NOT PRECEDENTIAL


              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                         __________

                            No. 12-1419
                            __________

                      FRANK DOMBROSKI,

                                      Appellant

                                 v.

                J.P. MORGAN CHASE BANK, N.A.


                            __________

           On Appeal from the United States District Court
                    for the District of New Jersey
                (District Court No. 2:11-CV-03771)
            District Judge: Honorable Stanley R. Chesler
                            ___________

            Submitted Under Third Circuit L.A.R. 34.1(a)
                       December 17, 2012
                          ___________

Before: McKEE, Chief Judge, SLOVITER and VANASKIE, Circuit Judges

                      (Filed: February 4, 2013)
                            ___________

                            OPINION
                           ___________
McKEE, Chief Judge

       Frank Dombroski appeals the district court’s January 24, 2012 order denying leave

to amend his Amended Complaint alleging a breach of contract. The court initially

dismissed Dombroski’s Amended Complaint, without prejudice, and ordered that he seek

leave to further amend. The court’s January 24th order denied leave to amend based on

the court’s conclusion that a second amendment would be futile. For the reasons

discussed below, we will affirm. 1

                                            I.

       Since we write primarily for the parties who are familiar with this case, we only

briefly recite essential facts. 2

       Dombroski claims that the contractual disclaimer in Chase’s Code of Conduct is

not sufficiently prominent and clear to preclude formation of a contract between him and

Chase. His argument is essentially a claim that the disputed language of the disclaimer

could have been clearer and more prominent. We do not doubt that is true. However, it

is apparent that the language was sufficiently prominent and clear to negate Dombroski’s

attempt to claim that the Code of Conduct was a contract that Chase breached. In the

opinion filed January, 24, 2012, the district court adequately explained why Chase was


1
  Dombroski’s appeal of the district court’s denial of his motion for leave to further
amend encompasses the underlying ruling on the merits of his contract claim. See, e.g.,
Lorenz v. CSX Corp., 

, 1414 (3d Cir. 1993) (reviewing the merits of
appellant’s underlying claim on an appeal from a district court’s denial of leave to amend
complaint based on, among other things, futility).
2
 The district court had original jurisdiction on grounds of diversity under 28 U.S.C. §
1332(a), and we have jurisdiction pursuant to 28 U.S.C. § 1291.
                                             2
entitled to judgment as a matter of law on Dombroski’s breach of contract claim.

Accordingly, we will affirm the district court’s rejection of that claim substantially for the

reasons set forth in its opinion.

       We do, however, believe the district court’s analysis of Dombroski’s judicial

estoppel claim is flawed. The court relied upon our decision in G-I Holdings, Inc. v.

Reliance Ins. Co., 

, 262 (3d Cir. 2009), in concluding that judicial estoppel

does not apply unless the party to be estopped prevailed in the prior litigation in which it

took a position contrary to the position it was currently taking before the court. See

Dombroski v. J.P. Morgan Chase Bank, N.A., No. 11-3771, 

, at *2-3

(D.N.J. Jan. 24, 2012). That misinterprets our decision in G-I Holdings.

       In denying Dombroski’s judicial estoppel claim, the district court relied on the fact

that the district court in G-I Holdings “never accepted Hartford’s prior [contradictory]

. However, the district court here failed to appreciate that that

was not the basis of the holding. Rather, in G-I Holdings, we noted that “Hartford

withdrew [the contradictory] position and asserted its new one . . . before the Court ruled

on its motion to dismiss.” 

court here failed to appreciate that

the analysis in G-I Holdings specifically noted that: “in Krystal Cadillac-Oldsmobile

GMC Truck, Inc. v. General Motors Corp., 

(3d Cir. 2003), a bankruptcy

case, we applied judicial estoppel even though no court had ever relied on the debtor’s

position.” G-I 

.




                                              3
       Accordingly, the district court erred in holding that judicial estoppel does not

apply based on Chase’s unsuccessful assertion of a contradictory position in Pinsky v. JP

Morgan Chase & Co., 

, 563 (S.D.N.Y. 2008).3

       Moreover, in G-I Holdings, we also explained that, we “apply [judicial estoppel]

to neutralize threats to judicial integrity however they may arise.” 

is not threatened by refusing to create a contract between Dombroski and Chase.

In fact, the opposite is true. We cannot ignore the plain disclaimer in the Code of

Conduct and fashion a contract that was not intended. “[E]stoppel will not operate to

create a contract that never existed [and] the court will not write a new contract for the

parties by estoppel.” Ayer v. Bd. of Ed. of Cent. Sch. Dist. No. 1, 

, 468-

69 (Sup. Ct. 1972) (internal citations omitted); see also Fin. Tech. Int’l, Inc. v. Smith, 

, 409 n.8 (S.D.N.Y. 2002) (“estoppel may not be used to create rights

where they do not already exist, but simply to prevent a party from enforcing rights

which would result in a fraud or injustice.”) (internal citations omitted).4

       Thus, despite the district court’s misinterpretation of G-I Holdings, and even

though Chase does appear to be taking a position here that is inconsistent with the prior


3
  In Pinsky, Chase asserted that its “Code of Conduct, although not an employment
contract, sets forth terms and conditions of employment with J.P. Morgan.” Defendant’s
Answer to First Amended Complaint and Counterclaims at 13, Pinsky, 

(No. 07-CV-3328). Chase’s breach of contract claim referenced no agreement
except for the Code of Conduct. See 

argued that its employee’s
violation of the Code of Conduct was a breach of contract, Chase necessarily contended
that the Code of Conduct constitutes a contract.
4
  The parties agree that New York law controls the interpretation of Chase’s Code of
Conduct, and the district court applied New York law. See Brief of Appellant at 20-29;
Brief of Appellee at 12; Dombroski, N.A., 

, at *2.
                                              4
position it took in the Pinsky litigation in New York, it is clear that the district court was

correct in refusing to create a contractual relationship between Dombroski and Chase, in

dismissing Dombroski’s complaint and in concluding that Dombroski’s attempt to amend

the complaint would have been futile. Accordingly, the district court did not err in

dismissing Dombroski’s complaint for failure to state a claim.5

                                              II.

       For the reasons set forth above, we will affirm the district Court’s dismissal of the

Amended Complaint and its refusal to allow leave to further amend.




5
 We exercise plenary review over the dismissal of a complaint for failure to state a claim.
See Toll Bros., Inc., 

, 137 (3d Cir. 2009); Winer Family Trust v. Queen, 

, 325 (3d Cir. 2007). Where, as here, denial of leave to amend is based on
“futility,” it essentially means that a “complaint, as amended, would fail to state a claim”
for relief. Burtch v. Milberg Factors, Inc., 

, 231 (3d Cir. 2011). Since it is
clear on this record that the Code of Conduct was not an enforceable contract, the district
court correctly concluded that any amendment to the Amended Complaint would have
been futile.
                                               5