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,
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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.”
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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.
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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).
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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).
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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
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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
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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”).
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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
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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
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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
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(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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