Unpublished Disposition, 844 F.2d 792 (9th Cir. 1984)

MEMORANDUM^** 

Peter Thier Kay, pro se, appeals from the district court's decision to grant the City of Berkeley's motion to dismiss. Kay is the owner of a vessel which is the subject of this action and the related in rem action, City of Berkeley v. La Negra, Gitana (C 83-6066-JPV). The vessel was berthed at a marina owned by the city; when Kay became delinquent in his rent for the berth, the city seized the vessel and filed the related in rem action for berthing fees.

In this appeal, Kay claims that the district court abused its discretion when it decided the merits of the in rem case prior to deciding the merits of this case. He contends that because this case was filed prior to the in rem case, the district court was under an obligation to decide it first.

On April 5, 1983, Kay filed the instant action, alleging, inter alia, that the city's seizure of his boat was illegal. After cross-motions for summary judgment, the only issues left open were whether the taking was legal and whether the degree of notice was adequate.

On December 19, 1983, the city filed its in rem action in federal district court. On May 11, 1984, the district court granted the city's motion for summary judgment and for sale of the vessel. The city then filed a motion to dismiss the instant case. The district court granted the city's motion to dismiss holding that the decision granting summary judgment in the in rem case was res judicata as to this case. The district court stated that in the earlier summary judgment order it had implicitly found that the taking of the vessel was legal.¹ 

We reject Kay's claim that the district court abused its discretion in reaching the merits in the in rem case before reaching the merits in this case. The order in which cases are heard and decided is within the district court's discretion. Kay cites no source, nor do we know of any, for the claim that his rights were violated because a common issue was decided in the second federal action rather than in the first one filed. Moreover, Kay does not contend that the legality of the taking was not fully and fairly litigated in the in rem action or that he did not have the opportunity to participate fully in that litigation.

In the in rem case, the district court considered whether the taking of the vessel was legal, as a necessary part of its conclusion that the City of Berkeley had the right to sell Kay's boat. Because the issue was fully and fairly litigated with Kay's participation and was determined as part of a valid and final judgment, Kay is estopped from raising the issue in the instant case. See Montana v. U.S., 440 U.S. 147, 153 (1979). We conclude that Kay has no cause for relief.

AFFIRMED.