Unpublished Disposition, 846 F.2d 1382 (9th Cir. 1984)

MEMORANDUM^** 

Billy Frederick Allen, a Texas prisoner, appeals pro se the grant of summary judgment in favor of Los Angeles police officers Harry Didion and Kenneth DeBie in Allen's action under 42 U.S.C. § 1983. Allen seeks declaratory relief and damages for the officer's allegedly unlawful search of his motel room and vehicle, and subsequent deprivation of property. We consider whether the district court erred in concluding Allen's claim was barred on res judicata grounds because of the dismissal of a prior action, against the same officers, on nearly identical grounds, in another federal district court. We conclude the earlier action bars the instant suit and affirm.

We review a district court's grant of summary judgment de novo. Hernandez v. Johnston, 833 F.2d 1316, 1317 (9th Cir. 1987). Under Fed. R. Civ. P. 56(c), summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 1317-18; Fed. R. Civ. P. 56(c).

The doctrine of res judicata provides that a "final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Federated Dep't. Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). Thus, we must consider whether the earlier proceeding involved (1) the same parties, (2) the same claims, and (3) resulted in a final judgment on the merits. See Ellingson v. Burlington Northern, Inc., 653 F.2d 1327, 1330 (9th Cir. 1981).

Allen's complaint in this action, (hereinafter "Allen II "), named Harry Didion, Kenneth DeBie, and the City of Los Angeles as defendants. The municipal defendant was never served with process, but the officers, who defended below, were. Allen's amended complaint filed in the Northern District of Texas on June 11, 1984, Billy Frederick Allen v. Byrd, et al., No. CA-3-84-0086 (hereinafter "Allen I "), also named Officers Didion and DeBie, along with Texas law enforcement officers and agencies. Thus, the requirement that there be an identity of parties between the two actions is satisfied.

Both Allen I and Allen II state claims arising under 42 U.S.C. § 1983 for the allegedly unlawful search of Allen's motel room and vehicle, and the subsequent deprivation of his property without due process. Two claims are the same for res judicata purposes if they arise from the same transactions or events. Brown v. Federated Dep't. Stores, Inc., 653 F.2d 1266, 1267 (9th Cir. 1981). Although Count Two of Allen's more recent complaint in Allen II states a claim against the City of Los Angeles for the hiring of Didion and DeBie, an allegedly "reckless and/or grossly negligent" act, a claim not asserted in Allen I, this does not advance his case. The doctrine of res judicata, in addition to barring further litigation of claims and causes of action actually brought in the prior action, also extends to bar subsequent litigation of claims that could have been raised in that action. Ellingson, 653 F.2d at 1331; Moitie, 452 U.S. at 398. Thus, for res judicata purposes, the claims are the same.

Res judicata also requires a prior judgment on the merits. The record in Allen I reflects that the Texas district court dismissed Allen's complaint, against the Texas and California defendants, "for failure to state a claim for which relief can be granted under 42 U.S.C. § 1983." The court in Allen I concluded that adequate state remedies for the alleged intentional torts and property deprivation existed, and therefore dismissed the case "without prejudice to the right of plaintiff to sue in state court."

Whether or not this court agrees with that conclusion, and we express no opinion on the matter, the res judicata consequence of the judgment in Allen I is clear. See Moitie, 452 U.S. at 398 (judgment voidable because based on an erroneous view of the law is not open to collateral attack by bringing another action on same claim, but can be corrected only by direct review). A dismissal for failure to state a claim is a "judgment on the merits." Moitie, 452 U.S. at 399 n. 3. The qualification to the dismissal, "without prejudice to the right of plaintiff to sue in state court," does not deprive the rest of the judgment of its res judicata effect. In re Duncan, 713 F.2d 538, 544 (9th Cir. 1983). On December 20, 1984 the Fifth Circuit Court of Appeals filed a certified copy of its "Entry of Dismissal" of the appeal in Allen I. The judgment in Allen I, as a final adjudication on the merits, thus bars the present action in Allen II.

Allen raises a final contention. He argues the judgment in Allen I is void for lack of personal jurisdiction over defendants Didion and DeBie. Allen confuses the subject matter jurisdiction of the federal district court with its personal jurisdiction over particular defendants. The district court's subject matter jurisdiction in Allen I stemmed not, in this case, from the diversity of the parties, but rather, from the fact that federal questions, arising under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the Constitution, were raised. See 28 U.S.C. §§ 1331, 1332, 1343 (1982). The subject matter jurisdiction of a federal court may never be waived and can be raised at any time by the parties or sua sponte by the court. Dyer v. Grief Bros., Inc., 766 F.2d 398, 401 (9th Cir. 1985). Defects in personal jurisdiction, however, may be waived by a defendant's general appearance or responsive pleading that fails to dispute personal jurisdiction. Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). Here, officers Didion and DeBie were served by mail with summonses and copies of the complaint in Allen I. Thus there was "substantial compliance" with Federal Rule of Civil Procedure 4. Fed. R. Civ. P. 4(c), (d), (e). "Although defendants disputed the exercise of personal jurisdiction by the court in Allen I, the court nonetheless proceeded to rule on the merits and Didion and DeBie did not challenge that ruling on appeal. Accordingly, any alleged defect in personal jurisdiction was waived. Plaintiff Allen cannot now raise the lack of personal jurisdiction over defendants in a collateral attack. See Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 525-26, 51 S. Ct. 517 (1931); Americana Fabrics, Inc. v. L & L Textiles, Inc., 754 F.2d 1524, 1531 (9th Circ.1985) (noting that to the extent that the objection of lack of personal jurisdiction had been raised in the prior action, it was rejected, and that decision was binding; to the extent that the issue had not been raised, it was waived). The judgment in Allen I as applied to Didion and DeBie is valid and binding in its res judicata effect upon Allen II.

AFFIRMED.