Diminico v. Lehman Bros Inc ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
No. 95-20568
Summary Calendar
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NICK DIMINICO, Plaintiff-Appellant,
versus
LEHMAN BROTHERS, INC., formerly known as
Shearson Lehman Brothers, Inc., Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-95-1057)
_________________________________________________________________
April 12, 1996
Before SMITH, BENAVIDES and DENNIS, Circuit Judges.
PER CURIAM*:
Plaintiff-Appellant Nick Diminico ("Diminico") appeals the
district court's order of dismissal in this case entered June 28,
1995. Although the court failed to enter a judgment separate from
the dismissal order as required by FED. R. CIV. P. 58, the record
makes clear that the district court intended to end the litigation
with this order. Therefore, we may exercise jurisdiction over the
appeal. See Whitaker v. City of Houston, Tex., 963 F.2d 831, 833-
34 (5th Cir. 1992). Finding the district court's dismissal in
error, we vacate and remand.
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
I.
On June 30, 1994, Diminico filed his original complaint in the
district court alleging claims under the Employee Retirement Income
Security Act of 1974 ("ERISA") and claims under Texas law. The
district court dismissed Diminico's complaint without prejudice for
failure to serve the summons within 120 days of the filing of the
complaint. See FED. R. CIV. P. 4(j).
On February 14, 1995, Diminico filed in Texas state court
alleging the same claims. Defendant-Appellee Lehman Brothers, Inc.
("Lehman Brothers") removed the action to federal court and moved
to dismiss based on the running of the statute of limitations
applicable to Diminico's claims. The district court granted the
motion to dismiss, finding that the case was based upon the same
set of facts as the cause of action previously dismissed. The
court did not address Lehman Brothers' limitations defense.
II.
The district court's second dismissal now on appeal appears to
be based on the doctrine of res judicata and/or collateral
estoppel. We find that res judicata cannot be properly applied in
this case. The first dismissal was without prejudice, and was not
a judgment on the merits. In addition, Lehman Brothers was not
properly served in the first action and, thus, was not a proper
party. Therefore, because the was never a final judgment on the
merits and the parties are not identical in both suits, the
district court erred in dismissing Diminico's second cause of
action based on the doctrine of res judicata. See Nagle v. Lee,
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807 F.2d 435, 440 (5th Cir. 1987). We also find collateral
estoppel inapplicable as the facts were not "fully and fairly
litigated" in the first action and the parties were not cast as
adversaries in the first action. See Matter of Greenway, 71 F.3d
1177 (5th Cir. 1996).
Lehman Brothers argues on appeal that dismissal was proper
because Diminico's claim for conversion is barred by the applicable
two-year statute of limitations. However, Diminico did not specify
in his complaint which section under ERISA applied to his cause of
action. The determination of the nature of Diminico's cause of
action and the applicable statute of limitations is a mixed
question of law and fact. Such a determination requires a close
examination of Diminico's pleadings to evaluate their true nature
and specification as to the pertinent ERISA section that he alleges
Lehman Brothers violated. As a court of review, we decline to make
such a factual determination in the first instance and remand to
the district court for further development and evaluation.
III.
For the reasons articulated above, the district court's
dismissal is VACATED, and we REMAND to the district court for
further development consistent with this opinion.
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