NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OKSANA BAIUL, an individual, No. 16-56658
Plaintiff-Appellant, D.C. No. 2:15-cv-05163
v.
NBC SPORTS, a division of MEMORANDUM*
NBCUNIVERSAL MEDIA, LLC, a
Delaware limited liability company; et al.,
Defendants-Appellees,
and
MENDELSON ENTERTAINMENT
GROUP, a California limited liability
company and DOES, 1 - 9,
Defendants.
Appeal from the United States District Court
for the Central District of California
Hon. Dean D. Pregerson, District Judge, Presiding
Argued and submitted April 12, 2018
Pasadena, CA
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: BEA and MURGUIA, Circuit Judges, and BASTIAN,** District Judge.
Plaintiff-Appellant Oksana Baiul (“Baiul”) appeals the judgment of the
Central District of California, which granted Defendants’ motion to dismiss her
claims as barred by res judicata. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. The district court did not err in denying Baiul’s motion to remand. Baiul
argues that remand was required because one defendant—On Ice, Inc. (“OII”)—
did not consent to the removal by Defendant NBCUniversal Media, LLC (“NBC”).
The defendant unanimity rule in 28 U.S.C. § 1446(b)(2)(A) requires that “all
defendants who have been properly joined and served must join in or consent to
the removal of the action.” Here, Baiul did not serve OII until after NBC had
already removed the case on the basis of diversity jurisdiction. Thus, at the time of
removal, all defendants who had been “properly joined and served”—i.e., NBC
only—“join[ed] in or consent[ed] to the removal of the action,” which is all that §
1446(b)(2)(A) requires. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1
(9th Cir. 1988) (noting that the unanimity “rule applies, however, only to
defendants properly joined and served in the action”) (citing Salveson v. W. States
Bankcard Ass’n, 731 F.2d 1423, 1429 (9th Cir. 1984) (“Our circuit rule is that a
**
The Honorable Stanley Allen Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
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party not served need not be joined; the defendants summonsed can remove by
themselves.”)); see also Lewis v. Rego Co., 757 F.2d 66, 69 (3d Cir. 1985)
(“[O]nce a case has been properly removed the subsequent service of additional
defendants who do not specifically consent to removal does not require or permit
remand on a plaintiff’s motion.”). Because there was no defect in the removal
under § 1446, there was no basis for the district court to remand under 28 U.S.C. §
1447.
2. The district court did not err in dismissing Baiul’s action based on res
judicata. First, Baiul argues that the district court lacked authority to construe
NBC’s motion for judgment on the pleadings (“MJP”) under Rule 12(c) of the
Federal Rules of Civil Procedure as a motion to dismiss under Rule 12(b)(6). But
this court has noted that the two motions are “functionally identical.” Gregg v.
Hawaii, Dep’t of Pub. Safety, 870 F.3d 883, 887 (9th Cir. 2017) (“Because a Rule
12(c) motion is functionally identical to a Rule 12(b)(6) motion, the same standard
of review applies to motions brought under either rule.” (internal quotation marks
and citation omitted)); see also Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.
1980) (construing a motion to dismiss as a motion for judgment on the pleadings).
Furthermore, construing the MJP as a motion to dismiss did not result in a
violation of Rule 12(g)(2). Fed. R. Civ. P. 12(g)(2) (prohibiting second-in-time
motions to dismiss that raise “a defense or objection that was available to the party
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but omitted from its earlier motion.”). The New York action was dismissed with
prejudice after NBC had filed its first motion to dismiss the instant action, and
therefore the res judicata defense was not “available” to NBC at that time.
Second, Baiul argues that the district court erred in applying the federal
preclusion analysis to determine the preclusive effect of the New York judgment.
This court has held that “California’s law of res judicata dictates what preclusive
effect is to be accorded to the prior judgment against appellant,” but “California
law . . . determines the res judicata effect of a prior federal court judgment by
applying federal standards.” Costantini v. Trans World Airlines, 681 F.2d 1199,
1201 (9th Cir. 1982). Since Costantini was decided, California courts have stated
that this is true at least where, as here, the rendering federal court sat in federal-
question jurisdiction. See, e.g., Louie v. BFS Retail & Commercial Operations,
LLC, 101 Cal. Rptr. 3d 441, 448 (Cal. Ct. App. 2009) (“[W]here a prior federal
judgment was based on federal question jurisdiction, the preclusive effect of the
prior judgment of a federal court is determined by federal law.” (emphasis in
original)); Butcher v. Truck Ins. Exch., 92 Cal. Rptr. 2d 521, 528 (Cal. Ct. App.
2000) (“California follows the rule that the preclusive effect of a prior judgment of
a federal court is determined by federal law, at least where the prior judgment was
on the basis of federal question jurisdiction.”). Costantini is this court’s only
4 16-56658
citable precedent on point. Therefore, the district court did not err in applying the
federal preclusion analysis.
Finally, the district court correctly held that the instant action was barred by
the judgment in the New York action. “In order for res judicata to apply there
must be: 1) an identity of claims, 2) a final judgment on the merits, and 3) identity
or privity between parties.” W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192
(9th Cir. 1997). Baiul has not disputed, in her Opening Brief or in her opposition
filed with the district court, that there was an identity of claimsor identity between
the parties. Accordingly, Baiul waived both issues. Greenwood v. FAA, 28 F.3d
971, 977 (9th Cir. 1994); Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir.
2000).
Baiul argues that the Southern District of New York’s dismissal of the New
York action with prejudice was not a final judgment on the merits because (1) an
appeal was pending and (2) the dismissal was based on a foreign limitations
period, rather than the merits. Neither argument is persuasive. First, “[i]n federal
courts, a district court judgment is ‘final’ for purposes of res judicata,” and “[t]his
is so even during the pendency of an appeal.” Sosa v. DIRECTV, Inc., 437 F.3d
923, 928 (9th Cir. 2006). Second, the Southern District of New York held that
each of Baiul’s claims were (1) preempted by the Copyright Act, and (2)
insufficient to “state a plausible claim,” as well as (3) time-barred. Thus, the
5 16-56658
Southern District of New York judgment was “on the merits” twice over. The
district court correctly held that Baiul’s instant claims are precluded.
AFFIRMED.
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