Unpublished Disposition, 909 F.2d 1488 (9th Cir. 1988)

MEMORANDUM^** 

James and Norma Bringle appeal the dismissal of their Section 1983 action challenging the constitutionality of Washington's dependency procedures. We have jurisdiction under 28 U.S.C. § 1291 (1982). We affirm.

The district court concluded that the Bringle's claim is barred under Washington's res judicata principles. We review this question of law de novo. Guild Wineries and Distilleries v. Whitehall Co., 853 F.2d 755, 758 (9th Cir. 1988).

Prior to the Bringles' filing of this suit, the Washington State superior court held that the Bringles, who were represented by an attorney there, did not have a right to intervene in the dependency proceedings of their grandchildren. In re the Dependency of Jennifer Bollinger b.d. 08-24-87, No. 131567 (Wash.Super.Ct. Jan. 23, 1987); In re the Dependency of Patrick Bollinger b.d. 06-03-83, No. 131566 (Wash.Super.Ct. Jan. 23, 1987). The state court of appeals affirmed. In re the Welfare of Patrick James Bollinger and Jennifer Lynn Bollinger, Nos. 10700-7-II and 10701-5-II (Wash.Ct.App. May 18, 1988). The Washington Supreme Court denied review and the United States Supreme Court denied certiorari. These are final judgments on the merits of prior cases.

There is identity between the Bringles' claims in those cases and their claim in this case: Substantially the same evidence as was involved in those cases is involved in this case. Those cases involved the same alleged infringement of the Bringles' rights as this case, and those cases arose out of the same transactional nucleus of facts as this case. See Rains v. State of Washington, 674 P.2d 165, 168 (Wash.1983); Constantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.), cert. denied, 459 U.S. 1087 (1982). We conclude that the rights and interests established in those cases would be impaired by this action.

There also exists identity of subject matter between this and the Bringles' prior cases. See Rains, 674 P.2d at 168. The Bringles were able to raise and did raise their current constitutional claim in their prior cases. Although the Washington courts did not explicitly address the claim, the Washington courts necessarily rejected it in denying the Bringles relief. See Marino Property Co. v. Port Commissioners of the Port of Seattle, 644 P.2d 1181, 1185 (Wash.1982) (a prior decision is res judicata as to all claims necessarily resolved in reaching that decision, whether or not the decision explicitly addressed those claims); Migra v. Warren City School Dist. Bd. of Education, 465 U.S. 75 (1984) (section 1983 claims are to be evaluated under general res judicata principles).

Finally, although the Bringles, having been denied the right to intervene in the prior cases, were not formally parties to those cases, they were parties to the motions to intervene. It is the state court's denial of these motions that serves as the basis of the Bringles' due process challenge to Washington's dependency proceedings and it is in these motions that the Bringles could have and did argue that the dependency procedures, if interpreted to deny them the right to intervene, violated due process. Thus, the Bringles were parties to the prior cases for purposes of res judicata analysis. See United States v. ITT Rayonier, Inc., 627 F.2d 996, 1002 n. 7, 1003 (9th Cir. 1980) (applying federal law but noting that Washington law would dictate the same conclusion) (courts are not restricted by rigid definitions of parties; one not a party of record may be bound if he had a sufficient interest in and participated in the prior action); Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir.) (identity of parties is "a factual determination of substance, not mere form" to be decided based on whether the party received notice and an opportunity to be heard in the prior proceeding), cert. denied, 434 U.S. 903 (1977).

We hold that res judicata principles bar the Bringles' current suit.

Appellants' motion to supplement the appellate record with a transcript of the October 9, 1986 Washington court proceeding is denied. This transcript was not filed with the district court or admitted into evidence by that court and, thus, may not be part of the record on appeal. Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1077 (9th Cir. 1988) (citing Fed. R. App. P. 10(a)).

The judgment of the district court is AFFIRMED.