COLLEGESOURCE, INC., a California corporation, Plaintiff-Appellant, v. ACADEMYONE, INC., a Pennsylvania corporation, Defendant-Appellee.
No. 15-56994
United States Court of Appeals, Ninth Circuit.
September 15, 2017
Submitted September 1, 2017* Pasadena, California
Further, though Sandoval‘s father and two other family members were attacked in El Salvador, the evidence did not show that the perpetrators were targeting his family and thus that they would seek him out. Rather, the evidence indicated that the attacks were financially motivated. Additionally, one of Sandoval‘s uncles has continued to live in El Salvador without being harmed. His father has also been safe during numerous return visits to El Salvador, as has his grandmother. This evidence supports the BIA‘s finding that Sandoval did not face a high risk of being attacked upon return. See Santos-Lemus v. Mukasey, 542 F.3d 738, 748 (9th Cir. 2008) (“[B]ecause Santos-Lemus‘s mother has remained safely in his hometown, substantial evidence supports the Board‘s finding that it is not more likely than not that Santos-Lemus will be tortured by or with the consent or acquiescence of the Salvadoran government upon return.“), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013). Moreover, there is no evidence that the Salvadoran government would acquiesce in any future torture perpetrated against Sandoval. Though the police failed to investigate the attack on one of his family members, they investigated the two others.
PETITION FOR REVIEW DENIED.
*Darren Quinn, Law Offices of Darren J. Quinn, Del Mar, CA, William Frederick Woods, San Diego, CA, for Plaintiff-Appellant
Jess Booth, Attorney, Duane Morris LLP, San Diego, CA, Aliza Rebecca Karetnick, Esquire, David E. Landau, Esquire, Litigation Counsel, Robert M. Palumbos, Andrew Ronald Sperl, Esquire, Duane
Before: WARDLAW and BYBEE, Circuit Judges, and BARTLE,** District Judge.
MEMORANDUM ***
CollegeSource, Inc. (“CollegeSource“) appeals the district court‘s grant of summary judgment on res judicata grounds in AcademyOne, Inc.‘s (“AcademyOne“) favor. We have jurisdiction pursuant to
1. The district court correctly decided that AcademyOne did not waive its res judicata defense by failing to plead it in its Answer. AcademyOne did not waive its preclusion defense by raising it for the first time on summary judgment because the preclusive judgment had not been rendered when the Answer was filed, and AcademyOne raised the defense as soon as it became available. See Sanchez v. City of Santa Ana, 915 F.2d 424, 432 (9th Cir. 1990). “[D]efendants may raise an affirmative defense for the first time in a motion for summary judgment ... if the delay does not prejudice the plaintiff.” Magana v. Commonwealth of the N. Mar. I., 107 F.3d 1436, 1446 (9th Cir. 1997); see also Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984). Moreover, AcademyOne informed CollegeSource numerous times during proceedings in California and Pennsylvania that it intended to raise a res judicata defense, and thus CollegeSource was not prejudiced by AcademyOne‘s assertion of the defense at summary judgment.
2. The district court correctly put the burden on CollegeSource to prove that it lacked a full and fair opportunity to litigate in the Pennsylvania Action and correctly concluded that CollegeSource failed to meet its burden. A “full and fair opportunity to litigate” is not an element of claim preclusion but rather may be proven by the party seeking to avoid the preclusive effect of a prior judgment. See Kremer v. Chem. Constr. Corp., 456 U.S. 461, 480-81 (1982); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg‘l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). Although the district court applied the more rigorous standard articulated in Blonder-Tongue Laboratories v. University of Illinois Foundation, 402 U.S. 313, 333 (1971), to assess whether CollegeSource had a full and fair opportunity to litigate in the Pennsylvania Action, Kremer‘s due process standard is more appropriate here. See Kremer, 456 U.S. at 480-81; Shaw v. Cal. Dep‘t Alcoholic Beverage Control, 788 F.2d 600, 606 (9th Cir. 1986) (“The Court stated that in the context of claim preclusion, a party has had a full and fair opportunity to litigate if the procedures
3. The district court correctly determined that the judgment in the Pennsylvania Action precluded CollegeSource from continuing to litigate its misappropriation and California statutory claims in the California Action, even though CollegeSource did not present those claims to the Pennsylvania district court. CollegeSource offers various reasons why it “could not have brought” the misappropriation and statutory claims in the Pennsylvania Action but misses the basic point that those claims arise from the same transactional nucleus of fact as the claims CollegeSource raised in the Pennsylvania Action. See Turtle Island Restoration Network v. U.S. Dep‘t of State, 673 F.3d 914, 917-19 (9th Cir. 2012); United States v. Liquidators of European Fed. Credit Bank, 630 F.3d 1139, 1151-52 (9th Cir. 2011) (identifying the “true inquiry” as whether the claims arise from the same transactional nucleus of fact, not whether the unasserted claims would have succeeded if brought in the first forum). Moreover, allowing the California Action to proceed would force AcademyOne to relitigate rights that it had already secured in the Pennsylvania Action. See id. CollegeSource is not entitled to a second bite at the apple.
4. The district court did not abuse its discretion by denying CollegeSource‘s request for materials considered by AcademyOne‘s expert in support of its opposition to CollegeSource‘s terminated motion. “[A] decision to deny discovery will not be disturbed except upon the clearest showing that the denial of discovery results in actual and substantial prejudice to the complaining litigant.” Laub v. U.S. Dep‘t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (internal quotation marks omitted). Parties are entitled to discovery of only material that is “relevant to any party‘s claim or defense.”
5. The district court correctly concluded that CollegeSource did not have a Seventh Amendment right to a jury trial on the question of res judicata. “The judge decides questions of law; the jury, questions of fact.” Sparf v. United States, 156 U.S. 51, 89 (1895). “The preclusive effect of a judgment in a prior case presents a mixed question of law and fact in which the legal issues predominate.” Robi v. Five Platters, Inc., 838 F.2d 318, 321 (9th Cir. 1988). CollegeSource neither provides any legal authority for its position that juries have a role to play in determining the application of res judicata nor points to any question of fact appropriate to be determined by a jury.
AFFIRMED.