Nathan Koshak v. the County of Orange

FILED
NOT FOR PUBLICATION
FEB 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATHAN KOSHAK; JOEL KOSHAK; No. 14-55287
HELEN KOSHAK; NORMAN KOSHAK,
D.C. No. 8:13-cv-01732-CJC-AN
Plaintiffs - Appellants,

v. MEMORANDUM*

THE COUNTY OF ORANGE; OFFICER
LUIS DEANDA, in his individual
capacity; SANDRA HUTCHENS, in her
official capacity; OFFICER GREY, in his
individual capacity; 10675 SOUTH
ORANGE PARK BOULEVARD, LLC;
PHILLIP GREEN; JENNIFER NEEDS,
AKA Jennifer Willliams; WILLIAM
STEEL; TOM POLIS,

Defendants - Appellees.

Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding

Submitted February 9, 2016**
Pasadena, California

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: McKEOWN and IKUTA, Circuit Judges and PRATT,*** Senior District
Judge.

The Koshaks appeal the district court’s dismissal of their second federal

complaint stemming from a California Superior Court unlawful detainer judgment

and its execution. We hold that the claims in this second action are precluded by

res judicata.

“Res judicata applies when there is: ‘(1) an identity of claims; (2) a final

judgment on the merits; and (3) identity or privity between the parties.’” Stewart v.

U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). Here, all the requirements for

res judicata are met.

First, the Koshaks filed a new action and submitted a complaint that is

virtually identical to a complaint filed in a previous action. All of the claims in the

second action were made in the first complaint.

Second, the district court dismissed that action after the Koshaks missed a

deadline for filing an amended complaint. “Unless the dismissal order states

otherwise,” any involuntary dismissal, “except one for lack of jurisdiction,

improper venue, or failure to join a party,” “operates as an adjudication on the

***
The Honorable Robert W. Pratt, Senior District Judge for the U.S.
District Court for the Southern District of Iowa, sitting by designation.

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merits.” Fed. R. Civ. P. 41(b); see also Costello v. United States, 365 U.S. 265,

286 (1961) (stating that dismissal for failure of the plaintiff to prosecute operates

as an adjudication on the merits for purposes of Rule 41(b)) (construing an earlier

version of the rule). Here, the dismissal order did not state that the dismissal was

not an adjudication on the merits, nor did the dismissal fall within any of the stated

exceptions. Therefore, the district court’s dismissal of the complaint in the first

action for failure to prosecute was a final adjudication on the merits. The failure to

state whether the dismissal was with prejudice or not is immaterial where the terms

“adjudication on the merits” and “with prejudice” are interchangeable. Stewart,

297 F.3d at 956.

Third, all of the parties named in the second action were named in the first

complaint. The complaint in the second action differs only in the omission of one

defendant, the omission of one claim for abuse of process, and in the new factual

allegations about events that had occurred after the first filing and which plaintiffs

do not make the basis for any new claims.

The Koshaks retained a right to timely appeal the district court’s involuntary

dismissal of the first complaint, Fed. R. App. P. 4(a), a right to request leave to

amend beyond the extension already granted to them, Fed. R. Civ. P. 15(a)(2), and

a right to file an amended complaint as a matter of course for 21 days after service

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of the responsive motion to dismiss (September 3, 2013), Fed. R. Civ. P. 15(a)(1).

The Koshaks exercised none of these rights.

The Koshaks’ argument that res judicata is not properly before the court

on appeal is not persuasive. The issue was raised in the motion to dismiss in the

district court, and was similarly raised in the answering briefs in this appeal.

Although the district court dismissed the second complaint under the Rooker-

Feldman doctrine, see Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003), we may affirm

the district court on any grounds supported by the record, Recording Indus. Ass’n

of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1076 n.3 (9th Cir. 1999).

Finally, we deny the pending motions for judicial notice because the

submitted materials are not necessary to resolve this appeal.

AFFIRMED.

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