NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 9

- 3893

__________ REINARD SMITH,

Appellant

v. ALEX KERSHENTSEF; KEY & V AUTO SALES; VLAD (JOHN DOE); MIKE (JOHN DOE); JANE DOE 1; JANE DOE 2; SI AN I'S TOWING; STEWART KISSINGER; JOHN DOE

_____________________ _______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2

- 19

- cv - 04159 ) District Judge: Honorable Eduardo C. Robreno

___ __ _______________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

J u l y 1 0 , 2 0 2 0 Before: K R A U S E , M A T E Y , a n d R O T H , Circuit Judges

(Opinion filed : February 4, 2021 )

___________ OPINION *

___________ PER CURIAM Reinard Smith appeals the District Court’s order dismissing his complaint on the

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding preced ent.2

g round that his federal clai ms are barred by the doctrine of res judicata. For the following reasons, we will affirm in part and vacate in part, and will remand for further proceedi ngs
. I.
I n September 2018, Smith filed a n a ction against a used car dealershi p, Key & V Auto Sales, and several of its employees (collectively, “Appellees”)

. See Smith v.
Kershentsef

, No. 2: 1 8

- cv - 3840, 2019 WL 558225 (E.D. Pa. Feb. 12, 2019) (hereinafter,

“ Smith I ”)

. Smith’s complaint arose from his purchase of a used car from th e dealership

. 1 Appellees f

iled a motion to dismiss for failure to state a claim, which was ultimately granted by the District Court

. In its order of dismissal, t he District Court dismissed Smith’s claim under the Magnuso n - Moss Warranty Act with prejudice , dismissed Smith’s claim u nder the FDCPA without prejudice, and declined to exercise supplemental jurisdiction over Smith’s state law claims. The District Court’s order did not explicitly invite Smith to amend his FDCPA claim

. Smith did not file an amen ded complaint and instead f

iled a notice of appeal , docketed in this Court at C.A. No. 19

- 1621. Smith failed to file a brief on appeal as instructed, and on Septemb er 17, 2019, the appeal was dismissed pursuant to F ed. R. A pp
. P. 3(a) and 3d Cir. Misc. LA R 107.2(b)

1 He asserted claims pursuant to the Magnuson

- Moss Warranty Act, the Fair Debt Collection Practices Act (“FDCPA”), and the Pennsylvania Unfair Trade Practices a n d Consumer Protection Law (“UTPCPL”). Additionally, the complaint raised a claim u nder 12 Pa. Co ns. Stat. Ann. § 6251, a state law authorizing repossession of a motor vehicle , and a contract claim for anticipatory repudiation under 13 Pa. Cons. Stat. Ann

. § 2610.3

for failure to t imely prosecute

. O n September 9, 2019, prior to this Court’s dismissal of the Smith I appeal, Smith filed the action giving rise to the current appeal ( Smith II )

. Smith reasserted claims agains t Appellees under the U TP CPL, Magn uson - Moss Federal Warranty Act, and the FDCPA, while also reasserting state law claims for unlawful repossession. A ppellees moved to dismiss pur suant to Federal Rule of Civil Procedure 12(b)(6), and further argued that th e doctrine of r es j udicata barred Smith’s claims

. T he Distri ct Court entered an order granting Appellees’ motion to dismiss, 2 holding that res judicata barred all of Smith’s fede ral claims. Dkt. #9

. Smith filed a motion for relief from judgment pursuant to Rule 60(b)(3), which was denie d. Smith timely appealed.
II. We have jurisdiction to review the District Court’s dismissal order pursuant to 28 U.S.C. § 1291. Our review of dismissals pursuant to Rule 12(b)(6) and res judicata is de

novo
. See Newark Cab Ass’n v. City of Newark , 901 F .3d 146, 151 (3d Cir. 2018) ( Rule 12(b)(6) standard); Elkadrawy v. Vanguard Grp. , Inc. , 584 F.3d 169, 172 (3d Cir. 2009) (res judicata standard)

.

2 The District Court characterized Appellees’ motion to dismiss as unoppos ed. Bu t , as S mith argues on appeal, it appears that he did file a memorandum in opposition to the motion on November 15, 2019, a day after the District Court’s dismissal. The case number from Smith I is handwritten on the first page of the response (it i s uncle ar who wrote the incorrect case number), so the opposition was docketed in Smith I , not in Smith II

. See Plaintiff

’ s Response to FRCP 12(b)(1)

– (6) Motion to Dismiss , Smith I , No. 1 8

- cv - 3840 , ECF No. 14. Thus, it was never considered by the Distric t Court

.4

The District Court determined that res judicata

— i.e., claim preclusion

— barre d the
federal claims alleged again st Appellees. 3 We agree, i n part. F or claim preclusion to apply , a defendant must show there has been “(1) a final judgment on the m erits in a prior suit involving (2) the same parties or their privies and (3) a subseque nt suit based on the
same cause of action

. ” Davis v. Wells F argo , 824 F.3d 333, 341 (3d Cir. 2016) (quotation marks omitted).
C laim preclusion’s first requirement of a “judgment on the merits” is “better understood in terms of its functional equivalent: w hether a dismissal is with prejudi ce.” Papera v. Pa. Quarrie d Bluestone Co. , 948 F.3d 607, 610 (3d Cir. 2020). Thus, “[a]
dism issal with prejudice operates as an adjudication on the merits, so it ordinarily precludes future claims

. ” Id. at 611 (internal quotation marks omitted). On the other hand, a dismissal wi thout prejudice is one that does not operate as an adjudication on the merits , and therefore does not have a claim

- preclusive effect. Id. A “party asserting claim preclusion bears the burden of proving all the elements,” which includes proving the “ dismi ssal was with prejudice and so can preclude claims. ” Id.
III

. Here , the District Court’s dismissal of Smith’s claim under the Magnuson

- Moss Warranty Act easily satisfies the elements for claim p reclusion to apply. Smith’s curre nt

3 As in Smith I , the District Court declined to exercise supplemental jurisdiction over Smith’s state law claims. Thus, our discussion on the application of cl a im preclusion only cente rs on Smith’s claims under the Magnuson

- Moss Warranty Act a nd the FDCPA

.5

claim under that Act is derived from the same set of underlying facts as Smith I , and
invol ve the same parties or their privies. See Blunt v. Lower Merion Sch. Dist. , 767 F.3d 247, 277 (3d Cir. 2014) (noting we take a “broad view” when considering what
constitutes the same cause of action, and whether res judicata applies turns on the “essential similarity” of the underlying events giving rise to the legal claims )

. To the extent any claims may be slightly dif ferent, it is clear that Smith could have br ought those
claims in Smith I

. See id. (noting res judicata bars not only claims brought in previous litigation, but also claims that could have been brought ). Moreover, the District Court’s memorandum opinion and accomp anying order of dismissal in Smith I specify that Smith’s cla im was dismissed “with prejudice,” and was thus a final judgment on the
merits for that claim. See Davis , 824 F.3d at 341 ; Papera , 948 F.3d at 610

– 11

. Smith’s FDCPA claim presents a closer quest ion . The District Court’s opinion in Smith I simply conclude d that “[Smith] has not pleaded sufficient facts for relief under the [FDCPA ] , ” and the accompanying order stated that the FDCPA claim was dismissed

“ without prejudice

. ” S mith I , No. 2:1 8

- cv - 384 0 , 2019 WL 558225, at *4; id. , ECF No.
10 at 1. As it stands before us, we cannot read t he District Court’s dismissal as having ripened into a dismissal with prejudice , since neither the District Court’s opinion n or the order provid ed a deadline for Smith to amend his FDCPA claim and plea d sufficient facts
for reli ef

. See Weber v. McGrogan , 939 F.3d 232, 240 (3d Cir. 2019) (noting “ a ‘ self

effectuating ’ order is one that directs a party to take some action to cure a defective6

complaint by a defined date a nd provides express notice that it will then automatically
pr oduce a final order of dismissal when the time to amend runs out ”) ; see also Papera , 948 F. 3d at 609 (“ We construe ambiguities in dismissal orders against claim preclusion. ”). Accordingly , it ap pears that Smith II is, in part, S mith’s attempt to refile
cl aims that were dismissed without prejudice

— something Smith may do. See S.B. v. KinderCare Learning Ctrs., LLC , 815 F.3d 150, 152 (3d Cir. 2016 ) (noting “a dismissal without prejudice is not a fi nal decision because the plaintiff may refile the complaint” (emphasis added)) ; see also Papera , 948 F.3d at 611 (noting a dismissal without prejudice is one that does not operate as an adjudication on the merits, and therefore does not have a claim

- preclu sive effect). Consequently, the f irst element necessary for claim preclusion to apply to Smith’s FDCPA claim is lacking. 4 See Davis , 824 F.3d at 341 . Thus, the District Court erred in dismissing Smith’s FDCPA claim solely on the doctrine of res judicata

.

4 T he appeal in Smith I was dismissed for failure to prosecute and does not have any bearing on our analysis. While “finality” for purposes of determining ap p ellate jurisdiction may also indicate, in certain circumstances, that a dismissal w ithout prejudice has become “final” for purposes of res judicata, s ee Hoffman v. Nordic Nats., Inc. , 837 F.3d 272, 279 (3d Cir. 2016) (noting a plaintiff can convert a dism i ssal “without prejudice” into a final order by “declaring his intention to stand on his co mplaint” (internal quotation marks omitted)) , that situation is simply not present here

. In Hoffman , the order dismissing without prejudice was self

- effectuating an d automatically converted to a dismissal with prejudice when the appellant did not f ile an amended complaint within the mandated deadline. Id. at 279

– 80. The order in Smith I was not self

- effectuating, and the appeal was dismissed for failure to prosecut e because Smith did not file a brief ; we made no determination as to “finality” for purpose s of our appellate jurisdiction in that appeal.7 IV. For the foregoing reason s , the District Court properl y dismissed Smith’s claim
under the Magnuson

- Moss Warranty Ac t as barred by the doctrine of res judicata. However, the District Court erred in holding that Smith’s claim under the FDCPA was
prec luded

. 5 Accordingly, we will affi rm the judgment in part and vacate it in part, and will remand for further proceedings in accordance with this opinion . We grant Appellees’ motion for leave to file their supplemental appendix.

5 This opinion is limited to the claim preclusion issue, as that was the sole basis for dismissal by the District Cou r t. It is not an apprai sal on the underlying merits of Smith’s claims or whether he has pr operly pleaded his claims.