Lisa M. Silva v. City of New Bedford

United States Court of Appeals
For the First Circuit
No. 10-1013
LISA M. SILVA,
Plaintiff, Appellant,
v.
CITY OF NEW BEDFORD,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard, Circuit Judge,
and DiClerico, District Judge. *
Valeriano Diviacchi, with whom Diviacchi Law Office was on
brief, for appellant.
Joseph L. Tehan, Jr., with whom Jackie Cowin and Kopelman
and Paige, P.C. were on brief, for appellee.
November 1, 2011
Of the District of New Hampshire, sitting by designation. *

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HOWARD, Circuit Judge. This is an appeal from the
dismissal on res judicata grounds of a second action, arising from
a June 2007 altercation between the plaintiff-appellant, Lisa
Silva, and two police officers at a nightclub in New Bedford,
Massachusetts. For the reasons that follow, we affirm.
Silva filed suit in August of 2007 against the two New
Bedford officers who arrested her during the nightclub incident.
The district court denied Silva’s motion to amend her complaint to
add the City of New Bedford (“the City”) as a defendant. The suit
ended in a settlement prompted by an offer of judgment under
Federal Rule of Civil Procedure 68. See Silva v. Gibney, No. 07-
cv-11542-RGS (D. Mass.) (“Silva I”). Silva did not appeal the
denial of her motion to amend.
Within a few weeks after judgment was entered in Silva I,
Silva filed a second suit based on the nightclub incident, naming
the City as the defendant (“Silva II”). The district court
dismissed the case based on the doctrine of claim preclusion.
Silva II, 677 F. Supp. 2d 367, 370-72 (D. Mass. 2009). Silva
appealed.
We review the district court’s decision under the de novo
standard, accepting as true the facts alleged and drawing all
reasonable inferences in Silva’s favor. Ramallo Bros. Printing,
Inc. v. El Dia, Inc., 490 F.3d 86, 89 (1st Cir. 2007). Because the
City relies on the preclusive effect of a federal judgment, Silva
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I, we apply federal law of claim preclusion. Id. Federal claim
preclusion law bars a plaintiff from litigating claims in a
subsequent action that could have been, but were not, litigated in
an earlier suit. Airframe Sys., Inc. v. Raytheon Co., 601 F.3d 9, 1
14 (1st Cir. 2010). In the context of the defensive use of non-
mutual claim preclusion, the defendant must show that “(1) the
earlier suit resulted in a final judgment on the merits, (2) the
causes of action asserted in the earlier and later suits are
sufficiently identical or related, and (3) the parties in the two
suits are sufficiently identical or closely related.” Id.
(internal citations omitted).
Silva does not challenge the district court’s conclusion
that the Rule 68 judgment in Silva I constitutes a final judgment
with preclusive effect. Silva II, 677 F. Supp. 2d at 369. Silva
argues, nevertheless, that the judgment in Silva I settled her
claims against the police officers only, not her claims against the
City. Because the City was not a party to Silva I, the settlement
in Silva I did not resolve, directly, Silva’s claims against the
City. For purposes of claim preclusion, however, the question is
whether the judgment in Silva I bars Silva’s claims against the
City because she could have, but did not, bring those claims in
The doctrine of res judicata includes both claim preclusion 1
and issue preclusion. See Taylor v. Sturgell,128 S. Ct. 2161, 2170
& n.5 (2008). This case involves defensive non-mutual claim
preclusion.
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Silva I. See Airframe, 601 F.3d at 14. We accept the unchallenged
ruling that the judgment in Silva I is a final judgment for
purposes of claim preclusion.
In support of her appeal, Silva argues that her causes of
action in Silva II, against the City, lack the required
relationship with the causes of action against the police officers
in Silva I. She also argues that the City and the police officers
are not sufficiently related as parties in the two actions to
support claim preclusion.
A. Causes of Action
In considering whether the causes of action in two suits
are sufficiently related to support claim preclusion, we apply a
“transactional approach.” Mass. Sch. of Law at Andover, Inc. v.
Am. Bar Ass’n, 142 F.3d 26, 38 (1st Cir. 1998). The transactional
approach does not focus on the labels or sources for the
plaintiff’s causes of action but instead considers whether the
underlying factual bases for the causes “are related in time,
space, origin or motivation . . . .” Airframe, 601 F.3d at 15
(internal quotation marks and citation omitted). In other words,
we will find the required relationship “‘if both sets of claims-
those asserted in the earlier action and those asserted in the
subsequent action-derive from a common nucleus of operative
facts.’” Breneman v. U.S. ex rel. F.A.A., 381 F.3d 33, 38 (1st
Cir. 2004) (quoting Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 755
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(1st Cir. 1994)).
According to her complaints, Silva’s claims in both Silva
I and Silva II arose from an incident that occurred on June 16,
2007, at a nightclub in New Bedford, Massachusetts. That night,
Silva drove to the nightclub to pick up her mother, who had not
been permitted to enter the club. By the time Silva arrived, her
mother told her that the club had called the police. Two New
Bedford police officers, Timothy Gibney and William Sauve, arrived
soon after Silva did. Silva argued with the officers about whether
her mother had been given permission to enter the club, which
devolved into physical contact. The officers charged Silva with
disorderly conduct and took her to the Ash Street jail. Silva
suffered a sprained wrist, bruises to her right arm, and a sore
back.
Silva filed suit on August 20, 2007, bringing claims
against Officers Gibney and Suave under 42 U.S.C. §§ 1983 and 1988
and the Massachusetts Civil Rights Act and bringing common law
claims of false imprisonment, assault and battery, intentional
infliction of emotional distress, malicious prosecution, aiding and
abetting, and civil conspiracy. On November 24, 2008, Silva moved
to amend her complaint to add a claim under the Massachusetts Tort
Claims Act against the City. In the motion, Silva explained that
on July 27, 2007, she served a “presentment letter” on the City,
stating negligence claims arising from the nightclub incident that
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were actionable under the Massachusetts Tort Claims Act. Silva
represented that the six-month response time expired on January 27,
2008, which allowed her to bring her claim against the City.
The district court denied the motion, stating: “It is
simply too late in the proceedings to permit a new defendant and a
new theory of liability to be injected into the case.” Silva I, 2
Dec. 18, 2008. The parties filed their settlement agreement on
March 11, 2009. Judgment entered on March 25, 2009.
Silva filed a new action on April 19, 2009, Silva II.
The statement of facts in her new complaint is nearly identical to
the statement of facts in the Silva I complaint. Silva added
allegations in Silva II that the officers arrested her negligently,
because of the City’s negligent training and supervision of its
police officers with respect to the constitutional free speech
limitations on the New Bedford Municipal Code. She further alleged
that her arrest was based on an accepted standard custom,
procedure, or policy of the City of New Bedford police department.
Silva brought claims against the City under the Massachusetts Tort
Claims Act and §§ 1983 and 1988.
Silva’s claims against Officers Gibney and Sauve in Silva
I arose from the officers’ conduct during and following the
incident at the nightclub on June 16, 2007. Her claims against the
Silva’s motion to amend was filed five months after the close 2
of discovery and almost four months after the deadline for
dispositive motions.
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City in Silva II arose from the same conduct of the police officers
during and following the same incident. Although Silva brought her
claims under different theories, the factual basis for the claims
is the same - the officers’ actions during and following the
incident at the nightclub on June 16, 2007. Silva’s additional
allegations in her complaint against the City, to support her claim
of municipal liability, do not affect the identicality of the
underlying transaction for both complaints. Therefore, the causes
of action in both suits are sufficiently related to support claim
preclusion.
B. Parties
As we explained in Airframe, claim preclusion does not
require privity between parties in the two suits. 601 F.3d at 17.
Instead, claim preclusion applies if there is privity or “if the
new defendant is ‘closely related to a defendant from the original
action-who was not named in the previous law suit’ . . . .” Id.
(quoting Negrón-Fuentes v. UPS Supply Chain Solutions, 532 F.3d 1,
10 (1st Cir. 2008)). Other courts have concluded that a
sufficiently close relationship existed based on employment and
agency to support claim preclusion. See, e.g., McCoy v. Michigan,
369 Fed. Appx. 646, 650 (6th Cir. 2010); Adams v. Cal. Dep’t of
Health Servs., 487 F.3d 684, 691-92 (9th Cir. 2007); Russell v.
SunAmerica Secs., Inc., 962 F.2d 1169, 1174-75 (5th Cir. 1992)
(citing cases).
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In this case, the defendants in Silva I, Officers Gibney
and Sauve, were New Bedford police officers. As such, they were
employees of the City and were acting within the scope of their
employment during the nightclub incident that gave rise to the
claims in the two cases. Silva’s claims against the City are based
on the officers’ actions. Therefore, the officers and the City are
sufficiently closely related for purposes of claim preclusion.
Further, Silva provides no good reason to allow her
claims against the City. To the extent that Silva argues she was
unable to add the City as a defendant in Silva I due to the
procedure required under the Massachusetts Tort Claims Act, the
record does not support a suggestion of unfairness.
The nightclub incident occurred on June 16, 2007. To
bring a claim under the Massachusetts Tort Claims Act, Silva first
was required to present her claim in writing to the City and then
wait for the City to deny the claim or for six months to pass.
Mass. Gen. Laws ch. 258, § 4. Silva represents that she complied
with the presentment requirement by filing her letter with the City
on July 27, 2007, and that the six-month window expired without a
response from the City on January 27, 2008. Silva agrees that she
was free to file her claim against the City after January 27, 2008.
Nevertheless, Silva waited nearly ten months to move to
amend the complaint, which resulted in the decision to deny her
motion. She does not explain the delay. She also failed to appeal
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the denial of her motion to amend. Under these circumstances, we
discern no unfairness or inequity in the result.
The judgment of the district court is AFFIRMED.
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