NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-2820

___________

CHARLESWORTH LEWIS,

Appellant

v.

LAUREN E. O’DONNELL, Esq.; KEVIN C. RAKOWSKI, Esq; 

FRANK J. KEENAN, Esq; PENNYMAC CORP.; M. E. WILEMAN; C. LAFFERTY

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-16-cv-01514)

District Judge: Honorable Jose L. Linares

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 16, 2016

Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges

(Opinion filed: January 4, 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.
2

Charlesworth Lewis appeals from an order of the United States District Court for 

the District of New Jersey dismissing his complaint. For the reasons that follow, we will 

affirm.

Lewis defaulted on a mortgage that had been assigned to PennyMac Corporation. 

Consequently, PennyMac filed a foreclosure action in the Superior Court of New Jersey, 

Chancery Division (Essex County). Lewis failed to respond, and a final judgment by 

default was entered against him in October 2014.1 In May 2015, Lewis initiated a 

separate action against PennyMac in the Chancery Division, alleging that the assignment 

of his mortgage was fraudulently drafted, executed, and recorded. On August 21, 2015, 

the Chancery Division granted PennyMac’s motion to dismiss and dismissed the action 

with prejudice.

In March 2016, Lewis filed a complaint in the District Court, challenging the 

foreclosure action on the ground that the assignment of the mortgage to PennyMac was 

“defective.” In particular, he alleged violations of the Fair Debt Collection Practices Act 

(FDCPA), the Racketeer Influenced and Corrupt Organizations (RICO) Act, the New 

Jersey Consumer Fraud Act (CFA), and civil conspiracy laws. Lewis named as 

defendants PennyMac, attorneys who represented PennyMac, and individuals involved in 

 

1 Thereafter, Lewis filed a motion to vacate the default judgment, arguing that the 

assignment of the mortgage to PennyMac was invalid. The Chancery Division denied 

Lewis’ motion. Lewis appealed, and the Superior Court, Appellate Division, affirmed. 

See Pennymac Corp. v. Lewis, 2016 WL 3981210, at *2 (N.J. Super. Ct. App. Div. July 

26, 2016) (not precedential).
3

executing and notarizing the PennyMac assignment. The defendants were not served 

with the complaint but, upon learning of its existence through their own docket search, 

filed a motion to dismiss. Lewis filed a response in opposition. The District Court 

denied the motion to dismiss as moot, but nevertheless dismissed the complaint, holding 

that Lewis’ claims were barred by the Rooker-Feldman doctrine and New Jersey’s entire 

controversy doctrine.2 Lewis appealed.3 

In his brief, Lewis primarily alleges that his procedural due process rights were 

violated by the District Court’s dismissal of his complaint before the Defendants were 

served, entered an appearance, and participated in discovery. In Oatess v. Sobolevitch, 

we held that dismissal of a complaint prior to service of process is inappropriate. 914 

F.2d 428, 430 (3d Cir. 1990). Here, however, although the Defendants were not served, 

they filed a motion to dismiss, Lewis filed a response in opposition to that motion, the 

District Court rendered its decision, and Lewis appealed. Consequently, the concerns 

underlying our decision in Oatess – “interfere[nce] with the orderly process of the 

case[,]” “bypass[ing] our tradition of adversarial proceedings[,]” and “greater 

 

2 The District Court also denied as moot Lewis’ “motion to show bona fides,” wherein he 

sought an order directing the Defendants’ attorneys to explain their “authority to defend 

this action.” There is no merit to Lewis’ argument on appeal that the District Court was 

required to hold a hearing to address that motion. 

3 We have jurisdiction under 28 U.S.C. § 1291 and review de novo the District Court’s 

dismissal of the complaint. We may affirm the District Court’s judgment on any basis 

that the record supports. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per 

curiam). 
4

inefficiency” because “if an appeal is taken the case shuttles between the district and 

appellate courts[,]” id. at 431 – are absent here. See Roman v. Jeffes, 904 F.2d 192, 196 

(3d Cir. 1990) (stating that “there are times when a court may sua sponte raise the issue 

of the deficiency of a pleading under Rule 12(b)(6) provided that the litigant has the 

opportunity to address the issue either orally or in writing.”). In addition, Lewis has 

failed to identify how he was prejudiced by the filing of the Defendants’ motion to 

dismiss three days before their attorney entered an appearance. Also, contrary to Lewis’ 

contention, the District Court was permitted to dismiss the complaint prior to discovery. 

See Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). 

We also conclude that the Defendants’ motion to dismiss adequately demonstrated 

that Lewis’ claims are barred by res judicata.4 See Fed. R. Civ. P. 8(c) (listing res 

judicata as an affirmative defense); see also Ball v. Famiglio, 726 F.3d 448, 459 n.16 (3d 

Cir. 2013) (noting that res judicata may be raised in a 12(b)(6) motion to dismiss). Res 

judicata bars claims that were actually litigated or could have been litigated in a prior 

action. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). For res 

judicata to apply, a defendant must show that there has been “(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 causes of action.” United States v. Athlone Indus., Inc., 746 F.2d 

977, 983 (3d Cir. 1984). “In deciding whether two suits are based on the same ‘cause of 

 

4 This conclusion obviates the need for us to consider the District Court’s application of 

the Rooker-Feldman and entire controversy doctrines. See Murray, 650 F.3d at 247. 
5

action,’ we take a broad view, looking to whether there is an ‘essential similarity of the 

underlying events giving rise to the various legal claims.’” CoreStates Bank, N.A. v. 

Huls Am., Inc., 176 F.3d 187, 194 (3d Cir. 1999) (citation omitted). 

Based on our review of Lewis’ complaint and the state court documents submitted 

by the Defendants, it is clear that those requirements have been met and that Lewis is 

merely attempting to re-litigate issues that were already decided in state court. See

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005) (recognizing 

that “a federal court may be bound to recognize the claim- and issue-preclusive effects of 

a state-court judgment”). First, Lewis’ prior state court actions were dismissed on the 

merits. See Morris v. Jones, 329 U.S. 545, 550-51 (1947) (holding that a default 

judgment constitutes a decision on the merits for res judicata purposes); DeGroot, Kalliel, 

Traint & Conklin, P.C. v. Camarota, 404 A.2d 1211, 1213 (N.J. Super. Ct. App. Div. 

1979) (same). Second, PennyMac is a party here and in the prior actions.5 Finally, the 

 

5 With respect to the individual defendants named here, only one, M.E. Wileman, was 

named in the state court proceedings. Nevertheless, we conclude that the individual 

defendants were in privity with PennyMac. “Privity ‘is merely a word used to say 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.’” Marran v. Marran, 376 F.3d 143, 151 (3d Cir. 

2004) (quoting EEOC v. U.S. Steel Corp., 921 F.2d 489, 493 (1990)). Indeed, the 

individual defendants all worked for or on behalf of PennyMac. See Henry v. Farmer 

City State Bank, 808 F.2d 1228, 1235 n.6 (7th Cir. 1986) (“Even though the Bank was 

the only actual party to the state court mortgage foreclosure proceedings, the other 

defendants, as directors, officers, employees, and attorneys of the Bank, are in privity 

with the Bank for purposes of res judicata.”); see also Collins v. E.I. DuPont de Nemours 

& Co., 34 F.3d 172, 176 (3d Cir. 1994) (stating that, under New Jersey law, “[a] 

relationship is usually considered ‘close enough’ [for res judicata purposes] only when 

the party is a virtual representative of the non-party, or when the non-party actually 
6

present action and the prior state suits involve the issue whether the mortgage was 

fraudulently assigned to PennyMac. We note that Lewis could have raised in state court 

claims under the FDCPA, the RICO Act, the New Jersey CFA, and civil conspiracy laws. 

See e.g., Hodges v. Sasil Corp., 915 A.2d 1, 7 (N.J. 2007) (addressing FDCPA claim in 

connection with landlord-tenant dispute); Mayo, Lynch & Assocs., Inc. v. Pollack, 799 

A.2d 12, 20-22 (N.J. Super. Ct. App. Div. 2002) (considering federal RICO claim).

For these reasons, we will affirm the District Court’s judgment.6 

 

controls the litigation.”). 

6 Lewis’ “motion for attorney to show bona fides and authority” and “motion to strike 

appellees’ answer brief and sanction the Appellees’ attorneys” are denied. We also deny 

as moot Appellees’ “motion for leave to file opposition to Appellant’s motion for 

attorney to show bona fides and authority.”