USCA1 Opinion
April 8, 1992 [NOT FOR PUBLICATION]
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No. 91-2248
ISABELLE CARTA,
Plaintiff, Appellant,
v.
TOWN OF FAIRFIELD, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Isabelle Carta on brief pro se.
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Vernon I. Arey and Wheeler & Arey, P.A., on brief for appellees.
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Per Curiam. This is our second occasion to revisit
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the actions of the Town of Fairfield (the "town") which, on
April 5, 1989, denied a special permit to a non-profit
entity, Hospitality House, to operate a homeless shelter in
the town. In Lightfoot v. Matthews, No. 91-1506, slip op.
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(1st Cir. Feb. 14, 1992) (Lightfoot I), we affirmed the
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dismissal of the shelter director's complaint against a state
senator whose letter to the town about the permit application
was alleged to be defamatory. In Lightfoot v. Town of
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Fairfield, No. 91-2051, slip op. (1st Cir. Mar. 11, 1992)
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(Fairfield I), we affirmed the dismissal of the director's
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suit against the town for alleged defamation and violations
of due process in denying the permit. Isabella Carta1 was a
member of the shelter's Board of Directors at the time of the
permit denial, and subsequently filed this pro se complaint
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under 42 U.S.C. 1983. It alleged, in remarkably similar
fashion to the contentions in Fairfield I, that the town had
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defamed her and violated her rights to due process in
withholding the requested permit. The district court found
that plaintiff's prior state-court complaint against the town
barred this suit, and dismissed the complaint. Since this
case closely parallels our two prior related decisions, ante,
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we affirm, and state only those facts necessary to our
decision on appeal.
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1. Carta, it appears, is director Lightfoot's mother.
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Background
Background
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After the denial of the shelter permit, Carta filed a
complaint against the town in Maine's Superior Court seeking
redress, first, under 42 U.S.C. 1983 for the town's alleged
unconstitutional actions in denying the permit, and, second,
for asserted defamation to her business reputation. The
latter contention was supported by quoted portions of the
published statement issued by the town's Board of Appeals at
the time of the denial on April 5, 1989:
[T]he shelter . . . could change the character of a
neighborhood to such a degree that the peaceful
enjoyment of the residents could be adversely
affected. . . . [It was] not sufficiently
documented [that there were] . . . financial or
organizational capabilities to staff the shelter. .
. . It is the opinion of the Board of Appeals that
a lack of management and direction from a qualified
Board is essential for the protection and well
being of the clients as well as the citizens of
Fairfield.
The Superior Court, in a summary order, granted the
defendant's motion to dismiss on the basis that Carta's
complaint failed to state a claim upon which relief may be
granted. Carta v. Town of Fairfield, No. CV-90-66 (Me.
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Super. Ct., Som. Cty. Feb. 5, 1990). The order was not
appealed to the Maine Supreme Judicial Court.
Some fourteen months later Carta filed this complaint.
Focusing upon the April 5, 1989 actions of the Board of
Appeals in refusing to grant the shelter permit, the
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complaint alleged that the Board's hearing procedures
resulted in findings which deprived her of her right to enjoy
a good business reputation without due process. The injury
to her reputation, she claimed, arose out of the town's false
and defamatory public statements at the time of the denial.
After discovery, the town moved for summary judgment on
the ground, inter alia, that the complaint was barred under
the doctrine of res judicata because of the preclusive effect
of the prior Maine Superior Court judgment. Both complaints,
the town argued, arose out of the same set of operative facts
and identified exactly the same alleged defamatory language.
As to parties, the town noted that while the "Town of
Fairfield" was the only named defendant in the state-court
action, the caption of the federal complaint included the
town "and Individually Each Member of the 1989 Board of
Appeals, Fairfield Maine." The town's "Statement of
Uncontested Material Facts", filed in support of summary
judgment, asserted that "the plaintiff failed to achieve
service on any named defendant in this lawsuit except . . .
[the] Town Manager for the Town of Fairfield." The town
contended that the individual members of the Board of Appeals
who were neither named nor served were subject to automatic
dismissal under Fed. R. Civ. P. 4(j). Alternatively, the
town contended that the Board members were privies with the
town.
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Carta's opposition to summary judgment countered that
the parties here are different, and that res judicata did not
apply. Carta maintained that a summons sent to the town's
Code Enforcement Officer had included the names of the
relevant board members, but it was conceded that "only the
Town Manager acknowledged receipt of the summons and
complaint", presumably on behalf of the town. No reason was
given as to why service had not been accomplished as to any
other person. Apparently Carta believed that since the Board
members were known to the town they did not need to be
served.
In reply to this opposition, the town stated that the
Code Enforcement Officer was not a member of the Board of
Appeals at the time in question, that no return of service
was made as to him, and that Carta had failed to achieve
service of process on any other "defendant". Consequently,
the town posited, the record failed to establish that the
parties now are any different than those in the state-court
case, making the application of res judicata proper.
The district court granted the town's motion for summary
judgment, and entered judgment for "defendants Town of
Fairfield and the 1989 Board of Appeals." The court agreed
that Maine law regarding res judicata applied and that
Carta's complaint must be dismissed as an attempt to
relitigate "`issues that were tried, or may have been tried,
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in a prior action if: (1) the same parties or their privies
are involved in both actions; (2) a final judgment was
entered in the prior action; and (3) the matters presented
for decision now were, or might have been, litigated in the
prior action'", citing Currier v. Cyr, 570 A.2d 1205, 1208
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(Me. 1990).
As to the first element, the court found that Carta's
claims that this action implicated different parties was
"without factual support", and concluded that the complaint
involved the same parties as the state-court case. As to the
second and third elements, the court determined that the
prior dismissal for failure to state a claim was an
adjudication on the merits, and that the present complaint
clearly arose out of the same set of "operative facts" as the
prior action. So finding, the court decided that "the
dismissal of Carta's state-court action is res judicata as to
the present claims against the Fairfield defendants", and
granted the town's motion for summary judgment. This appeal
ensued.
Discussion
Discussion
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In Lightfoot I and Fairfield I, we applied the doctrine
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of res judicata and claim preclusion, and do not repeat that
discussion here. The district court correctly stated the
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Maine "rules" in that regard. First, there is no serious
dispute that a valid, final judgment was entered in the first
suit.2 Second, we have compared this complaint with the
prior state-court complaint and agree that under Maine's
transactional test both embrace the same cause of action.
Currier, 570 A.2d at 1208. We note some difficulty, however,
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regarding the third requirement in light of the entry of
summary judgment in favor of the town and the 1989 Board of
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Appeals. The district court acknowledged that the
doctrine of res judicata, under Maine law, contemplates that
a cause of action may not be relitigated when a prior suit
involved the same parties or their privies, and it made an
express finding that "the present action against the
Fairfield defendants involves the same parties as the state
court case." It is undisputed that only Carta and the town
were parties to the prior state action. As it does not
appear that the individual members of the 1989 Board of
Appeals of the town were ever made a party to the present
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2. Carta has argued that the state-court dismissal was
"wrong", and that she was foreclosed from presenting various
factual issues at trial. As we observed in Fairfield I,
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however, Carta lost the opportunity to vindicate her position
when she decided not to bring a direct appeal from the state-
court dismissal. She cannot "correct" the state-court
dismissal by again bringing the same cause of action. See
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Federated Dept. Stores, Inc. v. Motie, 452 U.S. 394, 398
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(1981).
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action,3 and because Fed. R. Civ. P. 4(j) mandates that,
except for good cause shown for failure to serve process,
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"the action shall be dismissed as to that defendant without
prejudice", we examine the record to determine whether these
individuals otherwise submitted themselves to the
jurisdiction of the court. See Insurance Corp. of Ireland v.
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Compagnie Des Bauxites, 456 U.S. 694, 703-05 (1982).
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It is elementary that without personal jurisdiction, a
court is without power to adjudicate a claim or obligation of
a person, and any judgment or order so rendered is null and
void. General Contracting & Trading Co. v. Interpole Inc.,
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899 F.2d 109, 114 (1st Cir. 1990). Ordinarily, "one is not
bound by a judgment in personam in a litigation in which he
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is not designated as a party or to which he has not been made
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3. In this case it is clear that Carta, for whatever
reasons, did not comply with the requirements of Fed. R. Civ.
P. 4, and thus failed to properly effect, or attempt, service
on the individual members of the 1989 Board. See Rule
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4(c)(2)(C)(ii). Nothing in the record approximates a "good
cause" showing to mitigate this failure. Rule 4(j). Carta's
pro se status does not insulate her from compliance with this
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(or any other) procedural rule. See, e.g., Kersh v.
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Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988); Patterson v.
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Brady, 131 F.R.D. 679, 683 n.4 (S.D. Ind. 1990). Nor did
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Carta name or otherwise allege any facts as to the individual
Board members, either in the body of the complaint (which
consistently refers to "the" defendant, the Town of
Fairfield), or in any other filed document. The
unacknowledged summons to the Code Enforcement Officer, which
did name the Board members, even if it gave actual notice to
those individuals, would not cure the deficit created by
Carta's failure to effect proper service. Media Duplication
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Services v. HDG Software, Inc., 928 F.2d 1228, 1232-35 (1st
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Cir. 1991).
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a party by service of process." Hansberry v. Lee, 311 U.S.
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32, 40 (1940) (citations omitted). This has been the
"consistent constitutional rule." Zenith Radio Corp. v.
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Hazeltine, 395 U.S. 100, 110 (1969); Martin v. Wilks, 490
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U.S. 755, 761-62 (1989). Obviously, this principle has
greater force when an individual's interests are adversely
affected by a judgment, but is of equal effect as to
judgments in favor of individuals who are de facto
"strangers" to the proceedings.4 See id. at 762;
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Northwestern National Casualty Co. v. Global Moving &
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Storage, Inc., 533 F.2d 320, 323 (6th Cir. 1976) ("[T]he
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trial court erred in entering judgment in favor of [a
"defendant"] before determining that it had the requisite
personal jurisdiction.")
Our examination of the record leads us to conclude that
the town never relinquished the right to contest personal
jurisdiction as to the individual Board members. The issue
was raised in its answer, the first pleading it filed, which
seasonably interposed the jurisdictional defenses of
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4. While "representative" suits are a recognized exception
to the general rule, Martin v. Wilks, 490 U.S. at 762 n.2
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(1989), we do not find the town's alternative and cursory
argument (that the unnamed and unserved Board members were
privies with the town for res judicata purposes) availing
since even if privity exists -- a question we do not decide -
- to the extent that Carta sought to sue the Board members in
their personal and individual capacity, they are not in
privity with the town. Gray v. Lacke, 885 F.2d 399, 405-06
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(7th Cir. 1989).
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insufficiency of process and insufficiency of service of
process. Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d
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1555, 1559 (1st Cir. 1989); see also Roque v. United States,
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857 F.2d 20, 21-22 (1st Cir. 1988). Lack of service over the
individual Board members was also a basis of the town's
motion for summary judgment. There, as before this court,
the town argued that the failure to serve was dispositive as
to the Board members and that any claims against them were
subject to dismissal under Rule 4(j). Alvarado-Morales v.
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Digital Equipment Corp., 843 F.2d 613, 615 (1st Cir. 1988).
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We do not perceive any litigation conduct by the town that
either expressly or by implication indicated an intent to
surrender the jurisdictional objection. See General
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Contracting & Trading v. Interpole, Inc., 940 F.2d 20, 22-23
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(1st Cir. 1991) (defendant's conduct constituted waiver).
Waiver, to be effective, "must unequivocally show an
intention to submit to the district court's jurisdiction."
Jardines Bacata, 878 F.2d at 1559. Without a showing of good
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cause for failure to effect service of process on the part of
the plaintiff, or a clear jurisdictional waiver on the part
of the town as to the Board members, the district court had
no personal jurisdiction over the unnamed and unserved
individual Board members. The complaint should, therefore,
have been dismissed as to those individuals. Fed. R. Civ. P.
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4(j); see also Glaros v. Perse, 628 F.2d 679, 685 (1st Cir.
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1980); Fed. R. Civ. P. 10(a).
Conclusion
Conclusion
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Accordingly, the judgment of the district court is
affirmed as to the Town of Fairfield, is vacated as to the
1989 Board of Appeals, and the case is remanded to the
district court with instructions to enter an order dismissing
the complaint as to the 1989 Board of Appeals for failure to
comply with Fed. R. Civ. P. 4(j).
Affirmed in part, vacated in part and remanded.
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