NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-3127

_____________

ALAN J. ROSS;

ALAN J. ROSS INSURANCE AGENCY INC.

 

v.

BENNETT MEYER; MEYER-CHATFIELD CORP.; 

DAVID L. BRAVERMAN; JOHN KASKEY; 

BRAVERMAN KASKEY PC

 (E.D. Pa. No. 2-12-cv-00998)

MEYER-CHATFIELD CORPORATION;

BENNETT S. MEYER;

ZCRACKERBOX, LLC;

BRAVERMAN KASKEY, P.C.

v.

ALAN J. ROSS individually d/b/a SAVE ASSOCIATES;

ALAN J. ROSS INSURANCE AGENCY INC.

d/b/a SAVE ASSOCIATES

 (E.D. Pa. No. 2-12-cv-02760)

 Alan J. Ross,

 Appellant 
2

____________

No. 16-3146

_____________

ALAN J. ROSS; 

ALAN J. ROSS INSURANCE AGENCY INC.

v.

BENNETT MEYER; MEYER CHATFIELD CORP.; 

DAVID L. BRAVERMAN; JOHN KASKEY; 

BRAVERMAN KASKEY, P.C.

 

 (D.C. No. 2-12-cv-00998)

MEYER-CHATFIELD CORPORATION;

BENNETT S. MEYER; ZCRACKERBOX, LLC;

BRAVERMAN KASKEY, P.C.

v.

ALAN J. ROSS individually d/b/a SAVE ASSOCIATES;

ALAN J. ROSS INSURANCE AGENCY INC.

d/b/a SAVE ASSOCIATES 

(D.C. No. 2-12-cv-02760)

 

 Meyer-Chatfield Corp.; Bennett Meyer; David L. Braverman,

 John Kaskey; Braverman Kaskey, P.C.; Zcrackerbox, LLC,

 Appellants

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. Action Nos. 2-12-cv-00998 & 2-12-cv-02760)

District Judge: Honorable Nitza I. Quiñones Alejandro
3

______________

Submitted Under Third Circuit L.A.R. 34.1(a)

January 24, 2017

______________

Before: CHAGARES, RESTREPO, and ROTH Circuit Judges.

(Filed: July 6, 2018)

______________

OPINION*

______________

RESTREPO, Circuit Judge.

Alan J. Ross sued the Meyer-Chatfield Corporation (“MC”), Braverman Kaskey

(“BK”), Bennett S. Meyer, David L. Braverman, and John E. Kaskey, alleging, inter alia,

breach of contract and fraud. Ross appeals from the District Court’s order dismissing his 

second amended complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). MC, 

BK, ZCrackerbox, LLC, and related individuals cross-appeal the District Court’s decision

to grant Ross’s motion for relief under Federal Rule of Civil Procedure 60(b)(6) and deny 

their request for compensatory damages. For the reasons that follow, we will affirm.

I

Because we write solely for the benefit of the parties and the facts at issue here 

have been litigated in several fora, we set out only the facts and procedural history 

necessary to our discussion. 

 

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
4

Alan J. Ross is the inventor of an investment vehicle “for pooling institutionallyowned life insurance policies” known as Pooled Benefit Trusts (“PBTs”), for which he 

obtained a patent in 1999. App. 24. In 2006, Ross1and MC entered into an agreement 

whereby MC would market PBTs and, in 2008, Ross and MC entered into an oral 

agreement regarding MC’s receipt of a minority equity interest in the patent. At the same 

time, Ross was engaged in negotiations with third parties not-in-interest to this suit, 

Balshe LLC and The Simon Law Firm (collectively, “Balshe”), which also wanted to 

purchase an interest in the patent. 

Balshe ultimately sued Ross for breach of an oral agreement to sell Ross’s 

remaining interest in the patent and for attempting to sell the patent to a third party. Ross 

removed the action to the United States District Court for the Northern District of Illinois, 

and MC intervened to protect its own interest in the patent (the “Initial Action”). BK

agreed to represent both MC and Ross in the Initial Action on a contingency fee basis, 

whereby payment would consist of equity interest in a newly-formed company to which 

ownership of the patent would be transferred. On June 5, 2008, the parties memorialized 

their understanding that, if BK and Ross were to prevail in or settle the Initial Action, BK 

would receive 10 percent ownership interest and Ross and Meyer would each receive 45 

 

1

 Although the party entering into the various agreements with MC and BK was 

SAVE Associates or the Alan J. Ross Insurance Agency, Inc. d/b/a SAVE Associates, the 

Court refers only to Ross herein for ease of reference, and because Ross alleges and 

admits that Alan J. Ross Insurance Agency, Inc. d/b/a SAVE Associates is “a sole 

proprietorship and brand name consisting of Alan J. Ross only and [is] indistinguishable 

in operation or for tax purposes from Alan J. Ross[.]” App. 65 ¶ 2.
5

percent ownership interest in the new company, MRB Pooled Benefits, LLC (the “MRB 

Agreement”). The parties also agreed that the executive committee of MRB Pooled 

Benefits, LLC would consist of Meyer, Ross, and Braverman.

On June 26, 2008, Balshe, MC, and Ross settled the Initial Action pursuant to an 

agreement which provided that they would collectively form another entity, Institutional 

Pooled Benefits LLC (“IPB”), to exploit the patent (“Settlement Agreement”). Per the 

Settlement Agreement, Ross was to assign the patent to IPB, which would be owned 45 

percent by Balshe, 45 percent by MC, and 10 percent by Ross. Accordingly, the MRB 

Agreement was revised to change ownership percentages, and specify that Ross would 

transfer the patent to IPB (“Revised MRB Agreement”). Disputing the terms, Ross did 

not transfer the patent. In response, MC and Balshe sent Ross a demand letter seeking 

performance and, when Ross did not comply, the parties filed cross-motions to compel 

compliance with the Settlement Agreement.

In September 2010, the Northern District of Illinois ordered Ross to transfer his 

interest in the patent pursuant to an amended settlement agreement. However, due to a

jurisdictional defect in that order, Balshe and MC filed a new action against Ross in 

February 2012 to enforce the Settlement Agreement (“Second Illinois Action,” together 

with the Initial Action, the “Illinois Actions”).

2

In January 2014, the Northern District of 

 

2

 In accordance with the parties’ belief that the Northern District of Illinois had 

retained jurisdiction over the Settlement Agreement, the parties initially filed crossmotions to compel compliance with the agreement in the Initial Action. Upon Ross’s 

appeal from the order compelling his compliance, the Seventh Circuit held that the 

District Court had not retained subject matter jurisdiction over the Settlement Agreement 

when it dismissed the Initial Action with prejudice. The Seventh Circuit instructed that 
6

Illinois ultimately ordered Ross to transfer his interest in the patent, consistent with its 

2010 order, and awarded damages to Balshe and MC to be assessed against Ross. Ross 

appealed, and the Seventh Circuit affirmed the District Court in July 2015. 

Meanwhile, in February 2012, Ross sued MC, BK, Meyer, Braverman, and 

Kaskey in the Eastern District of Pennsylvania alleging, inter alia, breach of the Revised 

MRB Agreement and Settlement Agreement and fraud in connection with those 

agreements. MC, Meyer, BK, and ZCrackerbox—an entity formed by Braverman and 

Kaskey—(collectively, “Cross-Claimants”) sued Ross in Pennsylvania state court to 

enforce the Revised MRB Agreement. Those suits were consolidated in the Eastern 

District of Pennsylvania and form the dispute underlying the instant appeal. 

In June 2014, the District Court took judicial notice of the orders entered in the 

Illinois Actions, and entered orders: granting Cross-Claimants’ motions for partial 

summary judgment as to Ross’s liability only, on res judicata and collateral estoppel

grounds; dismissing Ross’s second amended complaint; denying Ross’s motion to 

dismiss the cross-claim; and placing the remainder of Cross-Claimants’ suit in civil 

suspense, pending a final decision in the Second Illinois Action. Once the suit was 

restored to active status, the District Court dismissed the remainder of the cross-claim on 

the basis of res judicata; granted Ross’s motion for Rule 60(b)(6) relief; and denied

Cross-Claimants’ request for damages. Ross appeals the order dismissing his second 

amended complaint; Cross-Claimants appeal the order precluding damages.

 

the proper vehicle for any enforcement of the Settlement Agreement would be a new 

breach of contract action. 
7

II

The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have 

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of a District 

Court’s order granting a motion to dismiss pursuant to Rule 12(b)(6). N.Y. Shipping Ass’n 

Inc. v. Waterfront Comm’n of N.Y. Harbor, 835 F.3d 344, 352 (3d Cir. 2016). Although 

we must accept all well-pleaded factual allegations as true, we must separately determine 

whether those allegations “plausibly give rise to an entitlement to relief.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678-79 (2009).

“We review for abuse of discretion a district court’s denial of [or decision to grant] 

a motion under Rule 60(b)(6).” Cox v. Horn, 757 F.3d 113, 118 (3d Cir. 2014). “[A]

district court may only grant relief under Rule 60(b)(6) in ‘extraordinary circumstances 

where, without such relief, an extreme and unexpected hardship would occur.’”

Satterfield v. Dist. Att’y Phila., 872 F.3d 152, 158 (3d Cir. 2017) (quoting Cox, 757 F.3d 

at 120). In this context, an abuse of discretion requires a clearly erroneous finding of fact, 

an erroneous conclusion of law, or improperly applying the law to the facts. Cox, 757 

F.3d at 118.

III

A

The District Court’s decision to dismiss Ross’s second amended complaint on the 

basis of res judicata was sound.3 The doctrine of res judicata is an affirmative defense 

 

3

 “Collateral estoppel customarily refers to issue preclusion, while res judicata, 

when used narrowly, refers to claim preclusion. This court has previously noted that the 
8

that may “properly be the grounds for a motion to dismiss for failure to state a claim . . . 

pursuant to Fed. R. Civ. P. 12(b)(6).” Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d 

883, 886 (3d Cir. 1997). It applies when “there has been (1) a final judgment on the 

merits in a prior suit involving (2) the same claim and (3) the same parties or their 

privies.” 5 Unlabeled Boxes, 572 F.3d at 173 (quoting E.E.O.C. v. U.S. Steel Corp., 921 

F.2d 489, 493 (3d Cir. 1990)). “The essential inquiry is whether the ultimate and 

controlling issues have been decided in a prior proceeding in which the present parties 

had an opportunity to appear and assert their rights.” Callery v. Mun. Auth. of Blythe 

Twp., 243 A.2d 385, 387 (Pa. 1968); see also Blunt v. Lower Merion Sch. Dist., 767 F.3d 

247, 277 (3d Cir. 2014) (“[R]es judicata generally is thought to turn on the essential 

similarity of the underlying events giving rise to the various legal claims.”) (alteration in 

original) (internal citation and quotation marks omitted).

First, the Northern District of Illinois’s decision ordering Ross to transfer his 

interest in the patent and granting damages to be assessed against him is a final judgment 

on the merits. Although that order was on appeal at the Seventh Circuit at the time the 

Eastern District of Pennsylvania issued the order now appealed by Ross, we have 

previously recognized that “the pendency of an appeal does not affect the potential for res 

judicata flowing from an otherwise-valid judgment.” 5 Unlabeled Boxes, 572 F.3d at 175; 

see also Restatement (Second) of Judgments §13(f) (“[A] judgment otherwise final 

 

preferred usage of the term res judicata encompasses both claim and issue preclusion.” 

United States v. 5 Unlabeled Boxes, 572 F.3d 169, 173-74 (3d Cir. 2009) (internal 

quotation marks and citation omitted).
9

remains so despite the taking of an appeal . . . .”). The Illinois decision was thus a “final 

judgment” for the purposes of res judicata.

Second, as the District Court rightly found, the “ultimate and controlling issue[,]”

id., at the center of Ross’s second amended complaint, the cross-claims against him, and 

the Illinois Actions is the same: “Ross’s obligation to transfer all interest and right in the 

patent[]”—or not. App. 31. Moreover, the same contracts are at issue: the MRB 

Agreement, the Amended MRB Agreement, the Settlement Agreement, and related 

operating agreements. The Northern District of Illinois expressly considered all of these, 

as addressing them in concert was the only way to untangle the obligations that the 

parties owed to one another. As the Eastern District of Pennsylvania found, the various 

claims asserted in Ross’s second amended complaint stem entirely from negotiations 

related to these agreements or the agreements themselves. Any such claims and the 

overarching issue of Ross’s obligation have already been resolved by the Northern 

District of Illinois’s judgment.

Finally, the exact parties or their privies involved in the Illinois Actions are parties 

to this suit. E.E.O.C., 921 F.2d at 493 (noting privity only requires that “the relationship 

between one who is a party on the record and another is close enough to include that 

other within the res judicata.”).

All the requirements of res judicata having been met, we affirm the District Court 

order dismissing Ross’s second amended complaint.4

 

4

“[A] claim extinguished by res judicata ‘includes all rights of the plaintiff to 

remedies against the defendant with respect to all or any part of the transaction, or series 
10

B

We further hold that the District Court did not err by granting Rule 60(b)(6) relief 

to Ross and denying damages to Cross-Claimants. Rule 60(b)(6) authorizes courts to 

grant relief from final judgments for “any other reason that justifies relief” beyond those 

enumerated elsewhere in the rule. Fed. R. Civ. P. 60(b)(6). That provision exists because 

“it would be impossible to specify all of the scenarios in which justice might require 

vacatur of a judgment.” Budget Blinds, Inc. v. White, 536 F.3d 244, 254 (3d Cir. 2008).

Rule 60(b) balances our respect for finality of judgments with “extraordinary 

circumstances creating a substantial danger that the underlying judgment was unjust.”

Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 131 F.3d 625, 630 (7th Cir. 

1997).

The Cross-Claimants sought—and won—damages in the Illinois Actions that 

covered, as we have set forth above, the same facts and circumstances presented here, 

including the same agreements. Moreover, the District Court noted that the CrossClaimants sought to use res judicata offensively against Ross, but argued against Ross’s 

attempt to use it defensively. The District Court could thus conclude that the award of 

damages in the Illinois Actions and the imperative to apply res judicata equally to all

parties constituted extraordinary circumstances warranting Rule 60(b)(6) relief.

5 The

 

of connected transactions, out of which the action arose.’” Gregory v. Chehi, 843 F.2d 

111, 117 (3d Cir. 1988) (quoting Restatement (Second) of Judgments sec. 24(1)).

5

 The Cross-Claimants argue that at least ZCrackerbox should be allowed to 

obtain damages, and suggest that “the District Court did not determine that Zcrackerbox 

was in ‘privity’ with MC and/or Balshe LLC in the Illinois Action.” Appellees’/Cross-
11

District Court’s decision to decline to find damages followed directly from the grant of 

Rule 60(b)(6) relief and from its determination that res judicata principles controlled. We 

therefore hold that the District Court did not abuse its discretion in granting relief under 

Rule 60(b)(6) and denying an award of damages to Cross-Claimants.

IV

For the foregoing reasons, we affirm the orders of the District Court.

 

Appellants’ Br. at 38 n.7. As the investment vehicle for Braverman and Kaskey, however, 

that argument is unavailing. See E.E.O.C., 921 F.2d at 493.

Similarly unavailing is Cross-Claimants’ argument that the Rule 60(b)(6) motion 

was untimely. Ross, a pro se litigant, filed it within three months after the case came out 

of civil suspense. We have previously held such a timeline to be “close enough . . . to be 

deemed reasonable” for the purposes of Rule 60(b)(6). Cox, 757 F.3d at 115-16.