previously dismissed Burgess’ allegations
against the same defendants for failure to state a claim or pursuant to Rule 41(b). See
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981) (stating that a
“dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a
judgment on the merits” and has claim preclusive effect) (internal quotation marks
4
omitted); Fed. R. Civ. P. 41(b). Burgess also raised the same claims in each of his
complaints. In making such a determination, we look to “whether the acts complained of
were the same, whether the material facts alleged in each suit were the same and whether
the witnesses and documentation required to prove such allegations were the same.”
Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169, 173 (3d Cir. 2009) (citation omitted).
Burgess’ complaints all assert various legal claims that arise out of Ebay’s and PayPal’s
alleged unlawful cooperation with law enforcement. Accordingly, the District Court
properly dismissed his complaint as barred by claim preclusion.2
Moreover, the District Court did not err when it dismissed the complaint without
providing leave to amend. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d
Cir. 2002) (explaining that leave to amend need not be granted if amendment would be
futile). Likewise, the District Court did not abuse its discretion in denying Burgess’
motion for reconsideration. Reconsideration is warranted if a litigant shows “(1) an
intervening change in the controlling law; (2) the availability of new evidence that was
not available when the court [ruled]; or (3) the need to correct a clear error of law or fact
or to prevent manifest injustice.” Max’s Seafood Café,176 F.3d at 677 (citation omitted).
As the District Court concluded, Burgess did not establish any basis for reconsideration.
Accordingly, we will summarily affirm the judgment of the District Court.
2
Because we conclude that Burgess’ claims are barred by claim preclusion, we need not
address the District Court’s conclusion that Burgess’ claims are barred by the statute of
limitations.
5