Unpublished Disposition, 884 F.2d 1395 (9th Cir. 1988)

MEMORANDUM^* 

Murrey & Son's Company, Inc. appeals the district court's order granting Sea-Land Services, Inc.'s motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6). We affirm.

Murrey & Son's first contends that the district court improperly failed to consider its motion to remand to state court. Although the district court did not expressly mention the motion, the court impliedly denied it by dismissing the complaint with prejudice. The court's failure to expressly address the motion does not require reversal unless the omission "affect [ed] the substantial rights of the parties." See Fed. R. Civ. P. 61. No substantial rights were affected because the motion to remand was without merit; the case was properly removed to federal court.

28 U.S.C. § 1441(a) provides that a defendant may remove to federal court a civil action "brought in a State court of which the district courts have original jurisdiction." The district court had diversity jurisdiction over this action. The named parties were citizens of different states, and the amount in controversy exceeded $10,000.¹  See 28 U.S.C. § 1332. Murrey & Son's contends that because it named "Doe Co.," "Doe I," and "Doe II" in its complaint, diversity was incomplete, and the district court lacked jurisdiction. The Access to Justice Act of 1988, signed into law on November 19, 1988, amends 28 U.S.C. § 1441 by adding the following sentence: "For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded." Pub. L. 100-702, Sec. 1016(a), 102 Stat. 4642, 4669 (1988). We have held that this provision applies retroactively to cases pending on November 19, 1988. See Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1424-1425 (9th Cir. 1989). The existence of "Doe" defendants in the complaint did not preclude exercise of diversity jurisdiction.

Murrey & Son's also contends that the district court erred in dismissing its action pursuant to Fed. R. Civ. P. 12(b) (6). We review de novo the district court's dismissal for failure to state a claim. United Energy Owners Comm., Inc. v. United States Energy Management Systems, Inc., 837 F.2d 356, 360 (9th Cir. 1988). The district court properly dismissed the action. The action was an attempt to relitigate a matter already resolved in federal court. The claims asserted by Murrey & Son's arose out of the same transaction that was the subject matter of Sea-Land's prior action against Murrey & Son's. See Sea-Land Service, Inc. v. Murrey & Son's Co., 824 F.2d 740 (9th Cir. 1987). The claims were thus compulsory counterclaims in that action. See Fed. R. Civ. P. 13(a). A compulsory counterclaim is barred if not brought. Sams v. Beech Aircraft, 625 F.2d 273, 276 n. 4 (9th Cir. 1980) (citing Baker v. Gold Seal Liquors, 417 U.S. 467, 469 n. 1 (1974)).

AFFIRMED.