that the plaintiff was in privity with the class plaintiffs in a previous case when “the plaintiff, although not named, received notice of the settlement and did not opt out, thereby binding her as a member of the class”); Rosado-Acha, 2016 WL 3636672, at *16 (finding that the plaintiff was in privity with the class plaintiffs in the previous litigation because the plaintiff “was a member of the [previous] class and the [c]ourt identifie[d] no ground on which . . . [the] [p]laintiff's interests were not aligned with those of the earlier [c]lass”); see also Vargas v. Cap. One Fin. Advisors, No. 12-CV-5728, 2013 WL 4407094, at *3 (S.D.N.Y. Aug. 15, 2013) (finding privity in the federal res judicata context when “[t]here is no dispute that [p]laintiff is within the definition of the [s]ettlement [c]lass as certified in the [previous] action and did not opt out of the settlement”), aff'd, 559 Fed.Appx. 22 (2d Cir. 2014).
Nationstar has submitted no evidence that Plaintiff's name and address were included on the mailing lists of absent class members; nor has it supplied facts proving that the notice intended for Plaintiff was mailed to his residence. See Vargas v. Capital One Fin. Advisors, 559 Fed. App'x 22, 27 (2d Cir. 2014) (notice is adequate where evidence demonstrates that it was mailed to the correct address and not returned to the sender as undeliverable). The prospect of delving into this disputed factual matter only further persuades the Court that the issue of the preclusive effect of the Triplett settlement is not suitable for resolution at the motion to dismiss stage.
Payment Card, 330 F.R.D. at 58-59 (quotation marks omitted); see id. (collecting cases). Courts are concerned both procedurally and substantively with whether the notice plan will provide “‘class members the best notice that is practicable under the circumstances.'” Vargas v. Capital One Financial Advisors, 559 Fed.Appx. 22, 26 (2d Cir. 2014) (quoting Fed.R.Civ.P. 23(c)(2)(B)); see also id. (stating that notice to class members must be “sent by an adequate physical delivery method” and “fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings”)
"Final judgments . . . remain vulnerable to collateral attack for failure to satisfy the adequate representation requirement." Vargas v. Capital One Fin. Advisors, No. 12-CV-5728, 2013 WL 4407094, at *4 (S.D.N.Y. Aug. 15, 2013), aff'd, 559 F. App'x 22 (2d Cir. 2014) (quotations omitted). Mr. Caldwell has not alleged, however, that Ms. Sutton inadequately represented him as class counsel.
supplied facts proving that the notice intended for Plaintiff was mailed to his residence. See Vargas v. Capital One Fin. Advisors, 559 Fed.Appx. 22, 27 (2d Cir. 2014)(notice is adequate where evidence demonstrates that it was mailed to the correct address and not returned to the sender as undeliverable). The prospect of delving into this disputed factual matter only further persuades the Court that the issue of the preclusive effect of the Triplett [class action] settlement is not suitable for resolution at the motion to dismiss stage.
In addition, while it is true that, given Perry's pro se status, the Court must construe the Amended Complaints "liberally to raise the strongest argument [they] suggest[]," Perry nevertheless is not relieved from his obligation to state a plausible entitlement to relief. Nielsen, 746 F.3d at 63. Finally, as relevant here, this Court can grant a motion dismiss for failure to state a claim on the affirmative defense of res judicata based on judicial notice of the prior orders and judgments. See, e.g., Vargas v. Capital One Fin. Advisors, No. 13-cv-3262, 2014 WL 960935, at *1 (2d Cir. Mar. 13, 2014) (summary order); Lipin v. Nat'l Union Fire Ins. Co, 202 F. Supp. 2d 126, 135 (S.D.N.Y. 2002). A. Copyright Infringement