16-3879 

Dolan v. Fairbanks Capital Corporation

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 COURT=S 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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 6th 3 day of December, two thousand nineteen. 

4 

5 PRESENT: 

6 ROBERT A. KATZMANN, 

7 Chief Judge, 

8 GUIDO CALABRESI, 

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 Michael T. Dolan, 

14 

15 Plaintiff-Appellant, 

16 

17 Donna M. Dolan, and family, 

18 

19 Plaintiff, 

20 

21 v. 16-3879 

22 

23 Fairbanks Capital Corporation, a Utah 

24 corporation, 

25 

26 Defendant-Appellee, 

27 

28 PMI Mortgage Insurance Company, Walnut 

29 Creek, CA, Thomas D. Basmajian, and his 

30 officers, employees, and agents, Fairbanks 

31 Capital Holding Corporation, a Delaware 

32 corporation, 

33 

34 Defendants. 

35 _____________________________________ 

36 

37 
2 

1 FOR PLAINTIFF-APPELLANT: MICHAEL T. DOLAN, pro se, Smithtown, NY. 

2 

3 FOR DEFENDANT-APPELLEE: STEVEN R. KRAMER, Eckert Seamans Cherin 

4 & Mellott, LLC, White Plains, NY. 

5 

6 Appeal from a judgment of the United States District Court for the Eastern District of New 

7 York (Chen, J.). 

8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

9 DECREED that the judgment of the district court is AFFIRMED, and the case is REMANDED

10 to the district court with instructions. 

11 Appellant Michael Dolan, pro se, sued Fairbanks Capital Corporation (“FCC”) under 

12 federal and state law about FCC’s conduct in servicing Dolan’s mortgage loan. The district court 

13 dismissed some of Dolan’s claims on summary judgment with prejudice and denied his motion for 

14 application of offensive collateral estoppel and judgment as a matter of law on other claims based 

15 on a state court judgment in Dolan’s foreclosure proceedings. After trial, a jury concluded that he 

16 had not proven his remaining claims. We assume the parties’ familiarity with the underlying facts, 

17 the procedural history of the case, and the issues on appeal. 

18 We review de novo a grant of summary judgment and a denial of judgment as a matter of 

19 law. Stampf v. Long Island R.R. Co., 761 F.3d 192, 197 (2d Cir. 2014) (judgment as a matter of 

20 law); Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (summary judgment). A district court 

21 “has considerable discretion in determining how to respond to communications indicating that the 

22 jury is experiencing confusion.” United States v. Parker, 903 F.2d 91, 101 (2d Cir. 1990). 

23 We offer the following analysis to address Dolan’s primary arguments on appeal. First, 

24 Dolan was judicially estopped from seeking offensive collateral estoppel. In denying summary 

25 judgment in favor of FCC on the basis of res judicata, the district court had relied on Dolan’s 
3 

1 argument that FCC had not been a party in the state action and that the state court had not 

2 determined whether FCC was liable to Dolan under state law. See Pegram v. Herdrich, 530 U.S. 

3 211, 227 n.8 (2000). Second, summary judgment was proper on Dolan’s Real Estate Settlement 

4 Procedures Act claims about transfer of servicing because Dolan disclaimed any “actual damages,” 

5 which he was required to prove under 12 U.S.C. § 2605(f)(1). Third, the response to the jury’s 

6 note requesting clarification about Dolan’s injury was within the district court’s “considerable 

7 discretion.” Parker, 903 F.2d at 101. 

8 That leaves, as the only significant remaining issue, Dolan’s claim of deceptive acts or 

9 practices under N.Y. Gen. Bus. Law § 349. The resolution of this claim turns on the not 

10 uncomplicated issue of whether Dolan presented sufficient evidence that FCC’s allegedly 

11 deceptive “acts or practices ha[d] a broader impact on consumers at large.” Oswego Laborers’ 

12 Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 744 (N.Y. 1995). That 

13 question being purely of state law, and with no federal claims remaining, we believe that the district 

14 court should have dismissed this claim without prejudice to Dolan renewing it in state court. See

15 Oneida Indian Nation of New York v. Madison County, 665 F.3d 408, 436-37 (2d Cir. 2011). 

16 We have considered all of Dolan’s remaining arguments and find them to be without merit. 

17 Accordingly, we AFFIRM the judgment of the district court, VACATE the district court’s 

18 dismissal of Dolan’s N.Y. Gen. Bus. Law § 349 claim, and REMAND to the district court with 

19 instructions to dismiss that claim without prejudice. 

20 FOR THE COURT: 

21 Catherine O=Hagan Wolfe, Clerk of Court

22