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.
4