Unpublished Disposition, 872 F.2d 428 (9th Cir. 1986)

MEMORANDUM^* 

FACTS AND PROCEEDINGS

Gregg Lu Metta ("Lu Metta") is an intermediary between computer manufacturers and customers; he sells and services computer products. United States Robotics, Inc. ("Robotics") is a manufacturer of computer modems, devices that allow long distance transmission of computer signals over telephone lines.

In the course of their dealings together, Robotics and Lu Metta entered into an oral contract whereby Lu Metta was to find computer manufacturers and to interest them in purchasing Robotics' modems. Lu Metta produced advertising brochures using the Robotics trademark and referring to his company as the supplier. An Apple division manager saw a brochure, attempted unsuccessfully to contact Robotics, then contacted Lu Metta. Subsequently, Apple representatives met with Lu Metta and discussed the possibility of Robotics supplying Apple with modems. Soon after, Lu Metta sold Apple a test modem after Robotics refused to supply a free one. Following these contacts between Apple and Lu Metta, Robotics terminated relations with Lu Metta, alleging Lu Metta had breached his agreement with it. Subsequently, Apple purchased $14.5 million worth of modems directly from Robotics.

Lu Metta filed an action on May 16, 1984, alleging, among other theories of recovery, breach of implied contract. The case was tried before a jury which reached a verdict in Lu Metta's favor.¹  Robotics filed motions for a judgment notwithstanding the verdict and a new trial; the district court denied these motions on March 10, 1986. Robotics appealed. This court upheld the judgment of the district court. Lu Metta v. U.S. Robotics, Inc., 824 F.2d 768 (9th Cir. 1987). After the filing of Lu Metta I, and shortly before trial in that case, Apple entered into additional contracts with Robotics. After the Lu Metta II decision, Lu Metta filed suit alleging that Robotics refused to pay him his commission on these new sales. Robotics filed a motion to dismiss Lu Metta's new complaint on the theory of res judicata. After a hearing, the district judge in Lu Metta III dismissed the complaint on the grounds that (1) the jury in Lu Metta I awarded Lu Metta the reasonable value of all services; (2) Lu Metta could have asked the jury by way of special interrogatory to consider future commissions; and (3) Lu Metta could have sought declaratory or post-trial relief under Rule 60. Lu Metta appeals.

DISCUSSION

Standard of Review

A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6) is a ruling on a question of law and as such is reviewed de novo. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984).

Res Judicata

Appellant claims that the judgment below does not preclude him from seeking a judgment in a second trial. However, the record below indicates that res judicata does apply.

Appellant's first amended complaint in Lu Metta I sought, in part, an injunction enjoining Robotics from dealing with the buyers he had found for it, including Apple. The district court dismissed such count of the complaint without leave to amend, thus with prejudice. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 (9th Cir. 1988). Lu Metta could have appealed the dismissal of this claim. As appellee notes, Lu Metta cannot litigate his case in piecemeal fashion. See, e.g., Modave v. Long Island Jewish Medical Center, 501 F.2d 1065, 1073-74 (2d Cir. 1974). Thus, he cannot relitigate this issue in a new trial.

CONCLUSION

Since Lu Metta's claims are barred by res judicata, we affirm the district court. Appellee's request for attorney's fees is denied.

AFFIRMED.