Barreto-Rosa v. Varona-Mendez

          United States Court of Appeals
                       For the First Circuit


No. 05-2749

              MARIA DE LOS ANGELES BARRETO-ROSA et al.,

                       Plaintiffs, Appellants,

                                 v.

                    ALEIDA VARONA-MENDEZ et al.,

                       Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF PUERTO RICO

         [Hon. DANIEL R. DOMINGUEZ, U.S. District Judge]


                               Before

                        Selya, Circuit Judge,
                    Siler,* Senior Circuit Judge,
                     and Howard, Circuit Judge.


     Marie Elsie Lopez-Adames, and Gonzalez-Lopez & Lopez-Adames,
on brief, for appellant.
     Nerylu Fiueroa Estasie, and Sanchez Betances, Sifre, Munoz
Noya & Rivera, P.S.C, and Pedro J. Varela on brief, for appellees.



                          December 1, 2006


*Of the Sixth Circuit, sitting by designation.
     SILER, Senior Circuit Judge.        Plaintiff Maria de los Angeles

Barreto-Rosa appeals the district court’s summary judgment in her

42 U.S.C. § 1983 claim against Aledia Varona-Mendez, Yolanda Zayas,

and the Administration for Child Support Enforcement (collectively,

“Defendants”). We AFFIRM because Barreto-Rosa’s claim is barred by

the doctrine of res judicata.

                                   I.

     In February 2002, Barreto-Rosa, an Administrative Judge in the

Administration for Child Support Enforcement (“ASUME”), filed an

injunction   petition   in   the   Court   of   First   Instance   of   the

Commonwealth of Puerto Rico requesting relief from an order that

would transfer her to a distant ASUME office. Barreto-Rosa’s claim

was dismissed in July 2002, but she appealed to the Puerto Rico

Circuit Court of Appeals.

     In October 2002, while her appeal was pending, Barreto-Rosa

filed this § 1983 suit in the United States District Court for the

District of Puerto Rico, alleging various violations of her civil

rights based on her political affiliation with the New Progressive

Party.   In December 2002, Defendants filed a motion for summary

judgment in lieu of an answer, arguing that res judicata barred her

§ 1983 claim.    In September 2003, the district court issued an

Opinion and Order abstaining from hearing the case at that time

based on Colorado River Water Conservation Dist. v. United States,




                                   -2-
424 U.S. 800 (1976).1                  The district court also found that res

judicata could not yet be applied because “while the same litigants

are involved and essentially the same issues are discussed . . .

[i]n       the   case    at     bar,   there    i[s]   no   ‘final   and    appealable’

decision, since the judgment of the Court of First Instance was

appealed . . . and is still pending.”

       In November 2003, the Circuit Court of Appeals of Puerto Rico

vacated the dismissal and remanded Barreto-Rosa’s equitable claims

to the Court of First Instance for an evidentiary hearing.                            In

October 2004, Barreto-Rosa requested that the Court of First

Instance dismiss these claims with prejudice because they were moot

and adequate redress was pending in federal court.2                        This request

was timely granted.              In December 2004, Defendants filed a second

motion for summary judgment based on res judicata, arguing that the

Court of First Instance’s dismissal with prejudice of Barreto-

Rosa’s claims was a final and unappealable judgment that precluded

Barreto-Rosa’s § 1983 claim.                   In June 2005, the district court

referred         the    issue    to    a   magistrate   judge   for    a    Report   and

Recommendation (“Magistrate’s Report”).                     The Magistrate’s Report


       1
      The district court reasoned that abstention was proper in
order to “avoid duplicative litigation and because the local court
case may decide the outcome of the instant case.”
       2
      The minutes from the Court of First Instance state that “the
plaintiff desists with prejudice of its claim exclusively of an
injunction since due to the passing of time it has become moot. It
also informs the Court that the tort action is filed in the Federal
Court.”

                                               -3-
later       recommended   denial   of   Defendants’   motion       for   summary

judgment,      finding    that   Barreto-Rosa’s   claims    were    within   the

exception of Calderon-Rosado v. Gen. Elec. Circuit Breakers, 805

F.2d 1085, 1087 (1st Cir. 1986).3

     The district court disagreed with the Magistrate’s Report,

finding that Barreto-Rosa’s claim did not fit within the Calderon-

Rosado exception because the Defendants “expressly objected [to]

plaintiff’s splitting of claims between state and this federal

court[] from the very beginning of the case.”4             The district court

granted Defendants’ motion for summary judgment in September 2005.5

     Barreto-Rosa now appeals the district court’s summary judgment

termination of her § 1983 claim.

                                        II.

     This court reviews a grant of summary judgment de novo.

Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006).                  All

facts and reasonable inferences are construed in a light most


     3
      The Calderon-Rosado exception, discussed in detail infra, is
a waiver exception to res judicata providing that if the parties
agree or a defendant implicitly assents to the splitting of a
plaintiff’s claims, the defense of res judicata is waived.
     4
      The district court also noted that it had alerted Barreto-
Rosa to the possibility of the res judicata bar in its September
2003 Opinion and Order.       (“Plaintiff’s failure to file all
available claims that could have been plead in the state of federal
forum, caused an unnecessary splitting of the actions, and is
subject to the ‘final and unappealable’ decision of the local
court.”).
        5
      The district court entered an Amended Opinion and Order in
October 2005.

                                        -4-
favorable to the nonmoving party.     DePoutot v. Raffaelly, 424 F.3d

112, 117 (1st Cir. 2005).   “The mere existence of a scintilla of

evidence” in favor of the nonmoving party is insufficient to defeat

summary judgment.   Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986).

                               III.

     Federal courts are required to give full faith and credit to

a final judgment issued by a court of the Commonwealth of Puerto

Rico.    See Allen v. McMurry, 449 U.S. 90, 95-96 (1980) (finding

that federal courts generally accord full faith and credit to state

court judgments); Muniz Cortes v. Intermedics, Inc., 229 F.3d 12,

14 (1st Cir. 2000); see also 28 U.S.C. § 1738 (providing that

records and judicial proceedings of every court within the United

States, Territories and Possessions shall have the same full faith

and credit that they have by law in the State, Territory or

Possession in which they are taken).6     Therefore, Puerto Rico law

dictates the preclusive effect of such a judgment.           Cruz v.

Melecio, 204 F.3d 14, 18 (1st Cir. 2000).     Under Puerto Rico law,

res judicata and collateral estoppel preclude the relitigation of

claims and issues that were, or could have been, brought in a


     6
      Section 1738, although not literally applicable to Puerto
Rico, applies to judgments of the Puerto Rico courts by virtue of
the provisions of 48 U.S.C. § 734 (stating that, unless otherwise
specified, federal statutes applicable to states apply to Puerto
Rico). See Baez-Cruz v. Municipality of Comerio, 140 F.3d 24, 28
n.1 (1st Cir. 1998).

                                -5-
previous action for which judgment has been rendered.7   Baez-Cruz,

140 F.3d at 28 n.1.   Puerto Rico’s preclusion doctrine provides:

     In order for that the presumption of res adjudicata be
     valid in another suit, it is necessary that, between the
     case decided by the sentence and that in which the same
     is invoked, be the most perfect identity between the
     things, causes and person of the litigants, and their
     capacity as such.

31 P.R. Laws Ann. §3343.

     Although the statute only mentions res judicata, or claim

preclusion, it also permits collateral estoppel by judgment, or

issue preclusion. See Texaco Puerto Rico, Inc. v. Medina, 834 F.2d

242, 245-46 (1st Cir. 1987) (citing A & P Gen. Contractors v.

Associacion Cana, Inc., 10 P.R. Offic. Trans. 987, 995-96 (1981)).

Puerto Rico law requires a prior judgment on the merits that is

“final and unappealable” for res judicata to apply.        Cruz v.

Melecio, 204 F.3d 14, 20-21 (1st Cir. 2000). A voluntary dismissal

with prejudice is considered a “final and unappealable” judgment

under Puerto Rico Law.     Medina v. Chase Manhattan Bank, 737 F.2d

140, 142 (1st Cir. 1984).

                                 A.

     Calderon-Rosado stands for the proposition that if a defendant

fails to object to claim splitting prior to an adjudication on the



     7
      Federal courts hearing § 1983 actions must accord the same
preclusive effect to state court judgments, both as to claims and
issues previously adjudicated, as would be given in the state court
system in which the federal court sits. Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 83-84 (1984).

                                 -6-
merits of the first claim, the res judicata defense may be deemed

waived in the second claim. See Calderon-Rosado, 805 F.2d at 1087.

The policy behind this exception is that it would be unfair to

allow a defendant to use res judicata to defend a second claim if,

influenced by its consent to the claim splitting, the plaintiff

voluntarily dismissed its first claim.

     In Calderon-Rosado, the plaintiff filed claims against his

employer in the Superior Court of Puerto Rico alleging “unjust

dismissal.”    He subsequently filed a similar suit in federal

district court under the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et. seq.    While both suits were pending,

the plaintiff moved to dismiss his claims in Superior Court,

explaining to the court his reasoning that the remedies under the

ADEA were more liberal.   At no time prior to the dismissal did the

employer object to facing claims in different courts. The employer

also made statements acknowledging    that the claims would proceed

in federal court.    Id. at 1086.     However, once the claims were

dismissed, the employer sought summary dismissal on res judicata

grounds.   The district court agreed and dismissed the plaintiff’s

ADEA claims.   Id.

     We reversed the dismissal of the plaintiff’s ADEA claims,

applying the “recognized exception to the general rule prohibiting

claim splitting [] that if the parties agree, or a defendant

implicitly assents, to a plaintiff’s splitting his claim, then a


                                -7-
judgment   in   an   earlier    action   which        normally     would    bar   the

subsequent action will not.”           Id. at 1087 (citing Restatement

(Second) of Judgments § 26(1)(a) (1982)).                     We found that the

employer consented to the claim splitting when he made affirmative

statements acknowledging that the claims in federal court would

proceed and also failed to object to the claim splitting at any

point in the litigation.          Id. (citing Restatement (Second) of

Judgments § 26, cmt. a, illus. 1).

      Barreto-Rosa argues that this case falls within the Calderon-

Rosado exception because the Defendants effectively consented to

the claim splitting when they failed to object to her statement

during the hearing on the motion to dismiss before the Court of

First Instance that a claim was pending in federal court. However,

the   Defendants’    failure    to   object      at    that    hearing     does   not

constitute consent for purposes of Calderon-Rosado.                        Thus, the

exception is inapplicable here.

      Consent   in   Calderon-Rosado       was    based       on   the   employer’s

affirmative statements acknowledging the claim splitting as well as

his failure to object.         The Defendants in this case made no such

affirmative statements and had expressly objected twice in federal

court to the claim splitting when Barreto-Rosa made the statement

to the Court of First Instance.               Thus, the implicit consent

justifying the exception in Calderon-Rosado is simply not present




                                     -8-
here because Barreto-Rosa was fully aware of the Defendants’

objection to the claim splitting.

      It is of no consequence that the Defendants never objected to

the Court of First Instance because their objections in federal

court are not only sufficient, but likely mandatory.               It is an open

question    under   Puerto    Rico    law   at    what    point   prior     to   an

adjudication on the merits of the first claim that an objection to

claim splitting must be brought.8                However, here it is of no

consequence because the Defendants raised an objection to the claim

splitting in their first responsive pleading to the complaint in

federal court –     their motion for summary judgment.

      Therefore, because the Defendants’ objections in federal court

served adequate notice to Barreto-Rosa of their protest to the

claim splitting, the Calderon-Rosado exception is inapplicable in

this case.

                                       B.

      Barreto-Rosa’s next argument is that regardless of whether the

Calderon-Rosado exception applies, res judicata should otherwise

not   bar   her   federal   claim    because:     (1)    the   Defendants   never

objected to the claim splitting to the Court of First Instance; (2)

she specifically reserved her right to litigate in the federal




      8
      Other states require objection at this point.    See, e.g.,
Thompson v. Gaudette, 92 A.2d 342 (Me. 1952) (requiring objection
“at the earliest possibility”).

                                      -9-
court; and (3) public policy considerations weigh in favor of

finding an exception to res judicata in this case.

       Barreto-Rosa’s first contention in this respect is that res

judicata is inapplicable because neither she nor the Court of First

Instance expected the voluntary dismissal with prejudice of her

initial   claims   to   bar    her    §    1983   claim.    This   argument    is

unavailing as Barreto-Rosa should have known that the dismissal

with   prejudice   would      bar    her   federal   claims   because   of    res

judicata. In its September 2003 Order, the district court analyzed

the res judicata issue at length. Specifically, the district court

found that the first two requirements were present, and that once

the third requirement was met, a “final and unappealable” decision,

res judicata might apply. Therefore, when Barreto-Rosa voluntarily

sought dismissal of her claims before the Court of First Instance,

she should have known that res judicata would likely bar her § 1983

claim.

       Barreto-Rosa’s next argument is that she specifically reserved

her right to litigate her federal claims in federal court in her

initial injunction petition before the Court of First Instance.

Barreto cites England v. Louisiana State Bd. of Medical Exam’rs,

375 U.S. 411 (1964), for the proposition that a plaintiff may

preserve his right to litigate his federal claims in federal court

after litigating state claims in state court.              As this circuit has

held, an England reservation allows “a form of abstention that


                                       -10-
permits the federal court, in effect, to ask a state court to

clarify a murky question of state law involved in the case, while

permitting the plaintiff to return to the federal forum for a

determination of the federal question after the state court has

decided   the   issue   of   state    law.”      Duty   Free   Shop,    Inc.   v.

Administracion De Terrenos, 889 F.2d 1181, 1183 (1st Cir. 1989).

     However, an England reservation is inapplicable in this case

because Barreto-Rosa identified no unsettled state law question

that required federal court abstention.            Moreover, this circuit’s

precedent suggests that for an England reservation to be effective,

a plaintiff must initially file suit in federal court and have the

district court abstain from hearing the case pending resolution of

the state claims in state court.             Allen v. McMurry, 449 U.S. 90,

101 n.17 (1980); see also Partido Nuevo Progresista v. Perez, 639

F.2d 825, 826 n.2 (1st Cir. 1980).           In this case, Barreto initially

filed suit in the Court of First Instance of Puerto Rico.

     Barreto-Rosa’s      final       argument    is     that   public    policy

considerations require an exception to res judicata. Puerto Rico’s

doctrine of res judicata contains several exceptions. Res judicata

may not apply if: (1) the prior judgment was rendered pursuant to

an invalid acceptance of the claim by defendant; (2) the prior

judgment was entered by a court without jurisdiction; (3) appeal

from the prior judgment was attempted but could not be accomplished

and appellant was not at fault; (4) there is fraud; (5) there would


                                      -11-
be a miscarriage of justice; or (6) public policy demands an

exception to res judicata. See Medina v. Chase Manhattan Bank, 737

F.2d 140, 144 (1st Cir. 1984).            “[C]ourts have refused to apply

rigidly the defense of res judicata if in so doing it defeats the

ends   of   justice,   especially    if   reasons     of   public   policy   are

involved.”    Perez v. Bauza, 83 D.P.R. 220, 226 (1962).

       The first four exceptions are inapplicable in this case.

There is only one case in this circuit considering Puerto Rico’s

“miscarriage of justice” exception. In Medina, this court found no

“miscarriage of justice” when the lower court dismissed plaintiff’s

claim with prejudice despite the plaintiff’s request for dismissal

without prejudice. Medina, 737 F.2d at 143-44. This court refused

to   second   guess    the   lower   court’s   decision      to   dismiss    with

prejudice even though res judicata would deny the plaintiff the

opportunity to litigate his claim.              Id.        This case is even

stronger: Barreto-Rosa voluntarily made the request to dismiss with

prejudice, thereby denying herself the opportunity to litigate her

claim.

       The final exception, rooted in public policy, similarly does

not apply.    This exception was successfully argued in two cases.

In Perez v. Bauza, the court granted an exception to res judicata

in a paternity suit because the court did not want to punish the

child for the mother’s mistake.        Id. at 226-27.       The exception was

also applied in Millan Soto v. Caribe Motors Corp., 83 D.P.R. 494


                                     -12-
(1961), where the court allowed an exception because the acceptance

of the contract at issue in the previous judgment had been obtained

by deceit, the contract was defective and violated Puerto Rico law,

and the previous judgment was made in a summary and special

proceeding.   Id. at 480-81.   In this case, Barreto-Rosa’s tactical

error was her own decision and was not the result of fraud,

illegality, or any other outside force.      Public policy does not

demand an exception in this case.

                                 IV.

     For the foregoing reasons, we affirm the entry of summary

judgment terminating Barreto-Rosa’s §1983 claim.

     Affirmed.




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