Mir v. Brown

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 25, 2021
FOR THE TENTH CIRCUIT
Christopher M. Wolpert
_________________________________ Clerk of Court
JEHAN ZEB MIR,

Plaintiff - Appellant,

v. No. 19-3232
(D.C. No. 2:15-CV-09097-JAR-JPO)
JAY BROWN; WESTPORT (D. Kan.)
INSURANCE CORPORATION;
IUNGERICH & SPACKMAN; RUSSELL
IUNGERICH; PAUL SPACKMAN,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before MATHESON, BRISCOE, and CARSON, Circuit Judges.
_________________________________

Jehan Zeb Mir, pro se, appeals the district court’s order granting defendants’

motion to dismiss his complaint on the grounds of res judicata. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
 I. MOTION TO DISMISS THE APPEAL

As a preliminary matter, we consider defendants’ motions to dismiss Mir’s

appeal as untimely. On August 19, 2019, a final judgment was entered that dismissed

Mir’s federal claims with prejudice and his state-law claims without prejudice. On

August 30, Mir moved to amend the judgment to reflect a dismissal of all claims with

prejudice under the mistaken belief that dismissal of the state-law claims without

prejudice meant there was no final judgment for purposes of appeal. In a September

30 order, the district court construed Mir’s motion as filed under Rule 59(e) of the

Federal Rules of Civil Procedure and denied it on the grounds that dismissal of the

state-law claims without prejudice did not affect the finality of the judgment. Mir

then filed a notice of appeal on October 8.

According to defendants, Mir’s appeal was untimely because it was not filed

within thirty days from the district court’s entry of the final judgment on August 19.

See Fed. R. App. P. 4(a)(1)(A) (“In a civil case . . . the notice of appeal . . . must be

filed with the district clerk within 30 days after entry of the judgment . . . .”).

Specifically, defendants argue the court erred in construing Mir’s request to amend

the judgment as a Rule 59(e) motion that tolled the deadline for filing a notice of

appeal. We disagree.

The thirty-day deadline to file a notice of appeal admits of several exceptions,

which include where a party files a timely motion to alter or amend the judgment

under Rule 59(e). A timely Rule 59(e) motion is one that is “filed no later than

[twenty-eight] days after the entry of the judgment.” Fed. R. Civ. P. 59(e). In such

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circumstances, the thirty-day deadline does not start to run until the court enters an

order that disposes of the Rule 59(e) motion. See Fed. R. App. P. 4(a)(4)(A)(iv).

“In determining whether a motion is brought under Rule 59, we look beyond

the form of the motion to the substance of the relief requested.” Yost v. Stout,

607 F.3d 1239, 1243 (10th Cir. 2010) (internal quotation marks omitted). “Where the

motion requests a substantive change in the district court’s judgment or otherwise

questions its substantive correctness, the motion is a Rule 59 motion, regardless of its

label.” Id. By contrast, a post-judgment motion that concerns a separate legal issue,

such as attorney’s fees, is not properly considered under Rule 59 because it seeks

relief on a legal issue that is “collateral to and separate from the decision on the

merits.” Id. (internal quotation marks omitted)

Here, Mir did not seek relief on an issue that was separate from or collateral to

the district court’s decision; rather, his motion concerned part of the court’s decision

itself. As a result, Mir’s timely-filed motion to amend the judgment tolled the time to

file his notice of appeal until the motion was denied on September 30, and his notice

of appeal, filed eight days later, was timely. We therefore deny defendants’ motions

to dismiss Mir’s appeal and turn to the merits.

II. BACKGROUND

The events underlying this case began in 1985 when Mir, a physician, was

terminated from a California hospital for alleged misconduct. In 1992, he retained

defendants Iungerich & Spackman, a California law firm, and its principals,

defendants Russell Iungerich and Paul Spackman (collectively “I & S”) to represent

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him in a state-court suit against the hospital to recover the income he allegedly lost as

a result of the termination. The suit was unsuccessful, and in 2001, Mir sued I & S

for malpractice.

Mir’s suit triggered the involvement of I & S’s malpractice carrier, defendant

Westport Insurance Corporation (“Westport”), which is domiciled in Overland Park,

Kansas. Westport, in turn, retained Greines, Martin, Stein & Richland (“the Greines

firm”) to represent I & S in the malpractice action. As part of the litigation, I & S

filed a counterclaim for unpaid legal fees in the amount of $58,000, plus attorneys’

fees, costs, and interest pursuant to the terms of its retainer agreement with Mir.

The parties agreed to settle the malpractice claim for $45,000. Following a

bench trial in 2003, the court entered judgment in favor of I & S on its counterclaim

for unpaid legal fees in the amount of $100,897, which included interest, costs, and

attorneys’ fees. Not long thereafter, I & S recorded the judgment.

In the meantime, Mir appealed. When Mir lost the appeal, I & S and the

Greines firm filed a new request for attorneys’ fees and costs incurred in defending

the appeal, which the court granted in the amount of $76,909. Mir appealed the

award of attorneys’ fees, which he also lost. I & S and the Greines firm filed another

request for attorneys’ fees in the amount of $30,160 for defending Mir’s appeal of

attorneys’ fees.

In 2013, I & S retained Frandzel, Robins, Bloom, Csato, LC (“the Frandzel

firm”) to assist in its effort to collect its judgment against Mir. To that end, the

Frandzel firm filed an application in the Superior Court of Los Angeles County for a

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renewed judgment in the amount of $438,594, which was granted by the clerk. But

Mir sued to vacate the renewed judgment on numerous grounds, including (1) the

$45,000 malpractice settlement should have been applied to principal on the

outstanding judgment instead of accrued interest and (2) the attorneys’ fees in the

amounts of $76,909 and $30,160 had been paid by Westport, and therefore, I & S was

seeking a double recovery. As part of discovery, Mir served a subpoena duces tecum

on Westport. Defendant Jay Brown (“Brown”), is a Kansas lawyer and senior legal

counsel for Westport’s parent company, who was involved in responding to the

subpoena.

The court rejected all of Mir’s arguments with the sole exception that the

$45,000 settlement should have been applied to reduce principal and recalculated the

amount of the renewed judgment as $408,610. Mir appealed.1

In May 2014, while his appeal was pending, Mir filed suit in California federal

district court against I & S, Westport, Brown, and the Greines and Frandzel firms

stemming from their actions in obtaining and attempting to enforce the state-court

judgment. Specifically, Mir asserted the following causes of action: (1) racial

discrimination under 42 U.S.C. § 1981; (2) deprivation of rights by a person acting

under color of state law under 42 U.S.C. § 1983; (3) conspiracy to violate civil rights

1
The California Court of Appeal affirmed the judgment in the amount of
$408,610. See Mir v. Iungerich & Spackman, No. B250393, 2015 WL 389634, at *4
(Cal. Ct. App. Jan. 29, 2015), as modified on denial of reh’g (Feb. 10, 2015).
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under 42 U.S.C. §§ 1985 and 1986: (4) civil RICO claims under 18 U.S.C. § 1964(c);

and (5) various state-law claims.

Westport and Brown moved to dismiss. The district court granted Brown’s

motion for lack of personal jurisdiction. The court also granted Westport’s motion

because Mir failed to state any cognizable claims and dismissed Mir’s complaint

without leave to amend. Further, the court declined to exercise supplemental

jurisdiction over the state-law claims against Westport. See Mir v. Greines, Martin,

Stein & Richland, No. 14-4132, 2015 WL 4139435, at *8-13, *17-23, *25 (C.D. Cal.

Jan. 12, 2015) (Mir I).

Shortly thereafter, the district court granted the defendant law firms motions to

dismiss Mir’s federal claims, without leave to amend, on two grounds: (1) the claims

were barred by the Noerr-Pennington doctrine2 because defendants’ litigation

activities were protected under the First Amendment and (2) the complaint otherwise

failed to state cognizable claims for relief. See Mir v. Greines, Martin, Stein &

Richland, No. 14-4132, 2015 WL 12746231, at *6-7, *8-14 (C.D. Cal. Feb. 19,

2015). Once again, the court declined to exercise supplemental jurisdiction over the

state-law claims. See id. at *15. Mir appealed to the Ninth Circuit Court of Appeals.

While Mir’s appeal was pending, in May 2015, he filed suit against I & S,

Westport, and Brown in the United States District Court for the District of Kansas.

That suit, which is the subject of this appeal, was also based on I & S’s, Westport’s,

2
E. R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961);
United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965).
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and Brown’s actions in obtaining and attempting to enforce the state-court judgment,

and Mir’s theory that defendants were engaged in a conspiracy to obtain a double

recovery of the judgments for attorneys’ fees in the state-court litigation. Although

Mir did not reassert a claim under § 1983, his claims were otherwise identical to

those asserted in Mir I, which was on appeal to the Ninth Circuit: (1) racial

discrimination under § 1981; (2) conspiracy to violate civil rights under §§ 1985 and

1986; (3) civil RICO claims under § 1964(c); and (4) various state-law claims. The

Kansas litigation was stayed pending the outcome of the appeal in Mir I.

In the meantime, in June 2015, Mir filed suit against I & S and the Frandzel

firm in California federal district court in which he asserted claims for violation of

the Fair Debt Collection Practices Act (“FDCPA”), intentional interference with

contractual rights under § 1981, and various state-law claims. The district court

granted defendants’ motions to dismiss the federal claims under the doctrine of res

judicata and declined to exercise supplemental jurisdiction over the state-law claims.

The court also found, for the second time, it was clear that Mir’s federal claims could

not be saved by amendment, dismissed them with prejudice to refiling, and declined

to exercise supplemental jurisdiction over the state-law claims. See Mir v. Frandzel,

Robin, Bloom, Csato, LC, No. 15-cv-04101, 2016 WL 4425715, at *1-3, *4-8 (C.D.

Cal. Aug. 16, 2016) (Mir II). Mir appealed to the Ninth Circuit.

In January 2017, the Ninth Circuit affirmed the California district court’s

decision in Mir I. Relevant here, the Ninth Circuit affirmed the court’s decision that:

(1) I & S was immune from liability under the Noerr-Pennington doctrine; (2) Mir

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failed to state plausible claims for relief against Westport; and (3) it lacked personal

jurisdiction over Brown. The Ninth Circuit also held that the court did not abuse its

discretion in dismissing Mir’s complaint without leave to amend. See Mir v. Greines,

Martin, Stein & Richland, 676 F. App’x 699, 700-01 (9th Cir. 2017). Several months

later, the Ninth Circuit also decided Mir II, which affirmed the dismissal of the

federal claims on the grounds of res judicata. Mir v. Frandzel, Robin, Bloom, Csato,

LC, 699 F. App’x 752 (9th Cir. 2017).

Not long after the California federal litigation was resolved, the stay was lifted

in the Kansas litigation and the district court ordered the parties to show cause why

Mir’s claims should not be dismissed based on the Ninth Circuit’s decisions in Mir I

and Mir II. I & S, Westport, and Brown argued for dismissal on several grounds,

including res judicata. The court found that Mir’s federal claims were barred by res

judicata and dismissed them with prejudice. Further, the court declined to exercise

supplemental jurisdiction over the state-law claims and dismissed those claims

without prejudice. Mir appeals the dismissal of his federal claims.

III. DISCUSSION

A. Standard of Review

“We review de novo the district court’s grant of . . . [a] motion to dismiss

on . . . claim preclusion grounds.” Campbell v. City of Spencer, 777 F.3d 1073, 1077

(10th Cir. 2014).

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 B. Legal Background

“The doctrine of res judicata, or claim preclusion, will prevent a party from

litigating a legal claim that was or could have been the subject of a previously issued

final judgment.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221,

1239 (10th Cir. 2017) (internal quotation marks omitted). “The principle underlying

the rule of claim preclusion is that a party who once has had a chance to litigate a

claim before an appropriate tribunal usually ought not have another chance to do so.”

Id. (internal quotation marks omitted). “To apply claim preclusion, three elements

must exist: (1) a final judgment on the merits in an earlier action; (2) an identity of

parties or privies in the two suits; and (3) an identity of the cause of action in both

suits.” Id. (brackets and internal quotation marks omitted). However, “even if these

three elements are satisfied, there is an exception to the application of claim

preclusion where the party resisting it did not have a full and fair opportunity to

litigate the claim in the prior action.” Id. (internal quotation marks omitted).

C. Analysis

Mir cannot relitigate his federal claims against I & S and Westport because the

three elements of res judicata are satisfied; specifically, there was a final judgment on

the same claims between the same parties in Mir I. Nonetheless, Mir maintains he

can proceed against Brown because he was dismissed for lack of jurisdiction and

there is no final judgment. He is mistaken.

“Generally, claim preclusion requires that the named parties in the first and

second suits be identical.” Id. at 1240. “Thus, even where a plaintiff has already

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sued one or more parties liable for a particular loss, the plaintiff ordinarily is entitled

to bring another suit against a new defendant . . . based on the same loss.” Id. “But

an exception to this rule applies when there is ‘privity’ between the defendant(s)

bound by the first suit and the new defendant(s) named in the second suit.” Id.

“[T]his court has addressed, and found, privity in a variety of corporate

contexts . . . [which include a] subsidiary and its ‘controlling’ parent . . . [and a]

corporation and its agent.” Id. at 1240-41. Here, Brown was an officer of Westport’s

parent company and he also acted as Westport’s agent in responding to Mir’s

subpoena duces tecum. As a result, there was privity between Westport and Brown,

and Mir’s federal claims against Brown are also barred by res judicata.

We also reject Mir’s further argument that he lacked a full and fair opportunity

to litigate new claims against I & S that allegedly arose after he filed Mir I in 2014;

namely, Mir maintains that following the California Court of Appeal’s decision in

January 2015, I & S continued to wrongly file liens and otherwise attempt to collect

the judgment, and in doing so, also violated the FDCPA. Mir’s new claims are

barred by res judicata for two reasons: (1) his claims concerning I & S’s debt-

collection activities, generally, were part of the same transaction that formed the

basis of his claims in Mir I and (2) his claim that I & S violated the FDCPA was

raised and resolved against him in Mir II.

This court applies the transactional test to determine whether the new claims

could have been raised in Mir I. See Hatch v. Boulder Town Council, 471 F.3d 1142,

1149 (10th Cir. 2006). “The transactional approach provides that a claim arising out

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the same transaction, or series of connected transactions as a previous suit, which

concluded in a valid and final judgment, will be precluded.” Id. (internal quotation

marks omitted). “What constitutes the same transaction or series of transactions is to

be determined pragmatically, giving weight to such considerations as whether the

facts are related in time, space, origin, or motivation, [and] whether they form a

convenient trial unit. . . .” Id. (internal quotation marks omitted).

To be sure, claims that “aris[e] after the complaint has been filed, but before

judgment, may be excluded from this transactional nexus, and thus be litigated in a

subsequent action.” Id. at 1150. “This does not mean, however, that a plaintiff can

avoid supplementing his complaint with facts that are part of the same transaction

asserted in the complaint. . . .” Id. Rather, “[u]nder the transactional test, a new

action will be permitted only where it raises new and independent claims, not part of

the previous transaction, based on the new facts.” Id.

Here, the district court found, and we agree, that Mir “has not established any

new claims independent of and lacking any transactional nexus with the claims

adjudicated in [Mir I].” R., Vol. 4 at 743. We further agree that “[e]ven if [Mir] has

raised new and independent claims . . . they still would be precluded [because] ‘the

object of [Mir I] was to establish the legality of the continuing conduct into the

future.’” Id. (quoting Hatch, 471 F.3d at 1151).

We need not dwell on Mir’s argument regarding his FDCPA claim. Mir raised

the identical claim against I & S in Mir II, which was dismissed on the grounds of res

judicata and affirmed by the Ninth Circuit. As a result, we agree with the district

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court that Mir was precluded from bringing the FDCPA claim in the Kansas

litigation. See id. at 778-79.

III. CONCLUSION

The judgment of the district court is affirmed. We deny defendants’ motions

to dismiss this appeal as untimely filed.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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