HEADWATERS INC., an Oregon nonprofit corporation; Forest Conservation Council, Plaintiffs-Appellants, v. U.S. FOREST SERVICE, Defendant-Appellee.
No. 01-35898
United States Court of Appeals, Ninth Circuit
Argued and Submitted July 10, 2003. Filed Feb. 23, 2005.
This case is governed by United States v. Valdez, 195 F.3d 544 (9th Cir.1999). In Valdez, this court held that a procedural default defense was not waived by the failure of a state to raise it in a motion to dismiss. In Valdez, this court reversed a district court‘s dismissal of a habeas petition on statute of limitations grounds for reconsideration in light of any other available defenses. The court noted that such defenses would normally be waived by the government‘s failure to raise it to the district court, but that “[h]ere . . . the government only filed a motion to dismiss, which was granted, and never filed an answer to the § 2255 motion.” Id. at 548. The court concluded that “[w]e thus deem it premature, at this stage, to hold that the government has waived any possible procedural default defense.” Id. We similarly hold that, on the facts of this case, the State did not waive its procedural default defense.
Furthermore, in the analogous context of civil litigation, we have held that a motion to dismiss is not a responsive pleading within the meaning of the
B Request for a Certificate of Appealability
We deny Morrison‘s motion to expand his COA to include a claim of ineffective assistance of counsel. He did not fairly present this to the highest court of the State of Montana, and appears, in any event, to have no claim of denial of the federal right to the effective assistance of counsel that would be debatable among jurists of reason.
For the foregoing reasons, the district court‘s order dismissing Morrison‘s habeas petition is AFFIRMED, and his motion to broaden his COA is DENIED.
Lori J. Cooper, Williams, OR, for the appellants.
Todd S. Aagaard, Attorney, United States Department of Justice, Washington, DC, for the appellee.
Opinion by Judge BERZON; Concurrence by Judge GOODWIN.
ORDER
The Opinion filed on September 8, 2004, and published at 382 F.3d 1025 (9th Cir. 2004), is withdrawn and superceded by the opinion filed concurrently herewith.
With the filing of the new opinion, appellants’ pending petition for rehearing en banc is DENIED as moot, without prejudice to refiling a subsequent petition for rehearing and/or rehearing en banc. See 9th Cir. G.O. 5.3(a).
BERZON, Circuit Judge:
The district court held, sua sponte, that two environmental organizations who have never litigated the validity of several timber sales are precluded from doing so because counsel for other organizations, a year earlier, signed a dismissal with prejudice of a similar suit. We have in this nation a ” ‘deep-rooted historic tradition that everyone should have his own day in court,” and presume, consequently, that “[a] judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.” Richards v. Jefferson County, 517 U.S. 793, 798 (1996) (quoting Martin v. Wilks, 490 U.S. 755, 762 (1989)). While there are narrow exceptions to this principle, usually denominated by the term “privity,” the district court here applied the privity doctrine without establishing, among other prerequisites, that the present plaintiffs were adequately represented in the prior suit, and without giving plaintiffs an opportunity to demonstrate that they were not. We reverse, and remand for consideration of the preclusion question after full adversary airing and a development of an appropriate record.
I. Background
On May 13, 1999, six environmental groups and two individuals1 (“American Lands plaintiffs“) filed suit against the Forest Service challenging various timber sales, including the Beaver-Newt and Silver Fork timber sales. American Lands Alliance v. Williams, No. 99-697-AA (D.Or.1999). The plaintiffs filed an amended complaint on October 26, 1999, which advanced nine claims for relief under the
On December 13, 1999, before any developments in the case apart from the filing of a scheduling order and an amended complaint—before, that is, any litigation on the merits—and, as far as the record shows, without receiving any concessions from the defendants, the American Lands plaintiffs stipulated to a dismissal of their complaint with prejudice. On January 19, 2000, District Judge Ann Aiken issued the dismissal. The American Lands complaint was not denominated a class action, and there is no indication that Judge Aiken reviewed the fairness of the stipulation as it affected third parties.
More than one year later, on February 21, 2001, one of the American Lands plaintiffs, the Klamath-Siskiyou Wildlands Center (“Wildlands Center“), represented by a new attorney, filed a new complaint regarding the Beaver-Newt and Silver Fork
The present record is silent as to when the plaintiffs here (“Headwaters“)2 learned of the American Lands and Klamath-Siskiyou litigation. On July 5, 2001, three days after Judge Hogan dismissed the Wildlands Center‘s lawsuit, Headwaters instigated suit in the same district court in which the American Lands and Klamath-Siskiyou suits had been filed, using the same lawyer and a similar complaint as in Klamath-Siskiyou (but not as in American Lands). The current complaint challenges the Beaver-Newt and Silver Fork timber sales, the same two sales challenged by the Wildlands Center in Klamath-Siskiyou; alleges, differently than did the American Lands complaint, the plaintiffs’ interest in and use of the forests; and relates its claims to particular endangered species, which the American Lands complaint did not do. On July 26, 2001, Judge Hogan, to whom the present case was also assigned, dismissed the Headwaters complaint sua sponte under the res judicata doctrine. Headwaters, Inc. v. United States Forest Serv., 159 F.Supp.2d 1253, 1258 (D.Or.2001). He neither held a hearing nor received any briefing on either the merits of the case or the applicability of res judicata.3 Id. Headwaters appeals.
A district court‘s judgment based upon res judicata is a mixed question of law and fact in which legal issues predominate. Accordingly, we review the district court‘s order de novo. See Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998); United States v. Geophysical Corp., 732 F.2d 693, 697 (9th Cir.1984).
II. Discussion
“The doctrine of res judicata provides that a final judgment on the merits bars further claims by parties or their privies based on the same cause of action,” and “is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their
A. Identity of Claims
In determining whether a present dispute concerns the same claims as did prior litigation, the Ninth Circuit considers:
(1) [W]hether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. The last of these criteria is the most important.
Costantini v. Trans World Airlines, 681 F.2d 1199, 1201–02 (9th Cir.1982) (internal citation omitted).
Headwaters’ complaint alleges an infringement of the same right and arises out of the same nucleus of facts present in both the American Lands and Klamath-Siskiyou litigation. The complaint in this case challenges the timber sales on the grounds that the Forest Service violated NEPA, NFMA, and the APA. All three of these claims were present in the prior suits. Further, the Beaver-Newt and Silver Fork timber sales are part of the underlying “nucleus of facts” that forms the basis for all three of these suits. Accordingly, an identity of claims exists.
B. Final Judgment on the Merits
The district court in American Lands entered a final judgment when it dismissed the action with prejudice pursuant to the stipulated dismissal. We have held that a stipulated dismissal of an action with prejudice in a federal district court generally constitutes a final judgment on the merits and precludes a party from reasserting the same claims in a subsequent action in the same court. See Concha v. London, 62 F.3d 1493, 1507-08 (9th Cir.1995).4
C. Privity
1. General principles
” ‘Privity’ . . . is a legal conclusion ‘designating a person so identified in inter-
However, “the term ‘privity’ is now used to describe various relationships between litigants that would not have come within the traditional definition of that term.” Richards, 517 U.S. at 798. Richards cited two sources for this statement: the Restatement (Second) of Judgments and Martin v. Wilks, 490 U.S. 755 (1989). The former adds to the traditional privity categories circumstances in which “[a] person who is not a party to an action . . . is represented by a party,” including trustees and beneficiaries, other fiduciary relationships and consensual or legal representational relationships, and “[t]he representative of a class of persons similarly situated, designated as such with the approval of the court, of which the person is a member.” RESTATEMENT (SECOND) OF JUDGMENTS § 41(1). Martin, in the portion quoted in Richards, adds “certain limited circumstances [in which] a person, although not a party, has his interests adequately represented by someone with the same interests who is a party,” including ” ‘class’ or ‘representative’ suits” and “control of litigation on behalf of one of the parties in the litigation,” as well as “special remedial scheme[s] . . . expressly foreclosing successive litigation by nonlitigants, as for example in bankruptcy or probate.” 490 U.S. at 762 n. 2.
Irwin v. Mascott, 370 F.3d 924 (9th Cir.2004), recently summarized the amalgam of circumstances, broader than traditional privity relationships, that have been referred to in our cases as “virtual representation.”5 “A non-party can be bound by the litigation choices made by his virtual representative,” id. at 929, only if certain criteria are met: “[A] close relationship, substantial participation, and tactical maneuvering all support a finding of
As this summary indicates, parallel legal interests alone, identical or otherwise, are not sufficient to establish privity, or to bind a plaintiff to a decision reached in another case involving another plaintiff. See Favish v. Office of Indep. Counsel, 217 F.3d 1168, 1171 (9th Cir.2000) (refusing to find privity where the former and present litigants shared only “an abstract interest in enforcement” of the same legal requirement) (quoting United States v. ITT Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir.1980)); see also Tice v. Am. Airlines, Inc., 162 F.3d 966, 971 (7th Cir.1998).
2. Adequacy of Representation
Richards holds that adequate representation is a due process prerequisite to precluding a litigant from his day in court if he was not a party to the earlier litigation. 517 U.S. at 800-01. We understand Irwin‘s adequate representation prong, see 370 F.3d at 930, as subsuming Richards‘s due process requirements.
Richards considered a taxpayer class action challenging a county tax on federal constitutional grounds. The county claimed Richards‘s suit was precluded by an earlier case in which the city of Birmingham and three other taxpayers (not claiming to represent a class) litigated and lost a state-law challenge to the tax. The Court rejected this argument, emphasizing that the prior individual plaintiffs gave no notice to Richards‘s class that they intended to represent and litigate on behalf of the class, id. at 799, and that there was no indication the court hearing the first case “took care to protect the interests of” the Richards plaintiffs. Id. at 802. Thus, “to contend that the plaintiffs in [the earlier litigation] somehow represented petitioners, let alone represented them in a constitutionally adequate manner, would be ‘to attribute to them a power that it cannot be said that they had assumed to exercise.’ ” Id. at 802 (quoting Hansberry v. Lee, 311 U.S. 32, 46 (1940)). As the two sets of plaintiffs were otherwise “best described as mere strangers to one another,” the Court was “unable to conclude that the [earlier] plaintiffs provided representation sufficient to make up for the fact that [the later plaintiffs] neither participated in, nor had the opportunity to participate in, the [earlier] action.” Id. (citations and internal quotation marks omitted).
The district court noted, as one reason for finding that Headwaters had been adequately represented, that the plaintiffs in both cases seek “vindication of the public right to require” a federal agency to follow federal law. We reject the invitation to craft a “public right” exception to the due process requirement of adequate representation. Richards itself involved a question that pertained to all taxpayers, and the public nature of that question did not lead the Supreme Court to create an exception to its adequate representation holding.
3. Sua Sponte Dismissal
As our discussion to this point indicates, the requisites for finding non-traditional forms of privity, outlined in Irwin, are not readily determined from pleadings. For that reason, sua sponte dismissal of subsequent actions such as this one, filed by parties not involved in the prior litigation, is not appropriate. As a general matter, a court may, sua sponte, dismiss a case on preclusion grounds “where the records of that court show that a previous action covering the same subject matter and parties had been dismissed.” Evarts v. W. Metal Finishing Co., 253 F.2d 637, 639 n. 1 (9th Cir.1958)
Here, of course, the parties were not the same, and the problem is not simply that no argument was permitted but that the pertinent facts necessary to make a privity determination, outlined above, were not investigated. The district court‘s order of dismissal recounted only the following pertinent facts: That it had heard argument in a “similar case,” Klamath-Siskiyou; that Headwaters had hired the Wildlands Center‘s attorney; that the Headwaters complaint contained “virtually identical claims” as the Wildlands Center‘s; and that the parties in the earlier cases were seeking to litigate ” ‘not . . . any interests peculiar to themselves, but . . . the public right to require Forest Service compliance with NEPA [and the NFMA]’ ” (quoting Sierra Club v. Block, 576 F.Supp. 959, 966 (D.Or.1983)) (alteration in original). From those considerations alone, the district court concluded that “[t]he elements of res judicata are satisfied.”
The considerations recited by the district court are insufficient, standing alone, to justify its conclusion. Instead, the pertinent “virtual representation” privity factors, outlined in Irwin, require factual development beyond the bare record. Sua sponte dismissal was thus inappropriate.
Of supervening importance, as the consideration is mandatory, see Irwin, 370 F.3d at 930, and likely to be determinative, there is no record before us concerning adequate representation considerations. Without factual development, there is no way to determine whether the adequate representation/due process requirements, discussed above, were met here. We do not know whether Headwaters had notice of the earlier suits while they were pending.7 Moreover, it appears that the American Lands suit was dismissed with preju-
adequate representation might cure a lack of notice . . . a prior proceeding, to have a binding effect on absent parties, would at least have to be ‘so devised and applied as to insure that those present are of the same class as those absent and that the litigation is so conducted as to insure the full and fair consideration of the common issue.’
(quoting Hansberry, 311 U.S. at 43).
In addition to the fact that the common issue never was considered by the court in the prior litigation, there is nothing else in the current record to indicate that American Lands was structured so as to protect “strangers” to that case. See Hansberry, 311 U.S. at 43, quoted in Richards, 517 U.S. at 801. As in Richards, the American Lands litigation was not a class action, even putatively.8 As a result, the district court in the earlier case did not provide any safeguards to assure that all parties potentially affected by the judgment were adequately represented, as would be the case were certification of a class sought. See
Furthermore, the district court appears to have inferred that Headwaters and the Wildlands Center have close organizational ties, based only on the fact that the two are co-plaintiffs in a separate lawsuit. There is no record support for this inference. We know nothing else about the relationship between the present plaintiffs and the former ones, such as whether Headwaters and the Wildlands Center have overlapping officers. Without that information, we cannot evaluate the “close relationship” prong of this circuit‘s virtual representation/privity analysis, as articulated in Irwin. Nor is there any record concerning whether the present plaintiffs had any role in the prior litigation.
There is one final reason sua sponte dismissal was inappropriate: Judicial re-
III. Conclusion
We do not prejudge the outcome of the res judicata issue in this case. Instead, we reverse the sua sponte dismissal and remand to the district court for full consideration of the question, in accord with this opinion, after an opportunity for full briefing and argument and for appropriate factual development. REVERSED and REMANDED.
GOODWIN, Circuit Judge, concurring separately:
I concur in the majority opinion, but write separately to remind the district court on remand that if the factual record developed after remand shows that a party or counsel were, as suspected by the district court, in fact gaming the system to prolong unnecessary litigation, the court has discretionary remedies in the nature of costs and fees to protect the court from imposition.
MARSHA S. BERZON
UNITED STATES CIRCUIT JUDGE