DiPinto v. Sperling

9 F.3d 2 | 1st Cir. | 1993

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           
No. 93-1671

              DENNIS DIPINTO AND KIERAN CUNNINGHAM,

                     Plaintiffs, Appellants,

                                v.

           JOHN SPERLING, IN HIS CAPACITY AS PRESIDENT
              OF LODGE #8 OF THE FRATERNAL ORDER OF
             POLICE AND THE CITY OF NEWPORT, ET AL.,

                      Defendants, Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

           [Hon. Ernest C. Torres, U.S. District Judge]
                                                      

                                           

                              Before

                       Breyer, Chief Judge,
                                          

                  Rosenn,* Senior Circuit Judge,
                                               

                     and Cyr, Circuit Judge.
                                           

                                           

   Kevin B. McBurney  with whom DiPinto Associates was  on brief for
                                                  
appellants.
   Joseph J. Nicholson, Jr. for appellee City of Newport.
                           
   Donald A. Woodbine with whom Vogel, Souls & Woodbine was on brief
                                                       
for Lodge #8 of the Fraternal Order of Police.

                                           
                         November 5, 1993
                                           

*Of the Third Circuit, sitting by designation.

          CYR, Circuit  Judge.   Appellants, former  probationary
          CYR, Circuit  Judge.
                             

police  officers with  the City  of Newport,  Rhode  Island, were summarily  terminated in June,  1989.   They then  filed separate state court  suits against the  City of Newport and  certain City officials [collectively:   the "City"],  claiming deprivations of their  alleged entitlement to  a hearing under  Rhode Island law. The state court  dismissed their claims, with  prejudice,1 on the ground that Rhode Island law affords probationary police officers no right to a termination hearing.

          Appellants  then  brought  this  action in  the  United States District  Court  for  the District  of  Rhode  Island  for alleged  violations of  the  collective bargaining  agreement and their civil rights, see 42 U.S.C.   1983, arising from the City's
                       

failure to afford  them a termination  hearing.  Their  complaint also  asserted claims against the Fraternal Order of Police Lodge #8 [the "Union"]  for breach of its duty  of fair representation. The district  court adopted the recommended decision  of a magis- trate judge, and entered summary judgment against appellants.  We affirm. I.   Claims Against the City.
                            

          Federal courts must  accord a state court  judgment the same preclusive effect it would receive in the state where it was rendered.   Allen v.  McCurry, 449 U.S.  90, 96  (1980) (  1983).
                             

                    

     1The  Rhode Island Supreme  Court likewise  upheld plaintiff Cunningham's termination.  DiPinto did not appeal.

                                2 Under the  Rhode Island doctrine  of res judicata  (claim preclu- sion), a final judgment on the merits precludes  later litigation of the same  claim by the  same parties.   Coates v. Coleman,  51
                                                            

A.2d 81, 85  (R.I. 1947).  See  Capraro v. Tilcon  Gammino, Inc.,
                                                                

751 F.2d 56,  58 (1st Cir. 1985) (per curiam).  A dismissal, with prejudice, constitutes a  final judgment on  the merits.   School
                                                                 

Comm.  of  North  Providence v.  North  Providence  Federation of
                                                                 

Teachers, 404 A.2d 493, 495 (R.I. 1979).  As the City was a party
        

to the state court actions,  we need only consider whether appel- lants  had a  full and  fair opportunity  in the  state court  to litigate against  the  City  all  issues raised  in  the  present action.  Kremer  v. Chemical Constr. Corp., 456  U.S. 461, 480-81
                                          

(1982).   Appellants do  not deny that  they had a  full and fair opportunity to  litigate their claims  against the City  in state court;  indeed, they admittedly chose, for strategic reasons, not
                                     

to  raise "the current . . . issues."  Consequently, their claims against the City are res judicata.2

                    

     2Appellants  now assert that  the City violated  their civil rights after  the state  court judgments were  entered.   As this
            
claim was not presented below, we decline to consider it.  Nieves
                                                                 
v. University of  Puerto Rico,     F.3d    ,     (1st Cir. 1993),
                             
No. 92-2214, slip op. at 23, n.19 (1st Cir. Oct. 18, 1993).

                                3 II.  Claims Against the Union.
                             

          A claim for breach of  a Union's duty of fair represen- tation  cannot succeed  absent a  showing, inter  alia,  that the
                                                      

underlying action  against the  employer was  meritorious.   Kis-
                                                                 

singer v. U.S. Postal Service, 801 F.2d 551, 553 (1st Cir. 1986).
                             

Cf. Hines v.  Anchor Motor Freight, 424 U.S.  554, 570-71 (1976).
                                  

Here, the Union  duly interposed its collateral  estoppel defense (issue  preclusion) in response to appellants' present attempt to relitigate the merits of their unsuccessful claims to a  termina- tion hearing.  Mutuality of parties is not essential to a collat- eral estoppel defense under Rhode Island law.   Providence Teach-
                                                                 

ers  Union, etc.  v. McGovern,  319  A.2d 358,  361 (R.I.  1974).
                             

Since appellants are collaterally estopped from relitigating  the merits of their  underlying claims against the City     an essen- tial  element of their  unfair representation claims  against the Union    the district court correctly entered summary judgment in favor of the Union.  See  Goldman v. First Nat'l Bank of  Boston,
                                                                

985 F.2d 1113, 1116 (1st Cir. 1993).3

          The  district court judgments in favor of the appellees must be affirmed.

          Affirmed.
                  

                    

     3Insofar as their complaint may attempt to plead  claims not dependent on precluded grounds, appellants failed to come forward with specific evidence, or  authority, sufficient to  demonstrate that the Union  is not entitled to  judgment as a matter  of law. Id.
   

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