                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 24 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ALASKA LABORERS HEALTH AND                       No. 11-35845
SECURITY, RETIREMENT, TRAINING
AND LEGAL SERVICES TRUST                         DC No. 3:11 cv-0049 RRB
FUNDS,

              Plaintiff - Appellant,             MEMORANDUM*

  v.

ALASKA TRAILBLAZING, INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Chief District Judge, Presiding

                        Argued and Submitted May 22, 2013
                                Anchorage, Alaska

Before:       TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.

       Plaintiff-Appellant Alaska Laborers Health and Security, Retirement,

Training and Legal Services Funds (“Laborers”), appeals from the district court’s

grant of summary judgment to Defendant-Appellee Alaska Trailblazing, Inc.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(“Trailblazing”), on the ground of res judicata. Because the facts and procedural

history are familiar to the parties, we do not recite them here, except as necessary

to explain our disposition. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo both the district court’s determination that res judicata applies and

its order granting summary judgment on that ground. See Clark v. Bear Stearns &

Co., 966 F.2d 1318, 1320 (9th Cir. 1992). We affirm the district court’s grant of

summary judgment.

      It is undisputed that the prior action was between the same parties and

concluded in a final judgment on the merits. We analyze whether or not a

subsequent claim is based on the same “cause of action” by considering, among

other factors, “whether the two suits arise out of the same transactional nucleus of

facts.” Constantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.

1982). To avoid “repetitive litigation,” we consider whether claims brought in a

subsequent suit would have combined with those of the prior suit to form a

“convenient trial unit.” Int’l Union of Operating Eng’rs v. Karr, 994 F.2d 1426,

1430 (9th Cir. 1993) (internal quotation marks omitted). In Karr, we held that

claims for late payment and underpayment are based on a “single right” to “proper

monthly contribution.” Id. Karr’s holding therefore compels the conclusion that

Laborers’ second action was based on the “same cause of action” as the first action,

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and is precluded by res judicata. See id. at 1429.

      Accordingly, Laborers’ arguments to the contrary are without merit. First,

the “on demand” issue is immaterial because Laborers had audited Trailblazing

well before the district court entered judgment in the original action. See id. at

1428. Laborers’ effort to distinguish Karr thus fails. Second, there is no reason to

apply the concealment exception in this case because Laborers learned of the

under-payments in plenty of time to recover them in the first action. Finally,

Laborers is unable to avail itself of the alternative holding of Cabrera v. City of

Huntington Park, 159 F.3d 374, 382 n.12 (9th Cir. 1998) (holding that res judicata

will not bar suits brought to protect “new rights acquired pending the action”).

Laborers’ second action was not based on a “new right,” but rather, was based on

the same right to “proper monthly contribution” as the first. See Karr, 994 F.2d at

1430. Further, there is no danger of impracticability or unfairness here because

Laborers learned about the under-payments in time to amend their claim in the first

action as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1)(A). See id.

Accordingly, Karr controls, not Cabrera, and the second action is precluded.

      Laborers’ claims asserted in this action are virtually identical to those

asserted in their prior action, such that they “could have been asserted” in that

litigation without difficulty. Karr, 994 F.2d at 1429. Laborers knew about

                                          -3-
Trailblazing’s under-payment months before judgment was entered in the first

action and could easily have amended its first complaint to include those claims.

Thus, the district court did not err in granting summary judgment to Trailblazing

on the ground of res judicata.

      AFFIRMED.




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