Muigai v. City of Pittsfield ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]


                           UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                ____________________



       No. 96-2113


                                  JOSEPH T. MUIGAI,

                             D/B/A C.M.S. CONSTRUCTION,


                                Plaintiff, Appellant,


                                         v.


                             CITY OF PITTSFIELD, ET AL.,


                               Defendants, Appellees.


                                ____________________



                    APPEAL FROM THE UNITED STATES DISTRICT COURT


                          FOR THE DISTRICT OF MASSACHUSETTS


                [Hon. Frank H. Freedman, Senior U.S. District Judge]


                                ____________________


                                       Before


                               Torruella, Chief Judge,

                           Campbell, Senior Circuit Judge,

                             and Boudin, Circuit Judge.


                                ____________________


            Joseph T. Muigai on brief pro se.

            Kathleen Alexander, City Solicitor, on brief for appellees.



                                ____________________


                                    June 5, 1997

                                ____________________







                 Per
Curiam.
Appellant Joseph Muigai appeals the district


            court  judgment dismissing  his  civil rights  complaint  and


            denying
his
request
for
injunctive relief.  Essentially for the


            reasons given  by the district  court in  its memorandum  and


            order,
dated
July 17, 1996, we find Muigai's claim for damages


            and injunctive relief against the City of Pittsfield and  its


            employees  in  their  official  capacity  barred  under   the


            principles of res judicata.  Muigai's previous suit in  state


            court against the City  of Pittsfield arose "out of the  same


            nucleus of operative  facts as his present suit and  [sought]


            redress
for
essentially the same basic wrong.  [Thus,] the two


            suits [advanced] the same cause of action notwithstanding any


            difference
in
remedies
sought or theories of recovery pleaded."


            Kale
v.
Combi
ned Ins. Co. of America, 924 F.2d 1161, 1166 (1st


            Cir.),  cert. denied,  502 U.S.  816 (1991).   Moreover,  the


            employees, insofar as they were sued in an official capacity,


            were
in
privity with Pittsfield and thus also protected by the


            principles
of
res
judicat
a.  See Seabrook v. New Hampshire, 738


            F.2d 10, 11 (1st Cir. 1984).


                 However, we question whether the bar applies as well  to


            his
claims
against the employees in their individual capacity.


            Precedent suggests otherwise.  Roy v. Augusta, 712 F.2d 1517,


            1522
(1st
Cir. 1983) (prior suit against defendant in official


            capacity does not  bar later suit  against same defendant  in


            individual capacity); Gray  v. Lacke, 885 F.2d 399, 404  (7th




                                         -2-







            Cir.
1989)
(same), cert. denied, 494 U.S. 1029 (1990); Headley


            v.
Bacon
,
828 F.2d 1272, 1279 (8th Cir. 1987) (same); see also


            Frost v.  Thompson, 219 Mass. 360,  368, 106 N.E. 1009,  1011


            (1914)
(res
j
udicata applies only if action is brought against


            defendant  in same capacity  as in earlier  action).  In  any


            event, the  district  court should  have dismissed  the  suit


            against
the
employees in their individual capacity for lack of


            personal  jurisdiction.  The  record  makes  clear  that  the


            employees were never  properly served as required by Fed.  R.


            Civ.
P.
4.
Furthermore, since the defense of lack of personal


            jurisdiction
was
raised
in defendants' first responsive motion,


            it was not waived.  Absent proper service or waiver  thereof,


            the district  court lacked  the authority  to adjudicate  the


            claim.  General Contracting & Trading Co. v. Interpole  Inc.,


            899
F.2d
109, 114 (1st Cir. 1990).  This was true even though,


            in  the  instant case,  the  judgment  was in  favor  of  the


            defendants.  See Northwestern National Casualty Co. v. Global


            Moving  & Storage, Inc.,  533 F.2d 320,  323 (6th Cir.  1976)


            ("[T]he trial court  erred in entering  judgment in favor  of


            [defendants]  before determining  that it  had the  requisite


            personal jurisdiction.").


                 The
district
court judgment is affirmed as to the City of


            Pittsfield
and
the
employees in their official capacity.  It is


            vacated as to the employees in their individual capacity  and


            the
case
is
remanded
to
the district court with instructions to




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            enter
an
order dismissing the complaint against these for lack


            of personal jurisdiction.


















































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