Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1014 (9th Cir. 1991)

John L. MABSON, Petitioner-Appellant,v.OLD HICKORY CASUALTY INSURANCE CO., INC., Respondent-Appellee.

No. 90-16092.

United States Court of Appeals, Ninth Circuit.

Submitted May 9, 1991.* Decided May 13, 1991.

Before JAMES R. BROWNING, GOODWIN and POOLE, Circuit Judges.


MEMORANDUM** 

John L. Mabson appeals pro se the district court's dismissal of his action seeking an order directing arbitration of his claim against Old Hickory Insurance Company (Old Hickory). The district court dismissed the action for lack of subject matter jurisdiction and for failure to state a claim based on res judicata. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the dismissal of an action as barred by res judicata, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and we affirm.

A final judgment on the merits in a state court operates as a res judicata bar to preclude relitigation of a claim in a federal court. Allen v. McCurry, 449 U.S. 90, 95 (1980). Here, the federal courts must accord the Arizona state court judgment the same preclusive effect the judgment would receive in state court. See Trujillo v. County of Santa Clara, 775 F.2d 1359, 1363 (9th Cir. 1985).

Under Arizona law, "a judgment 'on the merits' in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action." Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573, 716 P.2d 28, 30 (1986). Furthermore, we have held that where a federal constitutional claim is based on the same asserted wrong as was the subject of a state action, and where the parties are the same, res judicata will bar the federal constitutional claim whether it was asserted in state court or not. Scoggin v. Schrunk, 522 F.2d 436, 437 (9th Cir. 1975), cert. denied, 423 U.S. 1066 (1976). The state court judgment on the merits serves not only to bar every claim that was raised in state court, but also to preclude the assertion of every legal theory or ground for recovery that might have been raised in support of the granting of the desired relief. Id. A default judgment is considered to be a determination on the merits for purposes of res judicata. Howard v. Lewis, 905 F.2d 1318, 1323 (9th Cir. 1990).

Old Hickory filed an action in Maricopa County Superior Court seeking declaratory relief. Mabson failed to appear and default judgment was entered against him. The court determined that Old Hickory was not liable to Mabson for any property damage to his automobile and furthermore, that Mabson was not entitled to arbitrate the matter. Mabson subsequently filed this action in the District Court of Arizona against Old Hickory seeking an order directing arbitration of his claim. This action involves the same parties and the same cause of action brought in state court, which resulted in a judgment on the merits in favor of Old Hickory. Thus, Mabson's action is barred by res judicata. The fact that Mabson seeks to assert constitutional claims in this action does not defeat the res judicata effect of the state court judgment. See Scoggin, 522 F.2d at 437.

Mabson's request for paralegal fees is denied. Old Hickory's request for attorney's fees pursuant to Arizona Revised Statutes Secs. 12-341.01, 12-349, and Rule 11 of the Federal Rules of Civil Procedure is denied.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

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