Desmond Conboy; Brendan Gilsenan v. United States Small Business Administration

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-1726
____________
DESMOND CONBOY; BRENDAN GILSENAN,
Appellants
v.
UNITED STATES SMALL BUSINESS
ADMINISTRATION;
CBE GROUP; FIRST NATIONAL BANK, d/b/a Metro
Bank; SEDA COG
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-18-cv-00224)
District Judge: Honorable Malachy E. Mannion
____________
Submitted on January 21, 2021

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Before: HARDIMAN, ROTH, Circuit Judges, and
PRATTER, District Judge.∗
(Filed: March 19, 2021)
Joshua L. Thomas
225 Wilmington-West Chester Pike
Suite 200
Chadds Ford, PA 19317
Counsel for Appellants
David J. Freed
Samuel S. Dalke
Office of United States Attorney
Middle District of Pennsylvania
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee United States Small Business
Administration
Robbie Malone
Eugene X. Martin, IV
Malone Frost Martin
∗ The Honorable Gene E.K. Pratter, United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation.

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8750 North Central Expressway
NorthPark Central, Suite 1850
Dallas, TX 75231
Justin M. Tuskan
Metz Lewis Brodman Must O’Keefe
535 Smithfield Street
Suite 800
Pittsburgh, PA 15222
Counsel for Appellee CBE Group
Jeffrey E. Havran
Margolis Edelstein
220 Penn Avenue
Suite 305
Scranton, PA 18503
Counsel for Appellee Seda Cog
___________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Almost two decades ago, this Court declared that “[a]n
appeal is not just the procedural next step in every lawsuit,”
and the decision to challenge “an order of the District Court is
not a matter to be taken lightly.” Beam v. Bauer, 383 F.3d 106,
108 (3d Cir. 2004). Today we reemphasize these truths. In this
appeal, counsel for Appellants Desmond Conboy and Brendan

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Gilsenan filed a brief that was essentially a copy of the one he
filed in the District Court. Because the substance of this appeal
is as frivolous as its form, we will affirm the District Court’s
summary judgment and grant Appellee CBE Group’s motion
for damages under Rule 38 of the Federal Rules of Appellate
Procedure.
I
The case arises out of an unpaid debt. Appellants
Conboy and Gilsenan, with help from a $594,000 loan from the
United States Small Business Administration, bought and
renovated a commercial property in Harrisburg, Pennsylvania
that became Ceoltas Irish Pub. Conboy and Gilsenan executed
a note, mortgage, and unconditional guarantees that they would
repay the loan. The guarantees provided that federal law would
control the enforcement of the note and guarantees and that
Conboy and Gilsenan may not invoke any state or local law to
deny their obligation to the SBA.
Conboy and Gilsenan defaulted on the loan and sold the
property. The SBA allowed the sale to proceed but declined to
release Appellants from their loan obligations.
After repeated attempts to collect the debt failed, the
SBA assigned the debt to CBE Group for collection. Rather
than pay the debt, Conboy and Gilsenan sued the SBA, the
United States Treasury Department, First National Bank, Seda
Cog (an agency that facilitated the original loan transaction),
and CBE in the Court of Common Pleas of Monroe County,
Pennsylvania. The SBA removed the case to the United States
District Court for the Middle District of Pennsylvania. The
Treasury Department and First National Bank were dismissed
from the litigation with Conboy and Gilsenan’s consent.

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In an amended complaint, Conboy and Gilsenan alleged
federal claims for violating the Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. §§ 1692, et seq., and the Fair Credit
Reporting Act (FCRA), 15 U.S.C. §§ 1681, et seq. They also
alleged state law claims for violating the Pennsylvania Unfair
Trade Practices and Consumer Protection Law (UTPCPL), 73
P A. C ONS. S TAT . §§ 201-1, et seq., breach of contract, unjust
enrichment, and defamation.
After discovery, Defendants moved for summary
judgment, and CBE sought sanctions under Rules 11 and 37 of
the Federal Rules of Civil Procedure. CBE argued that Conboy
and Gilsenan brought frivolous claims and disobeyed
discovery orders. Conboy and Gilsenan filed an untimely brief
opposing both sanctions and summary judgment, which did not
include the separate responsive statement of material facts
required by Local Rule 56.1. Under the Local Rule, that failure
to provide a responsive statement conceded the material facts
set forth in the moving parties’ statements.
The District Court granted summary judgment and
denied the sanctions motions. It held, among other things: (1)
that the FDCPA and UTPCPL claims failed because neither
statute applies to commercial debts; (2) Conboy and Gilsenan
identified no material facts in the record supporting their
claims against Seda Cog, their unjust enrichment claim against
CBE, or their FCRA claim against the SBA; (3) the contract
claim against the SBA failed because Conboy and Gilsenan
“admitted”—by not filing a counterstatement of material
facts—that the unconditional loan guarantees foreclosed
bringing a state law claim to deny their loan obligations; (4)
they admitted they had no contract with CBE; and (5)
sovereign immunity barred the unjust enrichment and
defamation claims against the SBA. The District Court also

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held that “no extraordinary circumstances” justified Rule 11
sanctions, and that Rule 37 sanctions were unnecessary
because Conboy and Gilsenan’s conduct during discovery did
not “significantly prejudice[] CBE.” Conboy v. U.S. Small Bus.
Admin., 2020 WL 1244352, at *7 (M.D. Pa. Mar. 16, 2020).
Conboy and Gilsenan appealed the summary judgment.
II1
Conboy and Gilsenan’s opening brief begins with a
proper introductory sentence arguing that the District Court
should not have granted summary judgment. Opening Br. at 1.
But it quickly goes awry in the next paragraph: “The district
court has subject-matter jurisdiction over this case . . . .” Id.
One could readily assume that the sentence included a
typographical error, using “has” instead of “had.” But just two
sentences later, the brief declares: “Venue is appropriately laid
in the District Court of New Jersey . . . .” Id. This second use
of the present tense, denoting the wrong trial court, presages
what comes after, which belies the notion of an honest mistake.
In the first sentence of his legal argument, counsel
describes the summary judgment standard. Id. at 6. Two pages
later, he argues that “summary judgment should be denied
. . . .” Id. at 8. In the next section of his argument, counsel again
writes as if the case remains in the District Court, claiming
“there is no reason to grant summary judgment based on
jurisdictional reasons for either party.” Id. at 13. Apart from
1 The District Court had jurisdiction under 28 U.S.C. §§ 1331,
1367, and 15 U.S.C. § 1692k(d). We have jurisdiction under
28 U.S.C. § 1291. We review the District Court’s summary
judgment de novo. Faush v. Tuesday Morning, Inc., 808 F.3d
208, 215 (3d Cir. 2015).

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these unusual (and inappropriate) references to the case
pending in the District Court, counsel’s fifteen pages of
“argument” do not mention how the District Court erred. This
left us with the suspicion that something was amiss with
counsel’s brief.
Unfortunately, our suspicions were confirmed. Counsel
for Conboy and Gilsenan simply took the summary judgment
section of his District Court brief and copied and pasted it into
his appellate brief, with minor changes such as swapping
“Defendant” for “Appellee.” Compare Appendix A hereto,
with Appendix B. This is not proper appellate advocacy.
Unsurprisingly, the lack of appellate argument reflects
the correctness of the District Court’s summary judgment. The
Court properly granted judgment on the UTPCPL and FDCPA
claims because those statutes apply to consumer debts, not
commercial ones like the debt at issue. In re Smith, 866 F.2d
576, 583 (3d Cir. 1989) (73 P A. C ONS. S TAT . § 201-9.2, the
UTPCPL section on private actions, applies “only [to] those
persons who purchase or lease goods or services primarily for
consumer use rather than for commercial use”); Staub v.
Harris, 626 F.2d 275, 278 (3d Cir. 1980) (the FDCPA “was
intended to apply only to debts contracted by consumers for
personal, family or household purposes” (citation and internal
quotation marks omitted)). Conboy and Gilsenan did not
identify evidence supporting their claims against Seda Cog,
their unjust enrichment claim against CBE, or their FCRA
claim against the SBA. Nor did they point to evidence of any
contract with CBE. In addition, the unconditional loan
guarantees preempted the contract claim against the SBA, and
the defamation claim against the SBA failed because of
sovereign immunity. See Brumfield v. Sanders, 232 F.3d 376,
382 (3d Cir. 2000) (“[D]efamation suits against the United

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States are prohibited.”). Finally, although we have not
explicitly addressed whether the United States has waived
sovereign immunity as to unjust enrichment claims, we need
not resolve that issue here because Conboy and Gilsenan cited
no record evidence creating a factual dispute material to their
unjust enrichment claim against the SBA. See Kabakjian v.
United States, 267 F.3d 208, 213 (3d Cir. 2001) (“We may
affirm a judgment on any ground apparent from the record.”).
Regrettably, counsel’s response to CBE’s motion for
damages under Rule 38 of the Federal Rules of Appellate
Procedure is yet another copy-and-paste job. Counsel copied
Conboy and Gilsenan’s previous opposition to sanctions in the
District Court under Civil Rules 11 and 37—with only
insignificant alterations and additions. Compare Appendix C
hereto, with Appendix A at 10–12. Contrary to counsel’s
assertion, the Rule 38 motion did not duplicate the sanctions
motions, and we will grant it even though the District Court’s
denial of sanctions was well within its discretion.
Rule 38 authorizes compensatory damages—not
sanctions or punishment—to reimburse appellees who must
defend judgments against frivolous appeals, “and to preserve
the appellate court calendar for cases worthy of consideration.”
Kerchner v. Obama, 612 F.3d 204, 209 (3d Cir. 2010) (quoting
Huck v. Dawson, 106 F.3d 45, 52 (3d Cir. 1997)); Beam, 383
F.3d at 108. We “employ[] an objective standard to determine
whether or not an appeal is frivolous” on the merits, without
considering appellants’ “good or bad faith.” Kerchner, 612
F.3d at 209 (quoting Hilmon Co. (V.I.) v. Hyatt Int’l, 899 F.2d
250, 253 (3d Cir. 1990)). “Here, despite many cues from . . .
the District Court that [their] cause was wholly meritless,” see
Beam, 383 F.3d at 109, Conboy and Gilsenan’s counsel filed a
copy-and-paste appeal without bothering to explain what the

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District Court did wrong. It is hard to imagine a clearer case
for Rule 38 damages.
We may impose these damages on clients, but here we
will place responsibility for payment on the lawyer. See id.
“[A]ttorneys have an affirmative obligation to research the law
and to determine if a claim on appeal is utterly without merit
and may be deemed frivolous.” Hilmon, 899 F.2d at 254.
“[B]ecause it would be unfair to charge a damage award
against [parties who have] relied upon [their] counsel’s
expertise in deciding whether to appeal, we have routinely
imposed Rule 38 damages upon counsel when a frivolous
appeal stems from counsel’s professional error.” Beam, 383
F.3d at 109. In this case, Conboy and Gilsenan’s attorney is to
blame for recycling meritless arguments without engaging the
District Court’s analysis.
* * *
It’s not easy to become a lawyer. The practice of law is
challenging, and even the best lawyers make mistakes from
time to time. So we err on the side of leniency toward the bar
in close cases. But the copy-and-paste jobs before us reflect a
dereliction of duty, not an honest mistake. We will therefore
affirm the District Court’s summary judgment and grant CBE’s
motion for Rule 38 sanctions after counsel for CBE files an
appropriate fee petition and counsel for Appellants has a
chance to respond.

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APPENDIX A
An unaltered copy of Appellants’ District Court brief
opposing summary judgment and sanctions

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DESMOND CONBOY and BRENDAN
GILSENAN,
Plaintiffs,
v.
CBE Group, Seda Cog, First National Bank
s/b/m Metro Bank and U.S. Small Business
Administration
Defendant.
CIVIL ACTION NO.: 3:18-CV-00224
Civil Action
PLAINTIFF’S OPPOSITION TO DEFENDANTS U.S. SMALL BUSINESS
ADMINISTRATION’S, CBE GROUP AND SEDA COG MOTIONS FOR SUMMARY
JUDGMENT AND SANCTIONS
STATEMENT OF FACTS
Plaintiffs sold the property, known as 310 North Second Street, Harrisburg PA 18360 by
on February 17, 2016. (See Exhibit A – HUD1) 1. As part of that sale, there were two loans paid
off to First National Bank S/B/M Metro Bank, the first mortgage of $432,113.49 and the second
mortgage for $45,340.43. Defendant SBA was responsible for backing the second mortgage that
was paid off the $45,340.43. Defendant SBA signed off and agreed to permit this sale to take
place. As such, there was an alleged deficiency to the SBA of $276,315.61. This information
was, in fact, sent for the first time to Plaintiffs on September 3, 2016, which was 6 months and
18 days after the sale. (See Exhibit B). This was beyond the 6 month cutoff for a deficiency
judgment on a mortgage to be pursued. After that time, Defendant SBA transferred the debt
1 All exhibits incorporated by reference from prior pleading and complaint for sake of brevity.
Case 3:18-cv-00224-MEM Document 55 Filed 11/10/19 Page 1 of 12

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improperly to Defendant CBE Group. As of October 19, 2017, Defendant CBE has not only
made many collection attempts in writing, but added on interested and fees so the current debt
balance is now allegedly at $374,258.64. (see Exhibit C). At no time was a lawsuit brought or a
judgment received during the 6 month period after the sale of the property took place. Defendant
CBE has been informed that their collection efforts are not legal, yet they have continued to
pursue those efforts despite this knowledge. Further, on or around February 9, 2018, Defendant
SBA reported an outstanding balance to the Credit Bureaus for Mr. Conboy. This report stated
that the account was allegedly opened on April 15, 2005, the “high balance” was for $594,000,
there was a balance of 271,799 and the last time Mr. Conboy allegedly made a payment was
October 11, 2017. Further, it had a status of “charged off”. This report was done solely to
damage Mr. Conboy’s credit and in retaliation for the filing of this suit, as there had never been a
report previously. There was no reasonable or legal reason for this report, and it was done for
completely improper purposes, with the express intent to damage Mr. Conboy, his ability to
receive credit and to defame him for anyone else who would potentially attempt to lend him
money and see such a derogatory report.
Further, there is no question that Seda Cog had an interest in this matter. (See Exhibit D –
modification). Additionally, they were communicating with Plaintiff as late as 2015. Some of the
people who communicated with Plaintiff from Seda Cog were X and B. There is no question
they still had an interest in this matter and were actively attempting to collect on this debt. As
such, they belong as a party to this matter as well.
LEGAL ARGUMENT
I. BOTH DEFENDANTS’ MOTIONS FAIL TO SHOW THEY ARE ENTITLED
TO SUMMARY JUDGMENT
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Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The “mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A
fact is only “material” for purposes of a summary judgment motion if a dispute over that fact
“might affect the outcome of the suit under the governing law.” Id. at 248. A dispute about a
material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. The dispute is not genuine if it merely involves “some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986).
The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its
burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Once the moving party
meets its initial burden, the burden then shifts to the nonmovant who must set forth specific facts
showing a genuine issue for trial and may not rest upon the mere allegations, speculations,
unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d
Cir. 2001). “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the non-moving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at
255). Furthermore, in deciding the merits of a party's motion for summary judgment, the court's
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role is not to evaluate the evidence and decide the truth of the matter, but to determine whether
there is a genuine issue for trial. Anderson, 477 U.S. at 249.
In this case, summary judgment should be denied because Defendants not only rely on
insufficient evidence, but outdated case law, inapplicable arguments and their evidence is so
contradictory, that Defendants essentially defeat themselves with their own evidence. To further
these proofs though, Defendants now present their own evidence as well, to show substantial
material facts now in issue.
As stated in the relatively recent case, Tepper v Amos, No. 17-2851 3rd Cir., Aug. 7, 2018, The
Court discussed the “default” test and ultimately choose to say that, based on the Supreme court
case of Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017), it would no longer
apply. Instead, the court chose to follow the plain text of the statute: “an entity whose principal
purpose of business is the collection of any debts is a debt collector regardless whether the entity
owns the debts it collects. Id.
Further, the FDCPA is a “remedial legislation” aimed, as already noted, “to eliminate
abusive debt collection practices by debt collectors.” Kaymark v. Bank of Am., N.A., 783 F.3d
168, 174 (3d Cir. 2015) (quoting § 1692(e); Caprio v. Healthcare Revenue Recovery Grp., LLC,
709 F.3d 142, 148 (3d Cir. 2013)). Importantly, it applies only to “debt collectors,” Pollice v.
Nat’l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000), defined as any person: (1) “who uses
any instrumentality of interstate commerce or the mails in any business the principal purpose of
which is the collection of any debts” (the “principal purpose” definition); or (2) “who regularly
collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or
due another” (the “regularly collects for another,” or “regularly collects,” definition).1 §
1692a(6). Further, and most importantly, “The FDCPA is a strict liability statute to the extent
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that it imposes liability without proof of an intentional violation.” Allen ex. rel, Martin v.
LaSalle Bank, N.A., 629 F.3d 364, 368 (3d Cir. 2011).
As stated previously, the Supreme Court, in Henson v. Santander Consumer USA Inc.,
137 S. Ct. 1718 (2017), has recently repealed the “default” test. Debtors claimed that Santander
Bank, which had purchased their loans already in default and attempted to collect on them, met
the second definition of “debt collector,” i.e., one who “regularly collects or attempts to collect . .
. debts owed or due . . . another.” Id. at 1721 (quoting § 1692a(6)). They asserted as well that the
Bank met the “principal purpose” definition, but the Court did not review that claim because it
was not litigated in the District Court. Id. The Supreme Court began “with a careful examination
of the statutory text,” in particular the definition’s limitation to debts “owed . . . another.” Id. It
reasoned that “by its plain terms this language seems to focus our attention on third party
collection agents working for a debt owner—not on a debt owner seeking to collect debts for
itself.” Id. This language does not suggest that “whether the owner originated the debt or came
by it only through later purchase” determines if it is a debt collector. Id. “All that matters is
whether the target of the lawsuit regularly seeks to collect debts for its own account or does so
for ‘another.’” Id. Hence the Bank, which collected debts for its own account, did not meet the
“regularly collects for another” definition. Id. at 1721–22. The Court also addressed the
suggestion that everyone who attempts to collect debt is either a “debt collector” or a “creditor”
with respect to a particular debt, but cannot be both. Id. “[S]potting (without granting) th[at]
premise,” it stated that a company such as the Bank, which collects on debt it purchased for its
own account, “would hardly seem to be barred from qualifying as a creditor under the statute’s
plain terms.” Id. But excluded from the definition of “creditor” are those who acquire a debt after
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default when the debt is assigned or transferred “solely for the purpose of facilitating collection
of such debt for another.” Id. (quoting § 1692a(4)).
II. DEFENDANT SBA’s MOTION FOR SUMMARY JUDGMENT MUST BE
DENIED
This Court has subject matter jurisdiction under 28 U.S.C. § 1331 because this action
arises in part out of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et. seq. and Fair
Credit Reporting Act (the “FCRA”), 15 U.S.C. § 1681, et seq. See Alfaro V. Wells Fargo N.A.,
d/b/a America's Servicing Company, Civil Action No. 16-7950 (DNJ 2017). While it is accurate
that these are not the only claims, they are the Federal claims in this matter and, it is bad faith for
Defendant to only remove the action and the turn around and claim the court lacks jurisdiction
and also to move for summary judgment on similar grounds. See Generally Rivas v. Bowling
Green Associates, L.P. No. 13-cv-7812, , at *4-5 (S.D.N.Y. July 24, 2014)). As such, for
Defendant to remove to Federal Court, for the sole purpose of attempting dismissal or procuring
improper summary judgment, would be tantamount to bad faith. Further, there is no question that
this court can hear the related state claims as well based on Supplemental jurisdiction.
Supplemental jurisdiction is the authority of United States federal courts to hear additional
claims substantially related to the original claim even though the court would lack the subject-
matter jurisdiction to hear the additional claims independently. 28 U.S.C. § 1367. As such, there
is no reason to grant summary judgment based on jurisdictional reasons for either party.
As stated by Defendant, it is axiomatic that the United States and its agencies and officers
are immune from suit unless they have consented to be sued. FDIC v. Meyer, 510 U.S. 471, 475
(1994); United States v. Mitchell, 445 U.S. 535, 538 (1980). In re Epps, 110 B.R. 691 (E.D. Pa.
1990) (sovereign immunity waived under National Housing Act authorizing HUD to "sue and be
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sued" in carrying out certain provisions of the Act). Such "sue and be sued" statutes waive
sovereign immunity only of particular agencies, not the United States generally. See Lomas &
Nettleton Co. v. Pierce, 636 F.2d 971, 972-73 (5th Cir. 1981); Indus. Indem., Inc. v. Landrieu,
615 F.2d 644, 646 (5th Cir. 1980). If the judgment sought by the plaintiff would "expend itself
on the public Treasury," the suit is in reality against the United States regardless of whether the
complaint names only Federal agencies or officials. Dugan v. Rank, 372 U.S. 609, 620 (1963)
(quoting Land v. Dollar, 330 U.S. 731, 738 (1947)); see also FHA V. Burr, 309 U.S. 242, 250-51
(1940) (garnishment action against Federal agency permitted only to the extent it had funds
outside the Treasury); Presidential Gardens Assocs. v. United States ex rel. Sec'y of HUD, 175
F.3d 132, 141 (2d Cir. 1999) (waiver of HUD's immunity limited to funds under control of HUD,
does not reach general Treasury funds). Finally, in the case of "sue-and-be-sued" agencies, one
can argue that, although such governmental units may have independent litigating authority, the
Bankruptcy Code, § 106, places limits upon the jurisdiction of the bankruptcy courts over any
governmental unit. Cf. Aetna Cas. & Sur. Co. v. United States, 655 F.2d 1047 (Ct. Cl. 1981)
(although HUD might be suable in other courts upon certain causes of action, Tucker Act places
limits upon Court of Claims' jurisdiction over them).
In this case, by transferring the interest in the underlying debt for the sole purpose of
attempting to collect on that debt, that was an affirmative action that effectively waived
sovereign immunity. Even though it is admitted that the SBA transferred the debt, they were still
responsible for the apparent “deficiency” and the initiation of the transfer. As such, even the
SBA was not the primary party to begin the debt collection process, it was still their actions that
permitted it to proceed. As such, they can be sued for their actions that left to the collection
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action, even if they were not directly the party doing so. Specifically, the SBA can be held
accountable for their actions under the FCRA.
In Kent v. TransUnion, plaintiff Rowdy Kent sued multiple consumer reporting agencies
and the United States Defense Finance and Accounting Services for alleged violations of the Fair
Credit Reporting Act. See Kent v. Trans Union, LLC, docket number 16-322 (2017) DFAS
moved to dismiss Kent’s claims, arguing that it possesses sovereign immunity from claims under
the FCRA. On August 25, 2017 the District Court for the Northern District of Texas rejected
DFAS’s contention, finding that Congress had waived sovereign immunity for claims under the
FCRA. As such, because the actions taken by the SBA led to damage to Plaintiff Conboy’s
credit, that is enough to keep them in the case for the FCRA violation and related stated claims
as well as not granting summary judgment.
Further, there is a relevant exception to the sovereign immunity waiver. If the plaintiff
seeks less than $10,000 in damages, the federal district courts have concurrent jurisdiction with
the United States Court of Federal Claims based on 28 U.S.C. § 1346, also known as the “Little
Tucker Act”. The current version gives concurrent jurisdiction to the Court of Federal Claims
and the District Courts "for the recovery of … any sum alleged to have been excessive or in any
manner wrongfully collected … and for claims below $10,000" See 28 U.S.C. § 1346(a)(2). For
this case, Plaintiffs are willing to limit their claim against the SBA to below $10,000.00 for the
damage they caused through the transfer they effectuated as well as the damage to credit,
particularly if the SBA agrees to repair said damage. As such, even if the FDCPA cannot be
brought against Defendant SBA, it can still proceed against the other Defendants and as such,
summary judgment should be granted to the claim fully. As such, the SBA essentially admitted
and agreed that the other claims, as long as they are each limited to $10,000.00 can proceed. The
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only other “argument” is a failure to exhaust “administrative remedies” but in none of the
pleadings is it stated what remedies should have been pursued before filing this suit. As such,
this argument should be considered a red herring at most, and can be denied.
III. DEFENDANT SED COGA AND CBE GROUP’S MOTION FOR SUMMARY
JUDGMENT MUST BE DENIED
Seda Cog and CBE Group rely primarily on the assertion they “transferred their rights
away” in 2006. This simply is not accurate, as a modification was signed with them in 2013 (see
Exhibit D) and they were contacting Plaintiff as late as 2015. As such, their implicit statute of
limitations argument against the claims against them must be denied.
Several of the above arguments can be applied to Seda Cog as well and are incorporated
by reference. As in the Alfaro case, the Plaintiffs are “not inviting the district court to review and
reject any state judgment under this cause of action.” Alfaro V. Wells Fargo N.A., d/b/a
America's Servicing Company, Civil Action No. 16-7950 (DNJ 2017). The reason for this is
because the actionable offenses that the statute would have applied occurred, as Defendants
admitted well within the two years statute. The actions that occurred by Defendant previously
clearly show the scheme at issue here. Even though they try to claim they had no interest since
2006, that is simply not accurate. As such, they must remain as Defendants in this action for all
of the damages caused to Plaintiffs,
As to the breach of contract, unjust enrichment and the other state claims, the statute that
applies is the a four year statute, rather than a two year statue, as per either 42 Pa. Consol. Stat. §
5525(7), (8); 42 Pa. Consol. Stat. § 5529 for written contracts or 42 Pa. Consol. Stat. § 5525(3)
for oral contracts. These relate to the modification that was offered and which payments were
made on it.
Case 3:18-cv-00224-MEM Document 55 Filed 11/10/19 Page 9 of 12

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10
Additionally, there should be no question that Defendant Seda Cog can be considered a
Debt Collector. Defendant squarely falls into the definition of a “debt collector” because they
certainly qualify as “any person who uses any instrumentality of interstate commerce or the
mails in any business the principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be
owed or due another.” 15 U.S.C. § 1692(a)(6). Further, a party is also a “debt collector” if the
obligation is already in default when it is assigned. Evankavitch v. Green Tree Servicing, LLC,
793 F.3d 355, 358, fn. 2 (3d Cir. 2015). In this case, by either standard, Defendant would be
considered a debt collector, as through their actions there is now an attempt to collect the
underlying debt in question. Finally whether or not a party was a “debt collector” is a material
fact for a fact finder to decide. A mere allegation a part was not is insufficient and since
Defendants attached no actual evidence to this matter, the argument should be deemed moot.
IV. THE MOTIONS FOR SANCTIONS SHOULD BE DENIED
Defendants’ motions utterly lacks merit and was filed for an improper purpose, and its
denial should be compounded by a corresponding levy of sanctions and costs against Defendants.
Defendants have used both the threat and the filing of the motion, not as a means to filter a
frivolous claim but as a bullying tactic intended to intimidate Plaintiffs into withdrawing
legitimate claims This misuse of Rule 11 is in and of itself sanctionable. Indeed, the Advisory
Committee notes point out that Rule 11 should not be used “to emphasize the merits of a party’s
position, to exact an unjust settlement, [or] to intimidate an adversary into withdrawing
contentions that are fairly debatable.” See Laborers Local 938 Joint Health & Welfare Trust
Fund v. B.R. Starnes Co. of Florida, 827 F.2d 1454, 1458 (11th Cir. 1987) (affirming the denial
Case 3:18-cv-00224-MEM Document 55 Filed 11/10/19 Page 10 of 12

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11
of sanctions where the issues were fairly debatable and not easily resolved, and there was no
clear binding precedent).
The standard under Rule 11 is “stringent” because sanctions “1) are in derogation of the general
American policy of encouraging resort to the courts for peaceful resolution of disputes, 2) tend to
spawn satellite litigation counter-productive to efficient disposition of cases, and 3) increase
tensions among the litigating bar and between [the] bench and [the] bar.” Doering v. Union Cty.
Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir. 1988). While the focus of Rule 11 is on
whether a claim is wholly without merit, and is not dictated by whether resources will be
expended in deciding the motion, Rule 11 motions should conserve rather than misuse judicial
resources. See Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 99 (3d Cir. 1988) (“Rather than
misusing scarce resources, [the] timely filing and disposition of Rule 11 motions should conserve
judicial energies.”).
Defendants’ motions fail not only for its lack of merit, but it also violates the ethical
underpinnings of Rule 11. Rule 11 imposes a duty on the party seeking sanctions to be
circumspect in pursuing such a drastic remedy and to not to use the device for an improper
purpose lest it may discourage expansion of the law through creative legal theories. See Ario v.
Underwriting Members of Syndicate 53 at Lloyds, 618 F.3d 277, 297 (3d Cir. 2010) (Rule 11
“should not be applied to adventuresome, though responsible, lawyering which advocates
creative legal theories.”)(citations omitted). Sanctions are a drastic remedy reserved for only the
most extraordinary circumstances. See, Park v. Seoul Broad. Sys. Co., 2008 U.S. Dist. LEXIS
17277, at *1 (S.D.N.Y. Mar. 6, 2008). Whether a claim can survive on the merits is wholly
distinct from whether that claim is frivolous. See Abdelhamid v. Altria Group, Inc., 515 F. Supp.
2d 384, 392 (S.D.N.Y. 2007)(“‘When divining the point at which an argument turns from merely
Case 3:18-cv-00224-MEM Document 55 Filed 11/10/19 Page 11 of 12

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12
losing to losing and sanctionable’ courts must ‘resolve all doubts in favor of the signer of the
pleading.’”)
V. CONCLUSION
For the foregoing reasons, Defendants respectfully request that this Court deny
Defendants’ motions in full.
_/s/ Joshua Thomas, Esq._
Joshua Thomas, Esq.
Attorneys for Plaintiffs
Dated: September 30, 2019
Case 3:18-cv-00224-MEM Document 55 Filed 11/10/19 Page 12 of 12

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APPENDIX B
A redline copy of Appellants’ opening appellate brief
compared to their District Court brief

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No. 20-1726
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
DESMOND CONBOY and
BRENDAN GILSENAN
v.
CBE GROUP, SEDA COG, FIRST NATIONAL BANK S/B/M
METRO BANK AND U.S. SMALL BUSINESS
ADMINISTRATION
DESMOND CONBOY and
BRENDAN GILSENAN,
Appellant
On Appeal from the U.S. District Court
for the MIDDLE DISTRICT OF PENNSYLVANIA
Civil Action No. 3:18-CV-00224
APPELLANT’S OPENING BRIEF AND
APPENDIX
Attorney for Appellants
Joshua L. Thomas & Associates
Joshua Thomas Esq.
Supreme Court ID No. 312476
225 Wilmington-West Chester Pike Suite 200
Chadds Ford, PA 19317
Phone: (215) 806-1733
Fax: (888) 314-8910
Email: JoshuaLThomas@gmail.com

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ii
TABLE OF CONTENTS
TABLE OF CONTENTS ....................................... i
TABLE OF AUTHORITIES .................................. iiii
I. INTRODUCTION ....................................... 1
II. STATEMENT OF JURISDICTION ............................ 1
III. STATEMENT OF ISSUES ................................. 2
IV. STATEMENT OF THE RELATED CASES ........................ 2
V. STATEMENT OF THE CASE AND FACTS ....................... 2
VI. STANDARD OF REVIEW .................................. 5
VII. LEGAL ARGUMENT ...................................... 6
1.Both Appellees’ Motions Failed To Show They Were
Entitled To Summary Judgment………………………………………………… 6
2.Appellee Sba’s Motion For Summary Judgment Should
Have Been Be Denied………..........................12
3.Appellee Sed Coga And Cbe Group’s Motion For
Summary Judgment Should Have Been Denied ……....18
VIII. CONCLUSION ....................................... 21
IX. CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,
TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS .......... 22
X. CERTIFICATE OF IDENTICAL COMPLIANCE OF BRIEFS AND
CERTIFICATE OF PERFORMANCE OF VIRUS CHECK .................. 23
XI. CERTIFICATE OF SERVICE .............................. 24

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iii
TABLE OF AUTHORITIES
Federal and State Codes
15 U.S.C. § 1681 .................................... 10
15 U.S.C. § 1692(e) .................................. 8
15 U.S.C. § 1692a ............................. 8, 9, 14
28 U.S.C. § 1331 ................................... 10
28 U.S.C. § 1367 ...................................10
42 Pa. Consol. Stat. § 5525 . ........................ 13
42 Pa. Consol. Stat. § 5529 . ........................ 13
Fed. R. Civ. P. 56(a). ................................ 6
Court Cases
Alfaro V. Wells Fargo N.A., d/b/a America's Servicing Company, Civil Action No.
16-7950 (DNJ 2017) ................................... 8, 13
Allen ex. rel, Martin v. LaSalle Bank, N.A., 629 F.3d 364, 368 (3d Cir. 2011) .... 8
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). .............. 6
Caprio v. Healthcare Revenue Recovery Grp., LLC, 709 F.3d 142, 148
(3d Cir. 2013) ........................................... 8
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) .................. 7
Cf. Aetna Cas. & Sur. Co. v. United States, 655 F.2d 1047 (Ct. Cl. 1981) .......... 11
Dugan v. Rank, 372 U.S. 609, 620 (1963) ......................... 11
Evankavitch v. Green Tree Servicing, LLC,
793 F.3d 355, 358, fn. 2 (3d Cir. 2015). .......................... 14
FDIC v. Meyer, 510 U.S. 471, 475 (1994) ......................... 10
FHA V. Burr, 309 U.S. 242, 250-51 (1940) ............................ 11
Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017) ....... 7, 9
In re Epps, 110 B.R. 691 (E.D. Pa. 1990) ......................... 10
Indus. Indem., Inc. v. Landrieu, 615 F.2d 644, 646 (5th Cir. 1980) ......... 11

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iv
Lomas & Nettleton Co. v. Pierce, 636 F.2d 971, 972-73 (5th Cir. 1981) .. 10, 11
Kaymark v. Bank of Am., N.A., 783 F.3d 168, 174 (3d Cir. 2015) ........... 8
Kent v. Trans Union, LLC, docket number 16-322 (2017) .................... 12
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) ............ 7
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) ... 7
Presidential Gardens Assocs. v. United States ex rel. Sec'y of HUD, 175 F.3d 132,
141 (2d Cir. 1999) ....................................... 11
Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000) .......... 8
Rivas v. Bowling Green Associates, L.P. No. 13-cv-7812, , at *4-5 (S.D.N.Y. July 24,
2014)) .............................................. 10
Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001) ................... 7
Tepper v Amos, No. 17-2851 3rd Cir., Aug. 7, 2018 ..................... 7
United States v. Mitchell, 445 U.S. 535, 538 (1980) ................... 10
>$SSHOODWHEULHI VIURQWPDWWHUUHSODFHG'LVWULFW&RXUWEULHI VFDSWLRQ@

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1
I. INTRODUCTION
The primary issue at the heart of this case is,
that summary judgment was improperly granted, and the
parties should have been permitted to have this heard
on the merits, as it should have been.
II. STATEMENT OF JURISDICTION
The district court has subject-matter
jurisdiction over this case pursuant to 28 U.S.C. §
1331, and 28 U.S.C. § 1332. This Court has
supplemental jurisdiction over Appellees and the
state law based claims pursuant to 28 U.S. Code §
1367. Venue is appropriately laid in the District
Court of New Jersey pursuant to 28 USC §1391(b)(2) as
the events giving rise to the claim occurred
substantially within the State of New Jersey. This
Court has jurisdiction over this appeal under 28 U.S.
Code §᩿ 1291 (Final decisions of district courts).
III. STATEMENT OF ISSUES
1.Whether Appellees’ Motions Failed To Show They Were
Entitled To Summary Judgment?

-- 28 of 57 --

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-- 29 of 57 --

3
$276,315.61. This information was, in fact, sent for the
first time to Appellants on September 3, 2016, which was
6 months and 18 days after the sale. (See APPENDIX A1).
This was beyond the 6 month cutoff for a deficiency
judgment on a mortgage to be pursued. After that time,
Appellee SBA transferred the debt improperly to Appellee
CBE Group. As of October 19, 2017, Appellee CBE has not
only made many collection attempts in writing, but added
on interested and fees so the current debt balance is
now allegedly at $374,258.64. (see APPENDIX A1). At no
time was a lawsuit brought or a judgment received during
the 6 month period after the sale of the property took
place. CBE has been informed that their
collection efforts are not legal, yet they have
continued to pursue those efforts despite this
knowledge. Further, on or around February 9, 2018,
Credit Bureaus for Mr. Conboy. This report stated that
the account was allegedly opened on April 15, 2005, the
“high balance” was for $594,000, there was a balance of
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-- 30 of 57 --

4
271,799 and the last time Mr. Conboy allegedly made a
payment was October 11, 2017. Further, it had a status
of “charged off”. This report was done solely to damage
Mr. Conboy’s credit and in retaliation for the filing
of this suit, as there had never been a report
previously. There was no reasonable or legal reason for
this report, and it was done for completely improper
purposes, with the express intent to damage Mr. Conboy,
his ability to receive credit and to defame him for
anyone else who would potentially attempt to lend him
money and see such a derogatory report.
Further, there is no question that Seda Cog had an
interest in this matter. (See A1 –
modification). Additionally, they were communicating
with Appellant as late as 2015. Some of the people who
communicated with Appellant from Seda Cog were X and B.
There is no question they still had an interest in this
matter and were actively attempting to collect on this
debt. As such, they belong as a party to this matter as
well.
APPENDIX
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3ODLQWLII

-- 31 of 57 --

5
VI. STANDARD OF REVIEW
This Court reviews de novo a district court’s
ruling on an order to dismiss for failure to state a
claim. McTernan v. City of York, 577 F.3d 521, 526,
530-31 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556
U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007) ). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). “Factual
allegations must be enough to raise a right to relief
above the speculative level,” Twombly, 550 U.S. at
555, and a complaint must plead specific facts that
raise “more than a sheer possibility that a Appellee
has acted unlawfully,” Iqbal, 556 U.S. at 678. A court
need not, and may not, accept legal conclusions
packaged as factual allegations. See, e.g., Iqbal, 556
U.S. at 678-79; Twombly, 550 U.S. at 555-56.

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-- 33 of 57 --

7
The moving party must show that if the evidentiary
material of record were reduced to admissible evidence
in court, it would be insufficient to permit the
nonmoving party to carry its burden of proof. Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Once the
moving party meets its initial burden, the burden then
shifts to the nonmovant who must set forth specific facts
showing a genuine issue for trial and may not rest upon
the mere allegations, speculations, unsupported
assertions or denials of its pleadings. Shields v.
Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001). “In
considering a motion for summary judgment, a district
court may not make credibility determinations or engage
in any weighing of the evidence; instead, the non-moving
party’s evidence ‘is to be believed and all justifiable
inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)
(quoting Anderson, 477 U.S. at 255). Furthermore, in
deciding the merits of a party's motion for summary
judgment, the court's role is not to evaluate the

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-- 35 of 57 --

9
debt collector regardless whether the entity owns the
debts it collects. Id.
Further, the FDCPA is a “remedial legislation”
aimed, as already noted, “to eliminate abusive debt
collection practices by debt collectors.” Kaymark v.
Bank of Am., N.A., 783 F.3d 168, 174 (3d Cir. 2015)
(quoting § 1692(e); Caprio v. Healthcare Revenue
Recovery Grp., LLC, 709 F.3d 142, 148 (3d Cir. 2013)).
Importantly, it applies only to “debt collectors,”
Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 403
(3d Cir. 2000), defined as any person: (1) “who uses any
instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the
collection of any debts” (the “principal purpose”
definition); or (2) “who regularly collects or attempts
to collect, directly or indirectly, debts owed or due
or asserted to be owed or due another” (the “regularly
collects for another,” or “regularly collects,”
definition).1 § 1692a(6). Further, and most importantly,
“The FDCPA is a strict liability statute to the extent

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10
that it imposes liability without proof of an
intentional violation.” Allen ex. rel, Martin v. LaSalle
Bank, N.A., 629 F.3d 364, 368 (3d Cir. 2011).
As stated previously, the Supreme Court, in Henson
v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017),
has recently repealed the “default” test. Debtors
claimed that Santander Bank, which had purchased their
loans already in default and attempted to collect on
them, met the second definition of “debt collector,”
i.e., one who “regularly collects or attempts to collect
. . . debts owed or due . . . another.” Id. at 1721

(quoting § 1692a(6)). They asserted as well that the
Bank met the “principal purpose” definition, but the
Court did not review that claim because it was not
litigated in the District Court. Id. The Supreme Court
began “with a careful examination of the statutory
text,” in particular the definition’s limitation to
debts “owed . . . another.” Id. It reasoned that “by its
plain terms this language seems to focus our attention
on third party collection agents working for a debt

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11
owner—not on a debt owner seeking to collect debts for
itself.” Id. This language does not suggest that
“whether the owner originated the debt or came by it
only through later purchase” determines if it is a debt
collector. Id. “All that matters is whether the target
of the lawsuit regularly seeks to collect debts for its
own account or does so for ‘another.’” Id. Hence the
Bank, which collected debts for its own account, did not
meet the “regularly collects for another” definition.
Id. at 1721–22. The Court also addressed the suggestion
that everyone who attempts to collect debt is either a
“debt collector” or a “creditor” with respect to a
particular debt, but cannot be both. Id. “[S]potting
(without granting) th[at] premise,” it stated that a
company such as the Bank, which collects on debt it
purchased for its own account, “would hardly seem to be
barred from qualifying as a creditor under the statute’s
plain terms.” Id. But excluded from the definition of
“creditor” are those who acquire a debt after default
when the debt is assigned or transferred “solely for the

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-- 39 of 57 --

13
be tantamount to bad faith. Further, there is no question
that this court can hear the related state claims as
well based on Supplemental jurisdiction. Supplemental
jurisdiction is the authority of United States federal
courts to hear additional claims substantially related
to the original claim even though the court would lack
the subject-matter jurisdiction to hear the additional
claims independently. 28 U.S.C. § 1367. As such, there
is no reason to grant summary judgment based on
jurisdictional reasons for either party.
As stated by Appellee, it is axiomatic that the
United States and its agencies and officers are immune
from suit unless they have consented to be sued. FDIC
v. Meyer, 510 U.S. 471, 475
(1994); United States v. Mitchell, 445 U.S. 535, 538
(1980). In re Epps, 110 B.R. 691 (E.D. Pa. 1990)
(sovereign immunity waived under National Housing Act
authorizing HUD to "sue and be sued" in carrying out
certain provisions of the Act). Such "sue and be sued"
statutes waive sovereign immunity only of particular
'HIHQGDQW

-- 40 of 57 --

14
agencies, not the United States generally. See Lomas &
Nettleton Co. v. Pierce, 636 F.2d 971, 972-73 (5th Cir.
1981); Indus. Indem., Inc. v. Landrieu, 615 F.2d 644,
(1940) (garnishment action against Federal agency
permitted only to the extent it had funds outside the
Treasury); Presidential Gardens Assocs. v. United States
ex rel. Sec'y of HUD, 175 F.3d 132, 141 (2d Cir. 1999)
(waiver of HUD's immunity limited to funds under control
of HUD, does not reach general Treasury funds). Finally,
in the case of "sue-and-be-sued" agencies, one can argue
that, although such governmental units may have
independent litigating authority, the Bankruptcy Code,
§ 106, places limits upon the jurisdiction of the
646 (5th Cir. 1980). If the judgment sought by the
Appellant would "expend itself on the public Treasury,"
the suit is in reality against the United States
regardless of whether the complaint names only Federal
agencies or officials. Dugan v. Rank, 372 U.S. 609, 620
(1963) (quoting Land v. Dollar, 330 U.S. 731, 738
(1947)); see also FHA V. Burr, 309 U.S. 242, 250-51
SODLQWLII

-- 41 of 57 --

15
bankruptcy courts over any governmental unit. Cf. Aetna
Cas. & Sur. Co. v. United States, 655 F.2d 1047 (Ct. Cl.
1981) (although HUD might be suable in other courts upon
certain causes of action, Tucker Act places limits upon
Court of Claims' jurisdiction over them).
In this case, by transferring the interest in the
underlying debt for the sole purpose of attempting to
collect on that debt, that was an affirmative action
that effectively waived sovereign immunity. Even though
it is admitted that the SBA transferred the debt, they
were still responsible for the apparent “deficiency” and
the initiation of the transfer. As such, even the SBA
was not the primary party to begin the debt collection
process, it was still their actions that permitted it
to proceed. As such, they can be sued for their actions
that left to the collection action, even if they were
not directly the party doing so. Specifically, the SBA
can be held accountable for their actions under the
FCRA.

-- 42 of 57 --

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21
Respectfully submitted,
Dated: August 17, 2020 ___/s/ Joshua Thomas________
Joshua L. Thomas and Assoc.
Joshua Thomas Esq.
Supreme Court ID No. 312476
225 Wilmington-West Chester
Pike
Suite 200
Chadds Ford, PA 19317
Phone: (215) 806-1733
Email: JoshuaLThomas@gmail.com
>2ULJLQDOVLJQDWXUHEORFNDQGGDWHRPLWWHG@

-- 48 of 57 --

22
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE
STYLE REQUIREMENTS
This brief complies with the type-volume limitation
of Fed. R. App. P. 32(a) (7) (B) because the brief
contains 4612 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of
Fed. R. App. P. 32(a)(5) and the type style
requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced
typeface using Microsoft Word 2010, in 14-point
Courier New.
August 17, 2020 /s/ Joshua Thomas
Joshua Thomas, Esq.

-- 49 of 57 --

23
CERTIFICATE
I, Joshua L. Thomas, Esquire, hereby certify that to
the best of my knowledge, the hard copy brief and the
electronic version submitted in this matter are
identical.
I certify that I have checked these filings and
have been scanned for viruses by virus protection
program, AVG Anti- Virus, and they are free from any
viruses.
/s/ Joshua Thomas
Joshua Thomas, Esq.

-- 50 of 57 --

24
CERTIFICATE OF SERVICE
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
I, Joshua L. Thomas, Esquire, hereby certify that
a true and correct copy of Appellant’s Brief was
served via ECF and/or regular mail upon all parties.
/s/ Joshua Thomas
Joshua Thomas, Esq.

-- 51 of 57 --

APPENDIX C
A redline copy of Appellants’ opposition to Rule 38
damages compared to their District Court brief

-- 52 of 57 --

No. 20-1726
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

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Appellant
On Appeal from the U.S. District Court
for the MIDDLE DISTRICT OF PENNSYLVANIA
Civil Action No. 3:18-CV-00224
APPELLANT’S OPPOSITION TO
DEFENDANTS’ MOTION FOR SANCTIONS
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I. CONCLUSION
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