Unpublished Disposition, 875 F.2d 319 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 319 (9th Cir. 1988)

Samir I. TAHA, Plaintiff-Appellant,v.PORTLAND STATE UNIVERSITY; Vergil Miller, Defendants-Appellees.

Nos. 87-3971, 88-3613.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 1989.Decided May 10, 1989.

Before TANG, SKOPIL and KOZINSKI, Circuit Judges.


Samir Taha appeals pro se the dismissal of his civil rights complaint on res judicata grounds. Taha v. Miller, No. CV-87-0811-DA (D. Or. Aug. 12, 1988) (order granting defendant's motion to dismiss).1  He also challenges the district court's imposition of sanctions after his voluntary dismissal of a related case, Taha v. Portland State Univ., No. CV-86-1365-JU (D. Or. May 6, 1987) (order awarding sanctions of $350 against Taha).

A. Taha raises numerous challenges to the dismissal of his complaint in Taha v. Miller, No. CV-87-0811-DA (D. Or. July 23, 1987). He first contends that he was entitled to a default judgment because appellees Portland State University and Vergil Miller, dean of the business school at the university, failed to file their answer to the complaint within the twenty-three days allowed by Federal Rules of Civil Procedure 12(a) and (6) (e). This contention is meritless. The record shows that the appellees made a timely motion for an extension of the period to respond. The magistrate's grant of this motion was within the broad scope of his discretion. Fed. R. Civ. P. 6(b) (1).2  The appellees filed their answer within the time allowed.

Second, Taha argues that the district court's order referring his case to a magistrate without his consent was improper and violated his constitutional rights. This claim is also meritless. A magistrate may decide nondispositive pre-trial matters, such as a request for an extension of time, without the consent of the parties. 28 U.S.C. § 636(b) (1) (A) (1982); Fed. R. Civ. P. 72(a). The magistrate may also make findings and recommendations that dispose of a claim or defense; however, if a party objects to the recommendation within ten days, the district judge must make a de novo determination. Fed. R. Civ. P. 72(b). As Taha withdrew his objections, the district court properly adopted the magistrate's recommendation to dismiss the complaint.3 

Taha next argues that it was procedurally improper to consider the res judicata defense raised in appellees' motion to dismiss.4  As a general rule, affirmative defenses must be raised in an answer pursuant to Rule 8(c), not in a motion to dismiss under Rule 12(b) (6). Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). However, we have permitted parties to raise res judicata in a motion to dismiss when there is no issue of fact in dispute. Id. Here the court's own records contained all the information needed to determine whether res judicata barred Taha's claims; the court could take judicial notice of Taha's prior complaints and the orders dismissing them. Fed.R.Evid. 201(b) (2) & (f); see Commodity Futures Trading Comm'n v. Co Petro Marketing Group, Inc., 680 F.2d 573, 584 (9th Cir. 1982). Plaintiff has not disputed the factual accuracy of those records. Therefore, the district court did not err in considering appellees' res judicata defense.

Taha also contends that his claims are not barred by res judicata because they had not been previously resolved. We disagree. The district court dismissed Taha's first complaint, Taha v. Portland State Univ., No. CV-86-452-FR (D. Or. June 20, 1986), as barred by the statute of limitations. The record shows that Taha based his three succeeding complaints, as well as this complaint (the fourth), on the same set of transactions or events: an alleged conspiracy to interfere with Taha's career by giving him unfair grades. See Taha v. Portland State Univ., No. CV-86-452-FR (D. Or. April 17, 1986) (complaint); Taha v. Portland State Univ., No. CV-86-805-LE (D. Or. June 25, 1986) (complaint and request for injunctive relief); Taha v. Portland State Univ., No. CV-86-1365-JU (D. Or. Nov. 3, 1986) (complaint); Taha v. Miller, No. CV-87-0811-DA (D. Or. Jul. 23, 1987) (complaint). Even though Taha introduced new legal theories in each of his four suits, the doctrine of res judicata bars "all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties ... on the same cause of action." Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir.) (quoting Ross v. IBEW, 634 F.2d 453, 457 (9th Cir. 1980)) (emphasis omitted), cert. denied, 459 U.S. 1087 (1982); see also Sidney v. Zah, 718 F.2d 1453, 1458 (9th Cir. 1983) (res judicata "bars litigation of all matters which could have been raised in support of a cause of action previously litigated"). Nor does Taha's allegation of a new act of conspiracy (the March 13, 1987, denial of his application to Portland State University) in this complaint defeat the res judicata bar. See Costantini, 681 F.2d at 1201 ("appellant does not avoid the bar of res judicata merely because he now alleges conduct by [defendant] not alleged in his prior suit"). As Taha's three prior complaints were based on the identical cause of action, the district court correctly dismissed this complaint on res judicata grounds.

Taha's final contention, that the district court wrongly denied him a jury trial because of his Arab ancestry, is unsupported by any evidence and totally without merit.

B. We next turn to Taha's appeal of the sanctions imposed on him in Taha v. Portland State University, No. CV-86-1365-JU (D. Or. May 6, 1987). Taha contends that because he voluntarily dismissed this case pursuant to Federal Rule of Civil Procedure 41(a) (1) (i), the district court had no authority to impose sanctions. However, voluntary dismissal of a complaint does not deprive the district court of the power to impose Rule 11 sanctions. Greenberg v. Sala, 822 F.2d 882, 885 (9th Cir. 1987); Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1077 (7th Cir. 1987), cert. dismissed, 108 S. Ct. 1101 (1988). A violation of Rule 11 is complete when the complaint is filed. Greenberg, 822 F.2d at 885. In this case, the imposition of Rule 11 sanctions was eminently sensible: Taha's complaint is not well grounded in fact nor warranted by existing law; nor does he make a good faith argument for the extension, modification or reversal of existing law. The district court imposed sanctions only after dismissing two prior suits in which Taha alleged the same facts.

Because Taha's appeal is frivolous, we grant appellees' request for attorney's fees pursuant to Federal Rule of Appellate Procedure 38. Within 14 days, appellees shall file a detailed statement, verified by counsel's affidavit, setting forth attorney's fees reasonably incurred in defending these appeals. Taha may file objections within 14 days after appellees' statement has been filed.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The district court vacated this order in response to Taha's appeal of a prior interlocutory order. After we dismissed Taha's appeal as premature, the district court reinstated its final judgment on August 12, 1988. We then reinstated Taha's appeal, which is now properly before us


Taha argues that appellees' motion was improper because it was not accompanied by a supporting affidavit, as local district court rules require. However, Rule 6(b) (1) by its terms permits the court to enlarge a time period without a motion or affidavit


Taha now claims he never withdrew his objections to the magistrate's recommendation. Taha v. Miller, No. 88-3613 (9th Cir. Sept. 30, 1988) (motion to modify district court records). Even were this true, it would be irrelevant, as we have affirmed the district court's dismissal of Taha's claims based on our independent review of the record. See pp. 4-5 infra. We therefore deny Taha's motion to modify the record


He also argues that the court should not have considered appellees' statute of limitations defense. However, the magistrate relied solely on res judicata in recommending dismissal of Taha's complaint. Taha v. Portland State Univ., No. CV-86-1365-JU (D. Or. Jan. 26, 1987) (magistrate's findings and recommendation). Therefore, this argument is also irrelevant