Diaz v. Judge Advocate General of the Navy , 413 F. App'x 342 ( 2011 )

0-1112-cv
Diaz v. Judge Advocate General of the Navy
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 4th day of March, two thousand eleven.
PRESENT:
ROBERT A. KATZMANN,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_________________________________________
SALVADOR DIAZ,
Plaintiff-Appellant,
v. 10-1112-cv
JUDGE ADVOCATE GENERAL OF THE NAVY,
Defendant-Appellee.
_________________________________________
FOR APPELLANT: Salvador Diaz, pro se, New York, NY.
FOR APPELLEE: Tomoko Onozawa and Benjamin H. Torrance, Assistant
United States Attorneys, for Preet Bharara, United States
Attorney for the Southern District of New York, New York,
NY.
Appeal from a judgment of the United States District Court for the Southern District
of New York (Preska, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Appellant Salvador Diaz, pro se, appeals from the district court’s sua sponte
dismissal of his complaint on claim preclusion grounds. We assume the parties’ familiarity
with the underlying facts, procedural history of the case, and specification of the issues on
appeal.
This Court reviews de novo a district court’s sua sponte dismissal of a complaint, see
Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001), and the application of the doctrine of
res judicata, see O’Connor v. Pierson, 568 F.3d 64, 69 (2d Cir. 2009). “The preclusive
effect of a federal-court judgment is determined by federal common law,” and “is defined
by claim preclusion and issue preclusion, which are collectively referred to as ‘res
judicata.’” Taylor v. Sturgell, 553 U.S. 880, 891-92 (2008). Claim preclusion “forecloses
successive litigation of the very same claim, whether or not relitigation of the claim raises
the same issues as the earlier suit.” Id. at 892 (quoting New Hampshire v. Maine, 532 U.S.
742, 748 (2001)) (internal quotation marks omitted). “Issue preclusion, in contrast, bars
‘successive litigation of an issue of fact or law actually litigated and resolved in a valid
court determination essential to the prior judgment,’ even if the issue recurs in the context of
a different claim.” Id. (quoting New Hampshire, 532 U.S. at 748-49).
Under federal law, claim preclusion “bars later litigation if an earlier decision was (1) a
final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving
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the same parties or their privies, and (4) involving the same cause of action.” EDP Med.
Computer Sys., Inc. v. United States, 480 F.3d 621, 624 (2d Cir. 2007) (alteration and internal
quotation marks omitted). Although claim preclusion is an affirmative defense that must
ordinarily be raised in a party’s answer or else is waived, a district court may in certain
circumstances raise the issue sua sponte. See Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir.
1993) (per curiam).
Diaz’s instant complaint specifically sought, inter alia, a “declaratory judgment
voiding his conviction by court-martial,” a claim over which the district court had determined
that it lacked subject matter jurisdiction in Diaz’s prior action. A dismissal without prejudice
for lack of subject matter jurisdiction is not a dismissal “on the merits” for claim preclusion
purposes. See Fed. R. Civ. P. 41(b) (“Unless the dismissal order states otherwise, a dismissal
order under [the involuntary dismissal provision] and any dismissal not under this rule —
except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 —
operates as an adjudication on the merits.” (emphasis added)); Hernandez v. Conriv Realty
Assocs., 182 F.3d 121, 123 (2d Cir. 1999) (“[W]here a court lacks subject matter jurisdiction, it
also lacks the power to dismiss with prejudice.”). While Diaz’s instant claim seeking
declaratory relief was previously dismissed without prejudice, in 2008 the district court
dismissed his ineffective assistance of counsel and erroneous review allegations with prejudice,
as those claims had already been fully litigated in the District of Kansas and the Tenth Circuit.
See Diaz v. Dep’t of Def., No. 08 Civ. 370 (DC), 2008 WL 4671833, at *4 (S.D.N.Y. Oct. 23,
2008). Those claims, Diaz concedes, “are essential to demonstrate the claim in the instant
case.” Appellant’s Br. 14-15. Accordingly, because those claims were previously dismissed
on the merits (i.e., on the ground of issue preclusion), the district court was correct in
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concluding that these claims were barred as res judicata and therefore in dismissing Diaz’s
instant complaint for a declaratory judgment. See, e.g., Bank of N.Y. v. First Millenium, Inc.,
607 F.3d 905, 918 (2d Cir. 2010).
We have considered Diaz’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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