IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

BEZALEL GROSSBERGER,

 Plaintiff,

v.

ROBERT SALDUTTI,

 Defendant.

HON. JEROME B. SIMANDLE

Civil No. 11-00941 (JBS/AMD)

OPINION

APPEARANCES:

Bezalel Grossberger

117 Forest Park Circle

Lakewood, NJ 08761

Pro se Plaintiff

Robert Saldutti

SALDUTTI, LLC

800 Kings Hwy., Suite 300

Cherry Hill, NJ 08034

Pro se Defendant

SIMANDLE, District Judge: 

I. INTRODUCTION

Plaintiff Bezalel Grossberger, pro se, filed the instant

action against Defendant Robert Saldutti alleging harassment and

misrepresentation claims and that the Defendant infringed upon

his rights under 15 U.S.C. § 1692, the Fair Debt Collection

Practices Act (“FDCPA”).

Presently before the Court is Defendant’s motion to dismiss

[Docket Item 5]. The Defendant argues that Plaintiff’s claims

against him are barred by the doctrine of res judicata, because

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Plaintiff’s suit simply repackages the claims he brought in an

earlier state court action which was dismissed with prejudice,

or, in the alternative, Plaintiff’s complaint should be dismissed

for failure to state a valid claim. For the following reasons,

the Court will dismiss Plaintiff’s claims against Defendant

because the Court finds Plaintiff’s claims to be barred by the

doctrine of res judicata.

II. BACKGROUND

The following are taken from the Complaint and assumed to be

true for the purposes of this Opinion, or are contained in public

documents, the contents of which are not in dispute, and thus,

the Court can consider on a motion to dismiss. Goldenberg v.

Indel, Inc., 741 F. Supp. 2d 618, 624 (D.N.J. 2010). On June 21,

1999, Plaintiff entered into a loan agreement with Sovereign

Bank, who subsequently assigned the loan to Brown Bark I LP

(“Brown Bark”). Def.’s Br. in Supp. of Mot. to Dismiss 5; Def.’s

Br. in Supp. of Mot. to Dismiss Ex. B. Brown Bark, represented by

Saldutti LLC and Defendant Robert Saldutti, filed a complaint in

New Jersey Superior Court on or around January 24, 2005, in an

effort to collect on the loan. On May 24, 2005, a default

judgment was entered by the Superior Court of New Jersey in Ocean

County against Plaintiff and his business, PR Productions, in

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favor of Brown Bark. Def.’s Br. in Supp. of Mot. to Dismiss 5. 1

The precise collection efforts taken by Defendant are

disputed by the parties. Plaintiff alleges that Defendant’s

collection efforts and communication, on behalf of Brown Bark,

were harassing in nature. Defendant describes numerous

court/legal procedures by which he attempted to collect. As this 2

matter is before the Court on a motion to dismiss, the Court must

take the factual allegations in the Complaint as true, which the

Court has done. On or around December 7, 2010, Plaintiff filed a

complaint in the Superior Court of New Jersey in Camden County

against Defendant “demand[ing] $3,000.00 and alleg[ing]

‘unauthorized harassment in attempt to obtain personal

information from plaintiff without full disclosure.’” Def.’s Br.

in Supp. of Mot. to Dismiss Ex. F.

On or around December 16, 2010, Defendant filed a motion to

dismiss Plaintiff’s state court complaint. On December 22, 2010,

Judge Lee B. Laskin, J.S.C. issued an order dismissing

Plaintiff’s state court complaint with prejudice. Def.’s Br. in

Supp. of Mot. to Dismiss Ex. I.

Defendant reports that the judgment was entered by the 1

Superior Court of New Jersey in Camden County. However, as

Plaintiff correctly states, the aforementioned action was filed

in Ocean County. Resp. to Def.’s Ans. 1.

Defendant issued an “information subpoena” and a “wage 2

notice” against Plaintiff. Def.’s Br. in Supp. of Mot. to Dismiss

6.

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On February 22, 2011, Plaintiff commenced the present action

by filing his Complaint in this Court. In the present action,

Plaintiff asserts that “Defendant is harassing and

misrepresenting his identity and purpose when calling for

personal information.” Compl. ¶ 4. Additionally, Plaintiff

asserts that these acts of alleged harassment were for the

purpose of “pursuing [the] collection of debt” in violation of

the FDCPA. Compl. ¶ 2. Defendant subsequently filed the motion to

dismiss that is presently before the Court.

III. DISCUSSION

A. Standard of Review

To give Defendant fair notice, and permit early dismissal if

the complained-of conduct does not provide adequate grounds for

the cause of action alleged, a complaint must allege, in more

than legal boilerplate, those facts about the defendant’s conduct

giving rise to liability. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007);

Fed.R.Civ.P. 8(a) and 11(b)(3). These factual allegations must

present a plausible basis for relief (i.e., something more than

the mere possibility of legal misconduct). See Ashcroft v. Iqbal,

-- U.S. --, --, 129 S.Ct. 1937, 1951, 173 L.Ed.2d 868 (2009).

In its review of a motion to dismiss pursuant to Rule

12(b)(6), Fed.R.Civ.P., the Court must “accept all factual

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allegations as true and construe the complaint in the light most

favorable to the plaintiff.” Phillips v. Cnty. of Allegheny, 515

F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). Additionally, a “pro

se complaint, however inartfully pleaded must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Montgomery v. Pinchak, 294 F.3d 492, 500 (3d Cir. 2002) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “In deciding motions

to dismiss pursuant to Rule 12(b)(6), courts generally consider

only the allegations in the complaint, exhibits attached to the

complaint, matters of public record, and documents that form the

basis of a claim.” Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d

Cir. 2004).

B. Res Judicata

The Court of Appeals for the Third Circuit has noted that

the doctrine of “res judicata protects litigants from the burden

of relitigating an identical issue with the same party or his

privy and promotes judicial economy by preventing needless

litigation.” Post v. Hartford Ins. Co., 501 F.3d 154, 169 (3d

Cir. 2007) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322,

327 (1979)) (internal quotations omitted). In applying the

doctrine of res judicata, “a federal court must give to a

state-court judgment the same preclusive effect as would be given

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that judgment under the law of the State in which the judgment

was rendered.” Walker v. Horn, 385 F.3d 321, 337 (3d Cir. 2004)

(quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.

75, 81 (1984)).

The New Jersey Supreme Court has noted that the purpose of

res judicata is to require litigants “to bring all possible

claims in one proceeding.” McNeil v. Legislative Apportionment

Comm’n of State, 177 N.J. 364, 395 (2003) (citation omitted).

Under New Jersey law, claim preclusion will prevent a litigant

from relitigating disputes that had been resolved in an earlier

proceeding if three requirements are met:

(1) the judgment in the prior action must be

valid, final, and on the merits; (2) the

parties in the later action must be identical

to or in privity with those in the prior

action; and (3) the claim in the later action

must grow out of the same transaction or

occurrence as the claim in the earlier one.

Watkins v. Resorts Int’l Hotel & Casino, Inc., 124 N.J. 398, 412

(1991) (citations omitted). With regard to the “transaction or

occurrence” prong, the Court elaborated, noting that “[c]laim

preclusion applies not only to matters actually determined in an

earlier action, but to all relevant matters that could have been

so determined.” Id.

Defendant has moved to dismiss the instant action on the

ground that Plaintiff’s now-terminated state court action against

him was a final judgment on the merits that bars relitigating the

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same claims in this case. See Schneider v. United States, Civ.

No. 06-3200, 2007 WL 4440976, at *5 (D.N.J. Dec. 17, 2007).

Defendant argues that Plaintiff’s action is barred by res

judicata because Plaintiff’s claims in both actions are based on

the same claims and were dismissed with prejudice in the prior

state court action between the parties. Defendant argues that

both of Plaintiff’s complaints “raise allegations of defendant’s

‘harassing’ conduct resulting from the identical collection

effort[s].” Def.’s Br. in Supp. of Mot. to Dismiss 10. Plaintiff

responds asserting that he made no FDCPA claim, nor did he claim

misrepresentation in his state court complaint.3

The Court agrees with Defendant that Plaintiff’s claims

against him are precluded by the entry of a final judgment on the

merits of his state court case. The first prong of the claim

preclusion inquiry — that the judgment in the prior action be

valid, final, and on the merits — is clearly satisfied in this

case. See Schneider, 2007 WL 4440976, at *5 (holding that the

state court’s order dismissing the plaintiff’s claims with

prejudice was “valid, final, and on the merits”). Here, the New

In his Response to Defendant’s Brief, Plaintiff further 3

asserts procedural arguments including, among other things, that

the “[i]nformation subpoena [was] not served correctly,” and

Defendant did not send timely notice of the state court’s

dismissal to Plaintiff. Resp. to Def.’s Ans. 1. The Court

concludes that these arguments concern, at most, Plaintiff’s

rights on appeal of his state court action, but do not appear to

affect the finality of the state court judgment.

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Jersey Superior Court ordered that Plaintiff’s state court action

be terminated with prejudice. A “dismissal ‘with prejudice’ is

treated as an adjudication of the merits and thus has preclusive

effect.” Fairbank’s Capital Corp. v. Milligan, 234 F. App’x. 21,

23 (3d Cir. 2007)(citing Gambocz v. Yelencsics, 468 F.2d 837, 840

(3d Cir. 1972)). The state court’s order thus was a final

judgment on the merits of Plaintiff’s claims.

The second prong of the res judicata analysis, the identity

of the parties in both actions, is likewise satisfied in this

case. The identity and alignment of the parties to the state

court action are the same in the instant case — Mr. Grossberger

is the sole plaintiff in this action as he was in state court,

and the defendant sued in state court, Mr. Saldutti, is the sole

defendant in this lawsuit. Therefore, the Court finds that the

second prong of the res judicata inquiry is satisfied in this

case.

Lastly, the Court agrees with Defendant that Plaintiff’s

claims in this case “grow out of the same transaction or

occurrence as the claim[s]” litigated in the state court action.

Watkins, 124 N.J. at 412. The underlying set of facts giving rise

to Plaintiff’s cause of action in both cases is identical. In

both his state and federal complaint, Plaintiff alleges that

Defendant did not entirely disclose his identity and harassed

Plaintiff during Defendant’s collection efforts. At the heart of

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both suits are Plaintiff’s claims resulting from Defendant’s

allegedly wrongful collection efforts. Thus, while Plaintiff

styles his claim in the instant action as, in part, a claim under

the FDCPA while he styled his state court action as simple

harassment, the “wrongful acts” complained of are identical in

both the instant action and the prior state action.

In state court, Plaintiff argued that “in [an] attempt to

obtain personal information” Defendant “harass[ed]” Plaintiff

“without full disclosure”. Def.’s Br. in Supp. of Mot. to Dismiss

Ex. F. In this action Plaintiff alleges that Defendant’s attempts

to collect violated federal law under the FDCPA, and additionally

were “harassing and misrepresenting his identity.” Resp. to

Def.’s Ans. 1. This District has held that a

[p]laintiff’s reference to new statutory bases

for recovery in [a subsequent] action does not

serve to create a new ‘transaction or

occurrence’ for claim preclusion purposes,

because the focus of the claim preclusion

inquiry is on the congruence of the factual,

rather than the legal, underpinnings of the

plaintiff’s suits.

Schneider, 2007 WL 4440976, at *5 (citing McNeil, 177 N.J. at

395). As the New Jersey Supreme Court explained, “[i]f, under

various theories, a litigant seeks to remedy a single wrong, then

that litigant should present all theories in the first action.

Otherwise, theories not raised will be precluded in a later

action.” McNeil, 177 N.J. at 395 (quoting Watkins, 124 N.J. at

413). Since an FDCPA claim may be brought in “any appropriate

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United States district court without regard to the amount in

controversy, or in any other court of competent jurisdiction,

within one year from the date on which the violation occurred,”

15 U.S.C. § 1692k (West 2010), Plaintiff was free to present his

additional arguments in his state court action. See also

FinanceCo of Kansas, Inc. v. Ledin, 231 P.3d 1086 (Kan. Ct. App.

2010) (holding that the Kansas state court “[c]learly . . . had

subject matter jurisdiction over the [FDCPA] action”); Pache

Mgmt. Co., Inc. v. Lusk, No. 96APE10-1302, 1997 WL 254096, at *4

(Ohio Ct. App. May 15, 1997) (noting that “15 U.S.C. § 1692k(d)

provides for state court jurisdiction over FDCPA actions”). Thus,

the Court finds that the third prong of the res judicata inquiry

is satisfied in this case.

The Court finds that in the prior state court proceedings, a

final judgment on the merits was rendered regarding the dispute

between Plaintiff and Defendant on the same transaction or

occurrence underlying the instant lawsuit. The Court accordingly

holds that the doctrine of res judicata bars Plaintiff’s claims

against Defendant in this case, and will grant Defendant’s motion

to dismiss.

IV. CONCLUSION

For the foregoing reasons, the Court will grant Defendant’s

motion to dismiss Plaintiff’s claims against him. The

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accompanying Order will be entered.

October 5, 2011 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

United States District Judge

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