Unpublished Disposition, 914 F.2d 1496 (9th Cir. 1986)

MEMORANDUM^** 

Alexander W. Malick appeals pro se the district court's order dismissing his action as barred on res judicata grounds. Malick's action sought to set aside the court's earlier grant of summary judgment in a diversity action for breach of contract and fraud against Sandia Corp., his former employer. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

* Standard of Review

The district court's dismissal of an action on res judicata grounds is reviewed de novo. See Lea v. Republic Airlines, Inc., 903 F.2d 624, 634 (9th Cir. 1990). A party's entitlement to a jury trial in a federal court is a question of law reviewed de novo. See Standard Oil Co. of Calif. v. Arizona, 738 F.2d 1021, 1022-23 (9th Cir. 1984), cert. denied, 409 U.S. 1132 (1985).

II

Merits

Malick contends that the district court erred in finding that res judicata barred his action because exceptional circumstances created an "extrinsic mistake" in this court's decision affirming the district court's grant of summary judgment.¹ 

"Federal Rule of Civil Procedure 60(b) provides that the rule 'does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding.' Fed. R. Civ. P. 60(b). Thus, 'a federal court, in an independent action, has jurisdiction to modify a final judgment in a former proceeding on the ground of mistake....' " Narramore v. United States, 852 F.2d 485, 493 (9th Cir. 1988) (quoting West Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702, 706 (5th Cir. 1954). Under the doctrine of res judicata, however, a final judgment bars further litigation by the same parties on the same cause of action. See Montana v. United States, 440 U.S. 147, 153 (1979); American Triticale, Inc. v. Nytco Serv., Inc., 664 F.2d 1136, 1146-47 (9th Cir. 1982) (" [a] judgment in a previous suit is conclusive in a second suit between the same parties or their privies on the same cause of action").

Here, Malick's action alleges that this court committed an "extrinsic mistake" in affirming the district court's grant of summary judgment based on the Employee Retirement Income Security Act (ERISA), and not on the state law claims in his original complaint. This contention is without merit. In our amended memorandum affirming the district court's grant of summary judgment, we explicitly found that all of Malick's "claims were properly dismissed [and that] Malick was not entitled to relief under either federal or state law." Malick v. Sandia Corp., No. 85-2299, amended unpublished memorandum at 3 (9th Cir. Nov. 13, 1986). Consequently, the district court's finding that our decision had reviewed and rejected Malick's state law claims was correct. Thus, the district court properly held that, absent any other grounds or evidence, it was barred from re-examining those same contentions.

On appeal, Malick contends that the district court's grant of summary judgment pursuant to Federal Rule of Civil Procedure 56 is unconstitutional because it deprives him of his seventh amendment right to a jury trial. See Fed. R. Civ. P. 56. A grant of summary judgment does not violate the seventh amendment right to a jury trial. See Sengupta v. Morrison-Knudsen Co., Inc., 804 F.2d 1072, 1077-78 n. 3 (9th Cir. 1986); see also Plaisance v. Phelps, 845 F.2d 107, 108 (5th Cir. 1988) (" [t]he function of a jury is to try the material facts; where no such facts are in dispute, there is no occasion for jury trial. Thus the right to trial by jury does not prevent a court from granting summary judgment"). Therefore, this claim is wholly without merit.

III

Appellate Sanctions

Sandia Corp. requests sanctions against Malick for bringing this appeal. This court has discretion to impose sanctions against litigants, even pro se, for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1912; Wilcox v. Commissioner, 848 F.2d 1007, 1008-09 (9th Cir. 1988) ($1,500 sanction imposed on pro se litigant for bringing a frivolous appeal). An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit. Id. at 1009 (citation omitted).

Here, the district court warned Malick that his repetitive action were sanctionable. Malick, however, failed to heed the district court's warning. Malick's claims are wholly without merit; accordingly, we impose $500 damages as a sanction.

AFFIRMED.