F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 13 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
PATRICIA STYSKAL,
Plaintiff-Appellant,
v. No. 03-1179
WELD COUNTY BOARD OF
COUNTY COMMISSIONERS; ED
JORDAN, Sheriff, in his official
capacity,
Defendants,
and
MIKE WITMAN; JOHN KIELIAN,
DALE BEVERLY, JOHN AND JANE
DOES 1-20, whose true names are
presently unknown,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 02-K-81)
Submitted on the briefs:
John W. McKendree, Law Offices of John W. McKendree, Denver, Colorado, for
Plaintiff-Appellant.
Trevor J. MacLennan of Ramirez & MacLennan, Wheat Ridge, Colorado,
Kimberly B. Schutt of Wick Campbell Bramer Ukasik & Trautwein, LLC, Fort
Collins, Colorado, Jeffrey J. Richards and Michael S. Simpson of Anstine Hill
Richards & Simpson, Denver, Colorado, for Defendants-Appellees.
Before EBEL , HENRY , and HARTZ , Circuit Judges.
HARTZ , Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Plaintiff Patricia Styskal appeals the district court’s dismissal with
prejudice of her claims against Appellees Mike Witman, John Kielian, and Dale
Beverly. She contends that because the district court held that it lacked
supplemental jurisdiction under 28 U.S.C. § 1367 to hear her state-law claims
against Appellees, it should have dismissed those claims without prejudice to
enable her to refile them in state court. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
Plaintiff filed suit in the United States District Court for the District of
Colorado against Appellees, 20 John and Jane Does, and two other named
defendants, the Weld County Board of Commissioners (the Board) and Weld
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County Sheriff Ed Jordan. According to her second amended complaint: In
November 1994 Plaintiff purchased property in Weld County, Colorado, that
included two residential buildings and a detached garage. Appellees are
Plaintiff’s neighbors, and hold an easement for an irrigation ditch across her
property. They engaged in various conduct constituting a trespass under Colorado
law, negligently damaged her property, and conspired against her. The sheriff’s
department refused to respond and protect her when she complained about
Appellees’ behavior. The Board improperly determined that the buildings on her
property could not be simultaneously used as residences under the county zoning
ordinance and building codes, and informed her that she must “completely revamp
a bathroom in the structure in which [she] was forced to render uninhabitable,”
Aplt. App. at 111 ¶ 46.
Plaintiff sued the Board and Sheriff Jordan under 42 U.S.C. § 1983,
contending that the Board’s enforcement of the county zoning ordinance
constituted a taking in violation of the Fourteenth Amendment, and that the Board
and Sheriff Jordan discriminated against her, in violation of her Fourteenth
Amendment right to equal protection of the laws, because she is an unmarried
woman. She also alleged state-law claims against Appellees for trespass,
negligence, and conspiracy, asserting that “those claims are substantially part of
the same case and/or controversy” as the federal questions presented in her
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complaint. Aplt. App. at 105 ¶ 8. All defendants moved to dismiss. Appellees
argued that the district court lacked supplemental jurisdiction over Plaintiff’s
state-law claims against them.
On November 26, 2002, the district court entered an order ruling on the
motions to dismiss. First, the court agreed with Plaintiff’s concession that her
takings claim against the Board should be dismissed without prejudice. Second,
the court granted motions by the Board and Sheriff Jordan to dismiss Plaintiff’s
equal protection claims, but gave Plaintiff until December 16, 2002, to amend her
complaint or face dismissal with prejudice. Third, the court dismissed with
prejudice Plaintiff’s state-law claims against Appellees, finding that it lacked
supplemental jurisdiction to hear these claims “because they are not sufficiently
related to the § 1983 claims to form part of the same case or controversy as the[]
federal claims.” Id. at 120. Plaintiff failed to amend her complaint to cure
deficiencies in her equal protection claims against the Board and Sheriff Jordan;
and on January 7, 2003, the district court dismissed with prejudice those claims
“and her Complaint as a whole.” Id. at 123.
On April 10, 2003, Plaintiff moved the district court to enter judgment in
the action to enable her to appeal its decision. The district court granted
Plaintiff’s motion and entered judgment on April 14, 2003. Plaintiff timely
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appealed to this court. She challenges the dismissal of her claims against
Appellees, but not the dismissal of those against the Board and Sheriff Jordan.
Plaintiff’s sole argument on appeal is that because the district court
declined to exercise supplemental jurisdiction over her state-law claims against
Appellees, its dismissal of those claims should not have been with prejudice.
According to Plaintiff, the district court “should have instead dismissed them
without prejudice so that they could be pursued in state court.” Aplt. Br. at 9.
Appellees counter that the district court could have properly dismissed Plaintiff’s
state-law claims on the merits, and that even if it erred by dismissing these claims
with prejudice, Plaintiff failed to object or to move to amend the judgment under
Federal Rule of Civil Procedure 60. We need not consider Appellees’ arguments,
however, because Plaintiff’s appeal is based on a misconception of the meaning
of dismissal “with prejudice.”
Plaintiff could find substantial support for her contention that a dismissal
for lack of jurisdiction should be “without prejudice.” See Gold v. United Food
& Commercial Workers, 159 F.3d 1307, 1311 (10th Cir. 1998); Textile
Productions, Inc. v. Mead Corp., 134 F.3d 1481, 1486 (Fed. Cir. 1998); Crotwell
v. Hockman-Lewis Ltd., 734 F.2d 767, 769 (11th Cir. 1984). But see Steele v.
Federal Bureau of Prisons, 355 F.3d 1204, 1213-14 (10th Cir. 2003) (affirming
dismissal with prejudice of Federal Tort Claims Act claim for lack of
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jurisdiction). The premise underlying these decisions is that a dismissal of a
claim with prejudice necessarily has claim-preclusive effects in other
jurisdictions. See Gold, 159 F.3d at 1311; 9 Wright & Miller, Federal Practice &
Procedure § 2373 at 396-98 (2d ed. 1995).
That premise, however, was recently rejected by the United States Supreme
Court. In Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001), a
federal district court in California exercising diversity jurisdiction had dismissed
the plaintiff’s claim “on the merits and with prejudice” on statute-of-limitations
grounds. The question before the Court was whether the plaintiff’s identical
claim filed in Maryland state court was barred by that dismissal.
The defendant, arguing claim preclusion, relied on Federal Rule of Civil
Procedure 41(b), which states:
Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to
prosecute or to comply with these rules or any order of court, a
defendant may move for dismissal of an action or of any claim
against the defendant. Unless the court in its order for dismissal
otherwise specifies, a dismissal under this subdivision and any
dismissal not provided for in this rule, other than a dismissal for lack
of jurisdiction, for improper venue, or for failure to join a party
under Rule 19, operates as an adjudication upon the merits.
The defendant pointed out that the dismissal in the California federal court
“operate[d] as an adjudication upon the merits” because the court’s order did not
“otherwise specif[y]” and was not a dismissal “for lack of jurisdiction, for
improper venue, or for failure to join a party.” Semtek, 531 U.S. at 501.
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The Supreme Court accepted the defendant’s characterization of the federal
court dismissal but rejected the proposition that “all judgments denominated ‘on
the merits’ are entitled to claim-preclusive effect.” Id. Acknowledging that
“[t]he original connotation of an ‘on the merits’ adjudication is one that actually
‘passes directly on the substance of a particular claim,’ id. at 501-02 (quoting
Restatement (Second) of Judgments § 19, cmt. a at 161 (1982) (brackets
omitted)), the Court said that nevertheless “over the years the meaning of the term
‘judgment on the merits’ ‘has gradually undergone change,’” id. at 502 (quoting
R. Marcus, M. Redish, & E. Sherman, Civil Procedure: A Modern Approach
1140-41 (3d ed. 2000).) According to the Court, the term “has come to be applied
to some judgments . . . that do not pass upon the substantive merits of a claim, id.
at 502, and “it is no longer true that a judgment ‘on the merits’ is necessarily a
judgment entitled to claim-preclusive effect,” id. at 503. The court concluded
that the phrase “adjudication upon the merits” in Rule 41(b) does not mean that
the judgment must result in claim preclusion. Id. at 503-05.
The Court decided that “adjudication upon the merits” is simply “the
opposite of a ‘dismissal without prejudice.’” Id. at 505. And according to the
Court, “The primary meaning of ‘dismissal without prejudice’ . . . is dismissal
without barring the plaintiff from returning later, to the same court, with the same
underlying claim.” Id. As the Court summed up:
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We think, then, that the effect of the ‘adjudication upon the
merits’ default provision of Rule 41(b)--and, presumably, of the
explicit order in the present case that used the language of that
default provision--is simply that, unlike a dismissal ‘without
prejudice,’ the dismissal in the present case barred refiling in the
United States District Court for the Central District of California.
That is undoubtedly a necessary condition, but it is not a sufficient
one, for claim-preclusive effect in other courts.
Id. at 506. From this statement we may fairly “infer that when a [federal] court
rules that a dismissal is with prejudice, it is saying only that the claim cannot be
refiled in that court.” 355 F.3d at 1215 (Hartz, J., concurring) (internal quotation
marks omitted).
Thus, the dismissal with prejudice by the district court in this case does not
necessarily mean anything more than that Plaintiff cannot refile her claim in the
United States District Court for the District of Colorado. Whether she is barred
from filing her claim in Colorado state court is a matter of claim-preclusion law
that is not determined solely by how the federal court dismissal is styled. 1 As a
result, the relief sought by Plaintiff—restyling the federal court dismissal as
1
For example, if the federal court’s ruling is based on the substance of the
claim (what has often been termed an “adjudication on the merits,” see Semtek,
531 U.S. at 501-05 (but holding that this is not the meaning of the phrase in Fed.
R. Civ. P. 41(b))), the doctrine of claim preclusion would ordinarily prevent
further proceedings on the claim in a later state action. But if the federal court’s
dismissal is based on a procedural ground, the federal ruling is unlikely to have
any preclusive effect in state court, even though the dismissal may bar the
plaintiff from returning to federal court. See Steele, 355 F.3d at 1215 (Hartz, J.,
concurring).
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“without prejudice”—is beside the point. The state court’s decision regarding
whether claim preclusion prevents a state lawsuit will depend upon the basis of
the federal court’s dismissal, not the nomenclature employed by the federal court
to describe the dismissal.
In sum, the district court’s judgment does not necessarily preclude Plaintiff
from refiling her state-law claims against Appellees in state court. Although it
does preclude her from refiling them in federal court, we need not concern
ourselves with whether the district court erred in that regard, because Plaintiff
does not argue the point. Plaintiff’s sole concern on this appeal is that the district
court’s denomination of the dismissal as ‘with prejudice” necessarily bars her
from refiling her state-law claims in state court. Because this concern is ill-
founded, we AFFIRM the judgment below.
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