United States Court of Appeals
For the First Circuit
No. 99-1230
PETER A. BOATENG,
Plaintiff, Appellant,
v.
INTERAMERICAN UNIVERSITY, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Marybeth Holland for appellant.
Alberto G. Estrella, with whom William Estrella Law Offices,
PSC was on brief, for appellee.
April 18, 2000
SELYA, Circuit Judge. This litigation crashes on the
shoals of res judicata. Because the district court correctly
apprehended this reality, we affirm its entry of judgment in the
defendant's favor.
I. BACKGROUND
The relevant facts are undisputed. Dr. Peter Boateng,
a black man from Ghana, began teaching accounting at the San
Germán campus of InterAmerican University (the University) in
1988. Seven years later, the University denied him tenure but
extended his probationary term as a professor for an additional
year (during which time his candidacy was to be reevaluated).
After unsuccessfully requesting reconsideration of the tenure
denial, Boateng filed suit in the Puerto Rico Court of First
Instance (Suit No. 1) on July 31, 1995. In his complaint, he
invoked Puerto Rico law and alleged breach of contract and
discrimination on the basis of race and nationality.
On March 16, 1996, Boateng amended his complaint to add
an allegation that the University had retaliated against him by
investigating charges that he had plagiarized some of his course
materials. Following the completion of discovery and a six-day
bench trial, the court entered a judgment in the University's
favor. See Boateng v. InterAmerican Univ., No. I PE95-0122
(P.R. Super. Mar. 30, 1998). Boateng's efforts to undo the
-3-
judgment — including a motion for reconsideration, an abortive
appeal to the Puerto Rico Circuit Court of Appeals, and a
petition for certiorari to the Puerto Rico Supreme Court — were
uniformly unavailing.
Whilst prosecuting Suit No. 1, Boateng plied a parallel
course. On January 19, 1996, after what Boateng apparently
considered to be an unfavorable change of venue in Suit No. 1,
he filed a second suit in the United States District Court for
the District of Puerto Rico (Suit No. 2). The only relevant
difference between the amended complaint in Suit No. 1 and the
complaint in Suit No. 2 was that the latter included a statement
of claim under Title VII, 42 U.S.C. §§ 2000e to e-17.1 On April
8, 1996, the University moved for dismissal of Suit No. 2 or, in
the alternative, a stay. It attached to its motion an English
translation of the complaint in Suit No. 1. The district court
denied this motion.
The University filed another motion to dismiss Suit No.
2 on May 6, 1998, this time arguing that the judgment in Suit
1Boateng failed to obtain tenure at the end of the 1995-96
probationary period. His employment with the University was
terminated on July 31, 1997 (when a final, nonrenewable one-year
contract expired). He thereafter attempted to amend his
complaint in Suit No. 2 to include allegations of discrimination
in respect to these events. The district court denied the
motion. On appeal, Boateng does not assign error to that
ruling.
-4-
No. 1 (a copy of which was attached to the motion) barred
further proceedings. In response, Boateng asserted that the
judgment was not final because, at that moment, the thirty-day
appeal period (which he claimed had been tolled by the pendency
of his motion for reconsideration) had not run. This rebuttal
argument collapsed on June 30, when the Puerto Rico Circuit
Court of Appeals dismissed as untimely Boateng's appeal from the
judgment entered in Suit No. 1.
Boateng's fallback position was that his federal court
case dealt with "matters different from those of the state court
case (Title VII)." The district court rejected this argument
and entered judgment in favor of the University. See Boateng v.
InterAmerican Univ., 36 F. Supp. 2d 60 (D.P.R. 1998). This
appeal ensued.
II. ANALYSIS
We review de novo orders granting summary judgment.
See Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990).
In undertaking such review here, we bifurcate our analysis,
first addressing a procedural point and then discussing the
applicability of res judicata in the circumstances of this case.
A. Conversion.
Boateng posits that the court below effectively
converted the University's second motion to dismiss into a
-5-
motion for summary judgment, expressly relying upon the
complaint and judgment in Suit No. 1 in reaching its decision.
He assigns error, contending that the court failed to furnish
him advance notice and an opportunity to present opposing
evidence before venturing outside the four corners of the
pleadings in Suit No. 2. This contention derives from Fed. R.
Civ. P. 12(b), which provides that:
If, on a [Rule 12(b)(6)] motion . . . ,
matters outside the pleading are presented
to and not excluded by the court, the motion
shall be treated as one for summary judgment
and disposed of as provided in Rule 56, and
all parties shall be given reasonable
opportunity to present all material made
pertinent to such a motion by Rule 56.
As a preliminary matter, we question whether this case
actually involved conversion. After all, a court may look to
matters of public record in deciding a Rule 12(b)(6) motion
without converting the motion into one for summary judgment.
See Watterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993). And a
court ordinarily may treat documents from prior state court
adjudications as public records. See Henson v. CSC Credit
Servs., 29 F.3d 280, 284 (7th Cir. 1994) (collecting cases). In
light of these principles, it is at least arguable that this
case does not involve conversion at all.
Having raised this point, we conclude that we need not
decide it definitively. The University has not challenged the
-6-
fact of conversion, and we therefore assume, for argument's
sake, that the court converted the motion. On that assumption,
we consider Boateng's procedural argument.
We have interpreted Rule 12(b) as requiring some type
of notice as a condition precedent to a court's conversion of a
motion to dismiss into one for summary judgment. See, e.g.,
Collier v. City of Chicopee, 158 F.3d 601, 603 (1st Cir. 1998),
cert. denied, 526 U.S. 1023 (1999). Withal, "this circuit does
not mechanistically enforce the requirement of express notice of
a district court's intention to convert a Rule 12(b)(6) motion
into a motion for summary judgment. Instead, we treat 'any
error in failing to give express notice as harmless when the
opponent has received the affidavit and materials, has had an
opportunity to respond to them, and has not controverted their
accuracy.'" Chaparro-Febus v. International Longshoremen Ass'n,
Local 1575, 983 F.2d 325, 332 (1st Cir. 1992) (quoting Moody v.
Town of Weymouth, 805 F.2d 30, 31 (1st Cir. 1986) (per curiam));
see also Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83
(1st Cir. 1997) (explaining that "[t]he proper approach to
conversion under [Rule 12(b)] is functional rather than
mechanical"). Viewed against this mise en scène, Boateng's
position is untenable.
-7-
The documents on which the district court relied were
familiar to Boateng. The University submitted copies of those
documents in the course of litigating Suit No. 2, and in all
events, Boateng obviously possessed copies of both the complaint
he himself had filed in Suit No. 1 and the judgment terminating
that action. The motion to dismiss explicitly mentioned the
complaint and the judgment, and rendered the court's reliance on
those documents readily foreseeable. Furthermore, some seven
months elapsed between the service of the University's second
motion to dismiss and the district court's decision. During
this interval, Boateng filed two responsive pleadings, one of
which included a copy of a motion for reconsideration in Suit
No. 1 (thus impliedly inviting the court to consider the record
in that case). The short of it, then, is that Boateng was
familiar with the proffered documents, had ample opportunity to
respond to them, and, in fact, did so. By the same token, he
had a full and fair chance to contest the accuracy of the
proffered documents, but did not do so.2
2In his brief, Boateng hints that, had he been given
explicit notice of the court's intent to convert the motion, he
would have submitted additional evidence in support of his
position on the res judicata defense. When pressed at oral
argument to elaborate on that possibility, however, Boateng's
counsel was unable to identify any such evidence.
-8-
That ends the matter. No more was exigible to effect
substantial compliance with the applicable notice requirement.
See Collier, 158 F.3d at 603 (explaining that "the notice
requirement [anent Rule 12(b)] can be satisfied when a party
receives constructive notice that the court has been afforded
the option of conversion — a phenomenon that occurs when, for
example, the movant attaches to his motion, and relies on,
materials dehors the pleadings"). If failing to announce the
conversion entailed error at all — a matter on which we need not
opine — the error was harmless. See Chaparro-Febus, 983 F.2d at
332.
B. Res Judicata.
We turn now to the res judicata issue. In determining
the preclusive effect of a state court judgment in federal court
— and Puerto Rico is, for this purpose, the functional
equivalent of a state, see Cruz v. Melecio, 204 F.3d 14, 18 n.2
(1st Cir. 2000) — the question is whether courts in the
rendering state would ascribe preclusive effect to the judgment.
See 28 U.S.C. § 1738; see also Kremer v. Chemical Constr. Corp.,
456 U.S. 461, 466 (1982). For a judgment to have preclusive
effect in a subsequent action, Puerto Rico law requires "the
most perfect identity between the things, causes, and persons of
the litigants, and their capacity as such." P.R. Laws Ann. tit.
-9-
31, § 3343. Boateng concedes that the two suits involve
identical parties, but asseverates that there is no perfect
identity of "things" or "causes" between them. This
asseveration cannot withstand scrutiny.
Puerto Rico courts do not interpret the phrase "perfect
identity" literally. See Cruz, 204 F.3d at 19; Futura Dev.
Corp. v. Centex Corp., 761 F.2d 33, 43-45 (1st Cir. 1985). For
res judicata purposes, "[t]he thing corresponds basically to the
object or matter over which the action is exercised." Lausell
Marxuach v. Díaz de Yáñez, 3 P.R. Offic. Trans. 742, 745 (1975).
The test for identity of "things" is whether a decision in the
second action may contradict the prior adjudication. See A & P
Gen. Contractors, Inc. v. Asociación Caná, 10 P.R. Offic. Trans.
987, 998 (1981). Similarly, "cause" refers to the main ground
or origin of the action. See id. It thus becomes apparent that
Puerto Rico, though a civil law jurisdiction, follows the
general contours of the transactional approach in its res
judicata jurisprudence. See Restatement (Second) of Judgments
§ 24(1) (1982) (explaining that a valid and final judgment
extinguishes "all rights of the plaintiff to remedies against
the defendant with respect to all or any part of the
transaction, or series of connected transactions, out of which
the action arose").
-10-
In this instance, the commonwealth court, after
considering Boateng's claims arising from the denial of tenure
and the plagiarism investigation, expressly held that "the
University fully complied with its contractual responsibilities
towards . . . Boateng" and that "the University did not
discriminate against . . . Boateng due to his race, color or
nationality." Boateng v. InterAmerican Univ., No. I PE95-0122
(P.R. Super. Mar. 30, 1998). The court also specifically found
that Boateng had committed plagiarism. See id. The present
action derives from the same nucleus of operative facts, and a
ruling in Boateng's favor obviously would contradict these
earlier determinations. We conclude, therefore, that the
requisite identity of "things" and "causes" is present.
Boateng espouses a contrary view, relying heavily on
the fact that Suit No. 2 included a Title VII claim whereas Suit
No. 1 did not. This reliance is mislaid. As a general matter,
a difference in the legal theories asserted in two suits that
arise from the same transaction (or set of transactions) does
not undermine the identity of causes between them. See Kale v.
Combined Ins. Co., 924 F.2d 1161, 1166 (1st Cir. 1991).
Specifically, under Puerto Rico law, such an "argument mistakes
the legal cause of action for the factual 'cause' contemplated
by Puerto Rico's preclusion statute: preclusion requires an
-11-
identity of the latter, not the former." Baez-Cruz v.
Municipality of Comerio, 140 F.3d 24, 30 (1st Cir. 1998). As
the Puerto Rico Supreme Court has explained, "cause" is "'the
principal ground, the origin of the actions or exceptions raised
and decided, and it must not be mistaken for the means of proof
nor for the legal grounds of the claims adduced by the
parties.'" Lausell Marxuach, 3 P.R. Offic. Trans. at 746
(quoting VIII-2 Jose Maria Manresa, Comentarios al Código Civil
Español 301 (6th ed. 1967)). Accordingly, Boateng did not have
a right to bring separate and successive suits on different
legal theories arising out of a single nucleus of operative
facts.
To be sure, in Puerto Rico, res judicata operates to
preclude only claims that were or could have been raised in a
previous suit.3 See Commonwealth v. Sociedad Civil Agricola e
Industrial, 4 P.R. Offic. Trans. 546, 554 (1975) (per curiam);
Mercado Riera v. Mercado Riera, 100 P.R.R. 939, 949 (1972).
Endeavoring to wrap himself in this exception, Boateng avers
that he could not have brought a Title VII claim when he
3
The same rule obtains in other jurisdictions that follow
the transactional approach. See, e.g., Massachusetts Sch. of
Law at Andover, Inc. v. American Bar Ass'n, 142 F.3d 26, 38 (1st
Cir. 1998) (applying federal law); Fiumara v. Fireman's Fund
Ins. Cos., 746 F.2d 87, 91 (1st Cir. 1984) (applying New
Hampshire law).
-12-
commenced Suit No. 1 because he did not receive a right-to-sue
letter from the Equal Employment Opportunity Commission (EEOC)
until October 24, 1995 (nearly three months after he commenced
Suit No. 1). This argument fails for two reasons.
For one thing, Boateng did not advance this point in
the lower court. It is, therefore, procedurally defaulted. "If
any principle is settled in this circuit, it is that, absent the
most extraordinary circumstances, legal theories not raised
squarely in the lower court cannot be broached for the first
time on appeal." Teamsters Union, Local No. 59 v. Superline
Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992). Because the
record here reflects no sufficiently excusatory circumstances,
Boateng has forfeited the right to hawk the unavailability of
the right-to-sue letter in this court.
For another thing, on facts less defendant-friendly
than those of this case, several courts have held Title VII
claims to be precluded by a prior adjudication even though a
right-to-sue letter had not been obtained until after final
judgment had entered in the first action. See Heyliger v. State
Univ. & Community College Sys., 126 F.3d 849, 854-56 (6th Cir.
1997); Herrmann v. Cencom Cable Assocs., 999 F.2d 223, 225 (7th
Cir. 1993); Woods v. Dunlop Tire Corp., 972 F.2d 36 (2d Cir.
1992). A fortiori, there is no principled basis for reaching a
-13-
different result where, as here, the plaintiff obtained
permission to sue from the EEOC while his first suit was still
pending.
This conclusion seems particularly well justified
because Boateng largely controlled the timing of the relevant
events (for example, he could have sued a few months later).
More than two years elapsed between his receipt of the right-to-
sue letter and the entry of final judgment in Suit No. 1.
During that interval, he could easily have amended his complaint
in Suit No. 1 to include the Title VII claim: state courts have
concurrent jurisdiction over Title VII claims, see Yellow
Freight Sys., Inc. v. Donnelly, 494 U.S. 820 (1990), and leave
to amend pleadings in the Puerto Rico courts is "freely given
when justice so requires," P.R. R. Civ. P. 13.1. Indeed,
Boateng successfully amended his complaint in Suit No. 1 shortly
after receiving the right-to-sue letter, but elected not to
mention Title VII. He has no one to blame but himself for
failing to present the Title VII claim to the commonwealth
court.
Boateng also asserts that the complaint in Suit No. 2
alleges acts of discrimination and retaliation that were not
before the commonwealth court in Suit No. 1, thus dissipating
the requisite identity of "things" and "causes." This assertion
-14-
is baseless. We have compared the pertinent materials from the
two cases. The sole act of retaliation properly pleaded in Suit
No. 2 concerned the plagiarism investigation — an allegation
that was covered by Boateng's amended complaint in Suit No. 1
and discussed at length by the commonwealth court in its final
judgment. See Boateng v. InterAmerican Univ., No. I PE95-0122
(P.R. Super. Mar. 30, 1998) (finding specifically that Boateng
had committed plagiarism). Boateng may not have been obligated
to bring the retaliation claim at the same time as his other
claims, see Pleming v. Universal-Rundle Corp., 142 F.3d 1354
(11th Cir. 1998); Herrmann, 999 F.2d at 227, but, having done
so, he cannot escape the preclusive effect of the commonwealth
court judgment as to this claim.
We have one more bridge to cross. Noting that Puerto
Rico courts ascribe preclusive effect only to judgments that are
final and unappealable, see Cruz, 204 F.3d at 20-21, Boateng
maintains that his appeal from the commonwealth court judgment
was still pending when the federal district court ruled (and
that, therefore, the ruling cannot stand). This argument is
unpersuasive. Even if Boateng's facts are correct — which seems
unlikely considering that the Puerto Rico intermediate appellate
court dismissed his appeal as untimely some five months before
the federal district court acted — it is undisputed that the
-15-
Puerto Rico Supreme Court has now denied certiorari, leaving
Boateng with no other recourse in the commonwealth courts.
Thus, the judgment in Suit No. 1 is now indisputably final and
unappealable. We will not engage in the empty gesture of
remanding this case for entry of a new order reaching the same
result. See Aoude v. Mobil Oil Corp., 862 F.2d 890, 895 (1st
Cir. 1988); cf. Equitable Life Assur. Soc'y v. Porter-Englehart,
867 F.2d 79, 84 n.3 (1st Cir. 1989) (refusing to engage in "an
elaborate game of ring-around-the-rosy" whereby the parties
would end up exactly where they had begun).
III. CONCLUSION
To recapitulate: (1) the district court's failure to
provide explicit notice that it planned to convert the motion to
dismiss to one for summary judgment, if error at all, was
harmless under the circumstances because Boateng received the
extrinsic materials relied upon by the district court, had ample
opportunity to respond to them, and did not question their
accuracy; and (2) the fact that the commonwealth court's
judgment in a suit involving identical parties, causes, and
things is now final and unappealable confirms the district
court's founded conclusion that res judicata bars the present
action.
-16-
We need go no further. Boateng had a full bite of the
apple — and the choice of the bite was his. He is not entitled
to another nibble.
Affirmed.
-17-
Boateng v. InterAmerican University, Inc.
Court: Court of Appeals for the First Circuit
Date filed: 2000-04-18
Citations: 210 F.3d 56
Copy Citations