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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3175

___________

JOHN KLIESH,

Appellant

v.

SELECT PORTFOLIO SERVICING INC;

CREDIT SUISSE FIRST BOSTON (USA)

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 09-2726)

District Judge: Honorable Legrome D. Davis

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 18, 2011

Before: RENDELL, CHAGARES and ALDISERT, Circuit Judges

(Opinion filed: March 22, 2011)

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OPINION

_________

PER CURIAM

Pro se appellant John Kliesh appeals the District Court’s dismissal of his
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complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. 

We have jurisdiction under 28 U.S.C. § 1291 and exercise de novo review over the 

District Court’s order. Ballentine v. United States, 486 F.3d 806, 808 (3d Cir. 2007). For 

the reasons discussed below, we will affirm the District Court’s judgment. 

This action arises out of Select Portfolio Servicing Inc.’s efforts to collect 

mortgage payments from Kliesh and its ultimate decision to foreclose on his home. 

Kliesh obtained a mortgage on September 18, 1997; the mortgage was later assigned to 

Select Portfolio. In February 2003, Kliesh defaulted on his mortgage payments. Over 

the years, Select Portfolio wrote numerous letters and made repeated phone calls to 

Kliesh in an effort to collect the money that Kliesh owed. When these efforts proved 

unsuccessful, Select Portfolio instituted a foreclosure action in the Bucks County Court 

of Common Pleas. 

Kliesh raised numerous counterclaims in the state-court action, which alleged, 

generally, that the mortgage agreement itself was illegal, that Select Portfolio had 

charged Kliesh unwarranted fees, and that Select Portfolio’s collection actions violated 

federal law. Kliesh also charged Select Portfolio with breaching numerous procedural 

rules in the course of litigating the foreclosure action. The Court of Common Pleas 

granted summary judgment to Select Portfolio. The Court concluded that Kliesh’s 

various defenses were “simply attempts to prolong this litigation with further baseless 

allegations.” The Superior Court affirmed. 
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Kliesh then filed a complaint in federal court. In his amended complaint, which is 

at issue here, he raised the following claims: (1) Select Portfolio filed a fraudulent 

foreclosure action; (2) Select Portfolio violated the Truth in Lending Act (TILA), 15 

U.S.C. §§ 1601-67; (3) Select Portfolio unjustly enriched itself; (4) Select Portfolio 

violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p; (5) 

Select Portfolio violated the Fait Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-

1681x; and (6) Select Portfolio intentionally inflicted emotional distress upon him. As 

discussed below, the District Court granted Select Portfolio’s and Credit Suisse First 

Boston’s1 motions to dismiss. Kliesh then filed a timely appeal.

As a preliminary matter, Kliesh argues that Select Portfolio’s and Credit Suisse’s 

motions to dismiss were untimely and that they should not have been permitted to file 

separate motions. These arguments fail. Kliesh filed his amended complaint on 

September 15, 2009, and Rule 15(a)(3) of the Federal Rules of Procedure provides 

defendants with 14 days to respond. And, since Kliesh served the amended complaint by 

first-class mail, defendants were entitled to an additional three days. See Fed. R. Civ. P. 

 

1 As this summary of the claims reveals, Kliesh made no specific allegations 

against Credit Suisse, the second defendant he named, and seems to have sued it solely 

due to its role as a parent company of Select Portfolio. Typically, “a parent corporation 

(so-called because of control through ownership of another corporation’s stock) is not 

liable for the acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61 (1998). 

In any case, because we agree with the District Court that Kliesh has failed to state a 

claim against Select Portfolio, he has also necessarily failed to state a claim against 

Credit Suisse. 
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6(d). Their responses were thus due on October 2, 2009, which is the day they were 

filed. Moreover, Select Portfolio and Credit Suisse did not violate any rules by filing 

separate responses; they were, after all, named as separate defendants in Kliesh’s 

amended complaint.

Kliesh also challenges the District Court’s decision to dismiss his first claim —

that defendants filed a fraudulent foreclosure action — on the basis of the RookerFeldman doctrine. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 

(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). According to Kliesh, he

alleged that he was injured by the defendants, not the state-court judgment. So construed, 

we agree that the claim is arguably not barred by the Rooker-Feldman doctrine. See

Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 167 (3d Cir. 

2010).

However, even accepting Kleish’s interpretation of his claim, it is barred by 

principles of issue preclusion.2 Under this doctrine, “when an issue of fact or of law is 

actually litigated and determined by a valid final judgment, and determination of the issue 

was essential to judgment, the determination on that issue is conclusive in a subsequent 

action between the parties, whether on the same or a different claim.” McNeil v. Owens-

 

2 We may affirm the District Court’s judgment on any ground supported by 

the record. United States v. Sanchez, 562 F.3d 275, 279 (3d Cir. 2009). Select Portfolio 

raised this defense in its motion to dismiss, and it is appropriate for us to review the state 

court opinions at the motion-to-dismiss stage to determine whether they should be 
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Corning Fiberglas Corp., 680 A.2d 1145, 1147-58 (Pa. 1996). Kliesh claims that the 

defendants obtained the allegedly fraudulent judgment by (1) flouting the Pennsylvania 

Rules of Civil Procedure and (2) enforcing an invalid mortgage agreement. However, he 

fully raised those precise arguments in the state proceedings, the Court of Common Pleas 

rejected the arguments on the merits and the Superior Court affirmed that court’s

judgment, and the state courts’ rulings were essential to the final judgment. The state 

courts’ rulings are therefore conclusive in this action and bar this claim. 

Kliesh next challenges the District Court’s rulings that his TILA, FDCPA, and 

intentional-infliction-of-emotional-distress claims are barred by the applicable statutes of 

limitations. See 15 U.S.C. § 1640(e) (one-year statute of limitations for claims under

TILA); 15 U.S.C. § 1692k(d) (one-year statute of limitations for claims under FDCPA); 

42 Pa. Cons. Stat. § 5524 (two-year statute of limitations for claims of emotional 

distress). He attacks the Court’s reasoning on four grounds. First, he claims that the 

District Court wrongly raised this defense sua sponte. Kliesh is wrong; Select Portfolio

made this argument in its motion to dismiss. See W. Penn Allegheny Health Sys. v. 

UPMC, 627 F.3d 85, 105 n.13 (3d Cir. 2010) (defendants may raise statute-of-limitations 

defense in motion to dismiss). Second, Kliesh argues that because the defendants have 

not yet evicted him from the property, the statutes of limitations have not begun to run on 

any of his claims. We are aware of no precedent supporting this novel argument; in any 

 

accorded preclusive effect. See Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 
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event, because Kliesh did not raise it before the District Court, we will not entertain it on 

appeal. See C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 73 (3d Cir. 2010).

Third, Kliesh contends that he is entitled to tolling because the defendants

fraudulently concealed their misconduct by obtaining the state judgment. However, this 

argument misses the point; to be entitled to tolling on this ground, Kliesh must allege that 

the defendants’ conduct prevented him “from recognizing the validity of [his] claim 

within the limitations period.” Mathews v. Kidder, Peabody & Co., 260 F.3d 239, 256 

(3d Cir. 2001). Kliesh has not argued that the defendants’ actions misled him, and given 

his vigorous defense of the state action, it is unclear how he could. Finally, Kliesh argues

that equitable tolling should apply to his TILA and FDCPA claims because he previously 

raised them as state-court counterclaims. While it is true that equitable tolling is 

available where a plaintiff has timely asserted his rights in the wrong forum, see Hedges 

v. United States, 404 F.3d 744, 751 (3d Cir. 2005), Kliesh’s counterclaims were 

themselves filed outside the limitation periods. Accordingly, we will affirm the District 

Court’s dismissal of these claims.3

 

2004).

3 Kliesh has not presented any argument challenging the District Court’s 

dismissal of his FCRA or unjust-enrichment claim, and we agree with the District Court 

that those claims fail as a matter of law. Further, we agree with the District Court that on 

the facts alleged, Kliesh has failed to assert a viable intentional-infliction-of-emotionaldistress claim. Cf. Lazor v. Milne, 499 A.2d 369, 371 (Pa. Super. Ct. 1985) (“An actor is 

never liable where he has done no more than to insist upon his legal rights in a 

permissible way, even if he is aware that such insistence may cause emotional distress.” 

(citing Restatement (Second) of Torts § 46 cmt. g)).
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Finally, Kliesh argues that he should have been given leave to amend his 

complaint. We agree with the District Court that further amendment would be futile. See

Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). Kliesh’s claims fail 

as a matter of law, and he could not cure these deficiencies with further pleading. 

We have thoroughly reviewed the remaining arguments Kliesh has made and find 

them meritless.4 Accordingly, we will affirm the District Court’s order dismissing 

Kliesh’s amended complaint.

 

4 We note also that Kliesh has presented new evidence that he alleges 

supports his claims. While the “only proper function of a court of appeals is to review 

the decision below on the basis of the record that was before the district court, in 

exceptional circumstances a court of appeals may allow a party to supplement the record 

on appeal.” Acumed LLC v. Advanced Surgical Servs., 561 F.3d 199, 226 (3d Cir. 2009) 

(internal quotation marks, alterations, and citation omitted). Here, Kliesh’s new evidence 

does not address the legal obstacles that are fatal to his claims.