Joan Grant BOYD, Sybil Taylor and Tonya Warters, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. NYCTL 1996-1 TRUST, NYCTL 1998-1 Trust, and NYCTL 1999-1 Trust, Defendants-Appellees, J.E. Robert Co., Inc., and JER Revenue Services, LLC, Defendants, 697 F. App'x 720

SUMMARY ORDER Three representatives of a putative class appeal from the judgment of the United States District Court for the Eastern District of New York (Cogan, J.) dismissing their claims as barred by res judicata. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. We affirm the district court’s judgment for the reasons that follow. Plaintiffs are three members of a proposed class of individuals who claim harm from the way New York City collects debts arising from unpaid water bills.

In 2005, they brought a class action (“Boyd I”) against the defendants in this case asserting Fair Debt Collection Practices Act (“FDCPA”) and state law claims. The district court in Boyd I dismissed the FDCPA claim on

summary judgment and—because the FDCPA claim was the only asserted basis for federal jurisdiction—declined to exercise supplemental jurisdiction over the state law claims. Boyd v. J.E. Robert Co., No. 05-CV-2455, 2013 WL 5436969 (E.D.N.Y. Sept. 27, 2013), aff'd Boyd v. J.E. Robert Co., 765 F.3d 123 (2d Cir. 2014) (per curiam). In 2015, the same three plaintiffs sued a nearly identical group of defendants (“Boyd II”) asserting RICO and state law claims based on the same facts as the prior suit.

This time, the plaintiffs asserted jurisdiction both on the basis of the federal RICO claim and the Class Action Fairness Act (“CAFA”). The district court dismissed all their claims pursuant to Rule 12(b)(6) on res judicata grounds, and the plaintiffs appeal only from the dismissal of their state law claims.

When there has been a “final judgment on the merits,” res judicata prevents a plaintiff in the initial case from bringing a second lawsuit against the same defendants arising from the same “transaction, or series of connected transactions” in order to “relitigat[e] issues that were or could have been raised” in the first case. Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 600 F.3d 190, 195-96 (2d Cir. 2010). Plaintiffs do not dispute that the parties in both Boyd cases are the same, or that the claims in both arise from the same set of transactions.

Instead, they argue that the decision in Boyd I was not a final judgment because dismissal was without prejudice, that the defendants waived their right to argue res judicata, and that the issue of federal jurisdiction under CAFA could not have been raised in Boyd I. The plaintiffs attempt to use the dismissal of Boyd I “without prejudice” to evade the bar of res judicata. We reject the “without prejudice” argument. See Epperson v. Entertainment Express, Inc., 242 F.3d 100 (2d Cir. 2001); Kale v. Combined Ins. Co. of Am., 924 F.2d 1161, 1165 n.3, 1167 (1st Cir. 1991).

The plaintiffs argue that the defendants waived their res judicata defense by asking the Boyd I court to dismiss the state law claims for lack of jurisdiction. It may be that res judicata generally does not apply when defendants acquiesce to the splitting of claims, but the defendants’ motion to dismiss in Boyd I does not constitute acquiescence or waiver. Defendants took the position that the plaintiffs could try to bring their claims in state court, not that they could try again in federal court.

Finally, the plaintiffs argue that they could not have raised CAFA jurisdiction in Boyd I because there was no “reasonable probability” that they could claim at least $5 million in damages, as federal jurisdiction under CAFA requires, 28 U.S.C. § 1332(d)(2); see Cutrone v. MERS, 749 F.3d 137, 142 (2d Cir. 2014). Arithmetic disproves their argument.

The plaintiffs’ initial complaint in Boyd I alleged that the named class members were overcharged by thousands of dollars, that there were thousands of other class members, and that the claims of the named plaintiffs were typical of the claims of the other class members. There was a “reasonable probability” that plaintiffs’ damages totaled at least $5 million, and plaintiffs thus indeed could have invoked CAFA jurisdiction in Boyd I. For the foregoing reasons, and finding no merit in the plaintiffs’ other arguments, we hereby AFFIRM the judgment of the district court. .

The Boyd I complaint is a public record of which we may take judicial notice. Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004).