F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 8 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
F. MICHAEL CREUSERE,
Plaintiff-Appellant,
v. No. 99-2181
(D.C. No. CIV-97-98-LH/DJS)
SUSANNA MURPHY, individually (D. N.M.)
and in her official capacity as
Superintendent of Tularosa Municipal
Schools, Tularosa, NM; GARNETT
E. TWYMAN, individually and in his
official capacity as Superintendent of
Henry County Public Schools, New
Castle, KY; MICHAEL DORAME,
individually and in his positions of
Assistant Superintendent, Acting
Superintendent, and Superintendent
of Tularosa Municipal Schools,
Tularosa, NM; DONALD
MENDONCA, individually and in his
official positions of chairman and
member of the Tularosa Municipal
School Board, Tularosa, NM;
MANUEL RODRIGUES,
individually and in his official
position as member of the Tularosa
Municipal School Board, Tularosa,
NM; GODFREY CORDOVA,
individually, and in his official
position as member of the Tularosa
Municipal School Board, Tularosa,
NM; DAVE SHEPPARD,
individually and in his official
position as member of the Tularosa
Municipal School Board, Tularosa,
NM; REGINALD TORTILLA,
individually and in his official
position as member of the Tularosa
Municipal School Board, Tularosa,
NM; ROBERT SAINZ, individually
and in his official position as member
of the Tularosa Municipal School
Board, Tularosa, NM; BOBBY
MONTOYA, individually and in his
official position as member of the
Tularosa Municipal School Board,
Tularosa NM; TULAROSA
MUNICIPAL BOARD OF
EDUCATION; RONALD
GEISHEIMER, individually and in
his official capacities as Principal
and the Administrative Team at
Tularosa High School, Tularosa, NM;
ROBERT CERNY, individually and
in his official capacities as Assistant
Principal and the Administrative
Team at Tularosa High School,
Tularosa, NM; PAM MILLER,
individually and in her official
capacities as Athletic Director and
the Administrative Team at Tularosa
High School, Tularosa, NM; HENRY
COUNTY BOARD OF
EDUCATION, of New Castle,
Henry County, KY,
Defendants-Appellees,
and
JOHN MURPHY, individually and
as a co-conspirator of Susanna
Murphy in her official capacity of
Superintendent of Tularosa Municipal
Schools, Tularosa, NM and as
a co-conspirator of Garnett E.
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Twyman in his official capacity of
Superintendent of Henry County
Public Schools, New Castle, KY;
JOHN DOES, all unnamed persons,
individually and in their official
capacity as members of the Tularosa
Municipal School Board, Tularosa,
NM from 1994 to present,
Defendants.
ORDER AND JUDGMENT *
Before TACHA , ANDERSON , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff F. Michael Creusere appeals from an order of the district court
granting summary judgment to defendants. We affirm.
Mr. Creusere was employed as a science teacher in the Tularosa, New
Mexico School District from 1986 to 1994. Mr. Creusere offers two reasons as
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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to why his employment with the school district ended. He states he informed the
Board of Education in January 1994, that he would not return at the expiration of
his contract due to the negative, anti-academic atmosphere. He also states that his
contract was not renewed due to his expressed opinions about matters of public
concern including the funding of athletic programs at the expense of academic
programs thus forcing students to chose between athletics and academics.
Mr. Creusere was then hired by the Henry County, Kentucky School
District as a science teacher and coach for the 1994-95 school year. He was
terminated by Henry County at the end of that school year for insubordination,
conduct unbecoming a teacher, inefficiency, incompetency and neglect of duty.
Mr. Creusere commenced an action in the federal district court in the
Eastern District of Kentucky against many of the same defendants as present here.
The defendants are employed in various capacities with either the Tularosa or
Henry County school districts. He brought claims under 42 U.S.C. §§ 1983, 1985,
and the First, Fifth, Ninth, and Fourteenth Amendments. The Kentucky Eastern
District court dismissed the action against the New Mexico defendants for failure
to state a claim. The court granted the Kentucky defendants’ motion for summary
judgment. 1
1
Mr. Creusere’s appeal in the Kentucky action was dismissed as the notice
of appeal was untimely. See Creusere v. Twyman , No. 98-5783 (6th Cir. Dec. 13,
1999).
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Mr. Creusere then commenced this action. Here, Mr. Creusere raises many
of the same issues he raised in Kentucky. He also names many of the same
defendants. The district court granted the defendants’ motions for summary
judgment holding that his claims against the New Mexico defendants were barred
by res judicata and collateral estoppel . The court granted the Kentucky
defendants motion for summary judgment on the basis that it lacked personal
jurisdiction over those defendants.
On appeal, Mr. Creusere argues that a conspiracy existed and the district
court should have granted his default motion against defendant John Murphy.
Mr. Creusere asserts that res judicata and collateral estoppel do not apply against
the New Mexico defendants because his issues could not be heard in a single
forum and he has valid claims against both the New Mexico and Kentucky
defendants . Mr. Creusere argues the district court’s orders were confusing as it
did not reduce them to writing.
“We review the entry of summary judgment de novo, drawing all
reasonable inferences in favor of the nonmovants.” Hulsey v. Kmart, Inc.,
43 F.3d 555, 557 (10th Cir. 1994). The moving party must show there is no
genuine issue as to any material fact and it is entitled to judgment as a matter of
law. See id. The nonmovant must establish, at a minimum, an inference of the
presence of each element essential to the case. See id.
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The district court granted summary judgment to the New Mexico
defendants on the basis of res judicata and collateral estoppel . The court
determined that Mr. Creusere had brought the same claims against the same
parties in Kentucky. 2
Mr. Creusere argues that the Kentucky district court did
not have jurisdiction over the New Mexico defendants because service was
never properly effected.
A defect in the district court’s jurisdiction over a party is a personal
defense which may be asserted or waived by a party. Objections to
personal jurisdiction and service of process must be asserted in the
answer or in a pre-answer motion. If a party files a pre-answer
motion and fails to assert the defenses of lack of personal jurisdiction
or insufficiency of service, he waives these defenses.
FDIC v. Oaklawn Apartments , 959 F.2d 170, 174-75 (10th Cir. 1992) (quotation
and citations omitted).
The New Mexico defendants waived any defense relating to service of
process by failing to assert it. Therefore, the Kentucky district court properly
exercised jurisdiction over them.
Collateral estoppel precludes the relitigation of an issue that has been
decided in a previous action. See Murdock v. Ute Indian Tribe of Uintah &
2
Although the Kentucky district court dismissed the action against the New
Mexico defendants, “[a] ruling that a party has failed to state a claim on which
relief may be granted is a decision on the merits with full res judicata effect.” See
State Farm Mut. Auto. Ins. Co. v. Dyer , 19 F.3d 514, 518 n.8 (10th Cir. 1994)
(quotation omitted).
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Ouray Reservation , 975 F.2d 683, 687 (10th Cir. 1992). Res judicata bars the
relitigation of claims that arise from the same cause of action and that were or
could have been advanced in a prior proceeding. See Nwosun v. General Mills
Restaurants, Inc., 124 F.3d 1255, 1257 (10th Cir. 1997). We agree with the
district court that the claims Mr. Creusere raises here are barred by these two
doctrines. See Murdock , 975 F.2d at 687-90 (collateral estoppel) (identifying
elements which must be satisfied); Nwosun , 124 F.3d at 1257 (res judicata)
(same). We disagree with Mr. Creusere that he could not have brought all his
claims in the same action.
The district court granted summary judgment for the Kentucky defendants
because it did not have subject matter jurisdiction over them since they did not
have the requisite minimum contacts with New Mexico. The record shows that
the only contacts the Kentucky defendants had with New Mexico were several
phone calls by defendant Twyman to Tularosa school officials requesting
confirmation of Mr. Creusere’s employment information. Twyman received
several faxes in response. Mr. Creusere has not shown that the Kentucky
defendants engaged in any actions which would permit the New Mexico district
court to exercise personal jurisdiction over them pursuant to N.M. Stat. Ann.
§ 38-1-16(A).
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Mr. Creusere argues that the district court should have granted his motion
for default against defendant John Murphy as a conspirator in this action.
Mr. Murphy is not a named appellee in this appeal and we do not address this
issue as Mr. Murphy had no notice that he was subject to the jurisdiction of this
court on appeal and had no opportunity file a brief. See United States v. Morales ,
108 F.3d 1213, 1223 (10th Cir. 1997). However, we note that Mr. Creusere has
failed to meet the requirements for showing a conspiracy. The bald conclusory
statement in his complaint will not suffice. See Brown v. Zavaras , 63 F.3d 967,
972 (10th Cir. 1995).
Our review shows that the district court’s orders were clear. If
Mr. Creusere were confused, he should have requested clarification from
the court.
The judgment of the United States District Court for the District of
New Mexico is AFFIRMED for substantially the reasons set forth in its order
of May 20, 1999. The mandate shall issue forthwith.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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