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DeNardo v. Barrans (11/29/2002) sp-5647
DeNardo v. Barrans (11/29/2002) sp-5647
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL DENARDO, )
) Supreme Court No. S-10292
Appellant, )
) Superior Court No.
v. ) 3AN-99-7673 CI
)
DIANE BARRANS, TERESA )
WILLIAMS, MARK BEGICH, )
MILTON BYRD, ALASKA ) O P I N I O N
STUDENT LOAN CORP., )
ALASKA COMMISSION ON ) [No. 5647 - November 29, 2002]
POSTSECONDARY EDUCATION, )
FRANK LOVE, JAN FERRELL, )
BURTON RESEARCH, SHARON )
BURTON, and KARLA BURTON, )
)
Appellees. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Stephanie
E. Joannides, Judge.
Appearances: Daniel DeNardo, pro se,
Anchorage. Kevin M. Saxby, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellees Barrans, Williams, Begich, Byrd,
Alaska Student Loan Corp., Alaska Commission
on Postsecondary Education, Love, and
Ferrell.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Daniel DeNardo filed a superior court action for
damages arising out of his allegedly wrongful termination from
state employment. The superior court dismissed his case, ruling
that it was barred under the doctrine of res judicata by a prior
judgment on a nearly identical federal claim, which the federal
court had dismissed with prejudice under Federal Civil Rule 41(b)
as a result of DeNardos willful refusal to comply with a
calendaring order. The primary question on appeal is whether
claim-preclusive effect attaches to the federal dismissal.
Because we conclude that federal law requires us to give claim-
preclusive effect to a punitive dismissal entered on the merits
by a federal court under Rule 41(b), we affirm the superior
courts judgment.
II. FACTS AND PROCEEDINGS
After being fired as an auditor for the Alaska
Commission on Postsecondary Education, Daniel DeNardo filed an
action for damages in the United States District Court for the
District of Alaska against nine state employees, claiming that
various actions they had taken against him in the course and
scope of their employment resulted in his wrongful termination
and deprived him of his constitutional rights. The district
court entered a summary judgment order dismissing with prejudice
DeNardos claims against all defendants except Diane Barrans, his
supervisor.1 Several days before trial on the claims against
Barrans, DeNardo asked for a continuance for medical reasons.
When the court denied his request and directed him to proceed
with trial on the date scheduled, DeNardo stated that he did not
intend to appear as directed. In response, the district court
dismissed DeNardos case for failure to abide by the orders of the
court, specifying that the dismissal would be with prejudice.2
DeNardo then filed a nearly identical complaint in the
Alaska superior court, naming as additional defendants two state
agencies, the Alaska Commission on Postsecondary Education and
the Alaska Student Loan Corporation.3 The defendants moved for
summary judgment, arguing that DeNardos claims were barred by res
judicata. Superior Court Judge Stephanie E. Joannides granted
the motion, ruling that DeNardos complaint raised claims that the
federal court had already resolved. DeNardo appeals.
III. DISCUSSION
In challenging the superior courts summary judgment
order, DeNardo emphasizes that the doctrine of res judicata can
apply only when a previous judgment has resolved the same claim
on the merits.4 He argues that the federal district courts
judgment dismissing his prior complaint does not qualify as a
judgment on the merits because the dismissal was entered under
Federal Civil Rule 41(b).5 Although this rule expressly
specifies that a dismissal under its provisions operates as an
adjudication upon the merits unless the court specifically states
otherwise in its dismissal order, DeNardo nonetheless cites the
United States Supreme Courts recent decision in Semtek
International, Inc. v. Lockheed Martin Corp.6 as holding that
Rule 41(b) dismissals do not qualify as judgments on the merits
under the doctrine of res judicata.
But DeNardos argument is unpersuasive. Preliminarily,
we note that DeNardos federal claims against all the defendants
other than Barrans were dismissed with prejudice by summary
judgment for failure to establish a prima facie case. This
dismissal was unrelated to the subsequent Rule 41(b) dismissal of
DeNardos claims against Barrans; and because an order dismissing
a claim for failure to establish a prima facie case necessarily
passes on the substance of that claim, the federal courts order
dismissing DeNardos case against all defendants other than
Barrans qualified as a judgment on the merits triggering res
judicatas preclusive effect.7 The federal courts summary
judgment order thus barred DeNardo from relitigating his claims
against all individual defendants other than Barrans, regardless
of whether the subsequent Rule 41(b) dismissal had claim-
preclusive effect.
As to the federal claims against Barrans, DeNardos
argument based on Semtek is unpersuasive because it misconstrues
the decision and overstates Semteks significance in determining a
punitive dismissals preclusive effect. Although DeNardo insists
that Semtek stands for the proposition that dismissals pursuant
to [FRCP 41(b)] are not on the merits and have never had res
judicata effect, its holding is considerably narrower.
In construing Rule 41(b)s default provision, which
specifies that a dismissal under the rules terms operates as an
adjudication upon the merits unless the order of dismissal
specifies otherwise, Semtek began by observing that [t]he
original connotation of an on the merits adjudication the
connotation traditionally used to determine a judgments
preclusive effect is one that actually pass[es] directly on the
substance of [a particular] claim before the court.8 But Semtek
held that the rules use of the phrase has a narrower meaning:
[T]he effect of the adjudication upon the merits default
provision of Rule 41(b) . . . is simply that, unlike a dismissal
without prejudice, the dismissal in the present case barred
refiling of the same claim in the [same court].9
Having adopted this interpretation, however, Semtek did
not go on to conclude as DeNardo insists it did that Rule 41(b)
dismissals can never have preclusive effect as judgments on the
merits in the traditional sense. Instead, Semtek recognized
that Rule 41(b) simply does not address the issue. Noting that a
judgment upon the merits under Rule 41(b) is undoubtedly a
necessary condition, but it is not a sufficient one, for claim-
preclusive effect in other courts,10 the Court in Semtek found it
necessary to search elsewhere to determine the issue: Having
concluded that the claim-preclusive effect . . . [of the federal
judgment at issue] is dictated neither by Dupasseur v. Rochereau,
as petitioner contends, nor by Rule 41(b), as respondent
contends, we turn to consideration of what determines the issue.11
After considering this issue, Semtek concluded that
federal common law determines a federal dismissals preclusive
effect in both federal-question and diversity cases.12 Regarding
federal-question dismissals, the Court in Semtek emphasized that
no federal textual provision addresses the claim-preclusive
effect of a federal-court judgment in a federal-question case,
yet we have long held that States cannot give those judgments
merely whatever effect they would give their own judgments, but
must accord them the effect that this Court prescribes.13
To determine the claim-preclusive effect of a punitive
dismissal under Rule 41(b), then, Semtek requires us to look for
an answer in federal common law, not Rule 41(b). And federal
case law provides a clear answer, holding that, unless the
dismissing court otherwise specifies, a Rule 41(b) dismissal for
failure to comply with a court order is on the merits in the
traditional sense and must be given preclusive effect:
All of the dismissals enumerated in Rule
41(b) which operate as adjudications on the
merits failure of the plaintiff to
prosecute, or to comply with the Rules of
Civil Procedure, or to comply with an order
of the Court, or to present evidence showing
a right to the relief on the facts and the
law primarily involve situations in which
the defendant must incur the inconvenience of
preparing to meet the merits because there is
no initial bar to the Courts reaching them.
It is therefore logical that a dismissal on
one of these grounds should, unless the Court
otherwise specifies, bar a subsequent
action.[14]
Wright, Miller & Cooper amplifies this reasoning,
describing the unique characteristics of penalty dismissals that
justify giving them a preclusive effect:
Rule 41(b) provides that unless the court in
its order for dismissal otherwise provides,
dismissals for failure to prosecute, to
comply with the civil rules, or to comply
with any order of court operate as an
adjudication on the merits. The purpose of
this provision is to establish a strong
sanction to enforce compliance with proper
procedure. Quite apart from Rule 41(b), this
purpose of itself would suggest that penalty
dismissals often should preclude a second
action on the same claim.[15]
And Semtek itself makes the same point. The specific
question at issue in Semtek was the preclusive effect of a
federal judgment that dismissed a diversity claim on statute-of-
limitations grounds under Rule 41(b).16 Applying its common-law
power to decide the issue, the Court fashioned a federal rule for
diversity cases that ordinarily would incorporate the claim-
preclusion law of the state whose substantive law is at issue.17
But the Court took pains to warn that it might deviate from this
rule if the state law at issue refused to give claim-preclusive
effect to a punitive dismissal:
This federal reference to state law will not
obtain, of course, in situations in which the
state law is incompatible with federal
interests. If, for example, state law did
not accord claim-preclusive effect to
dismissals for willful violation of discovery
orders, federal courts interest in the
integrity of their own processes might
justify a contrary federal rule.[18]
In summary, then, Semtek requires us to determine the
preclusive effect of DeNardos Rule 41(b) dismissal by referring
to federal common law. Because federal cases unequivocally treat
a punitive dismissal like DeNardos a judgment that terminates a
case for failing to follow court orders as a judgment on the
merits that has claim-preclusive effect, we hold that the federal-
court judgment dismissing DeNardos claim against Barrans had the
effect of precluding his subsequent state action against Barrans,
which asserted the same claim.
So far, our decision precludes DeNardo from pursing his
state claims only against the individual defendants that he named
in his superior court complaint.19 We have not yet considered
his state claims against newly named agencies, the Alaska
Commission on Postsecondary Education and the Alaska Student Loan
Corporation. DeNardo asserts that, because federal law barred
him from naming these agencies as defendants in his federal-court
action, the superior court erred in concluding that res judicata
precluded him from suing them in state court.
Yet res judicata can bind parties who did not
participate in the prior action: the doctrine holds that a
properly entered judgment should be conclusive upon the parties
and those in privity with them.20 Because the commission and the
corporation are governmental entities, not individuals, and so
could not act except through their officers and employees, their
liability could only be established vicariously, through proof
that their officers and employees (the individual defendants
named in DeNardos complaint) acted wrongfully.21 Under these
circumstances, privity arises between the agency defendants, who
had not been sued in federal court, and the individual
defendants, all of whom were sued for actions taken in the course
of their employment, because their relationship is such that one
of them is vicariously responsible for the conduct of the other.22
It follows that, by precluding DeNardos individual claims, we
also must preclude his agency claims.
IV. CONCLUSION
We therefore AFFIRM the superior courts judgment of
dismissal.
_______________________________
1 The Ninth Circuit Court of Appeals summarily affirmed
the dismissal in DeNardo v. Barrans, 230 F.3d 1366 (9th Cir.
2000) (unpublished table decision), cert. dismissed, 531 U.S. 989
(2000).
2 The Ninth Circuit Court of Appeals summarily affirmed
the dismissal in DeNardo v. Barrans, 238 F.3d 428 (9th Cir. 2000)
(unpublished table opinion), cert. dismissed, 531 U.S. 1006
(2000).
3 Several of the defendants named in the state complaint
are different from those named in the federal complaint, but
those differences are irrelevant. Three of the newly named
defendants, Burton Research, Sharon Burton, and Karla Burton,
were never served with process and did not participate in the
superior court proceedings. The remaining newly named defendants
are either successors of previously named defendants or
additional commission members not alleged to have committed
specific wrongful acts.
4 For example, we recently stated:
The doctrine of res judicata provides that a
judgment in a prior action will bar a
subsequent action if the prior judgment was
(1) a final judgment on the merits, (2) from
a court of competent jurisdiction, (3) in a
dispute between the same parties (or their
privies) about the same cause of action.
Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1251 (Alaska 2001),
cert. denied, 122 S. Ct. 1081 (2002) (mem.).
5 Federal Rule of Civil Procedure 41(b) provides, in
relevant part:
Involuntary Dismissal: Effect Thereof.
For failure of the plaintiff to prosecute or
to comply with these rules or any order of
court, a defendant may move for dismissal of
an action or of any claim against the
defendant. Unless the court in its order for
dismissal otherwise specifies, a dismissal
under this subdivision and any dismissal not
provided for in this rule, other than a
dismissal for lack of jurisdiction, for
improper venue, or for failure to join a
party under Rule 19, operates as an
adjudication upon the merits.
6 531 U.S. 497 (2001).
7 See id. at 501-02 ([A]n on the merits adjudication is
one that actually pass[es] directly on the substance of [a
particular] claim before the court.) (quoting Restatement
(Second) of Judgments 19 cmt. a (1982) [hereinafter
Restatement]).
8 Id. (quoting Restatement 19 cmt. a).
9 Id. at 506.
10 Id.
11 Id.
12 Id. at 507-08.
13 Id. at 507 (citations omitted).
14 Costello v. United States, 365 U.S. 265, 286-87 (1961).
15 18A Charles Alan Wright, Arthur R. Miller, & Edward H.
Cooper, Federal Practice and Procedure 4440 (2d ed. 2002); see
also Restatement 19 cmt. e (adopting a rule of preclusion for
failure to prosecute, to obey an order of court, or to appear).
16 See Semtek, 531 U.S. at 499.
17 See id. at 508.
18 Id. at 509.
19 We include in this category individual defendants newly
named in DeNardos state claim by virtue of their status as
successors of previously named defendants, since these newly
named individuals are essentially placeholders for previously
named defendants; we similarly include commission members newly
added in the state action, since these defendants were simply
added in their capacity as board members representing the newly
named agency defendants and are not alleged to have committed any
specific wrongful acts.
20 Pennington v. Snow, 471 P.2d 370, 374 (Alaska 1970)
(quoting State v. Baker, 393 P.2d 893, 897 (Alaska 1964)).
21 See City of North Pole v. Zabek, 934 P.2d 1292, 1300
(Alaska 1997) (For vicarious liability to attach, some sort of
underlying liability must be established for which the employer
can be held liable.).
22 See Restatement 51. We follow the Restatement of
Judgments in determining whether privity exists for res judicata
purposes. See, e.g., Alaska Foods, Inc. v. Nichiro Gyogyo
Kaisha, Ltd., 768 P.2d 117, 121 (Alaska 1989).
