                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            SEP 15 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
COLLEGESOURCE, INC., a California                No.   15-56994
corporation,
                                                 D.C. No.
              Plaintiff-Appellant,               3:08-cv-01987-GPC-MDD

 v.
                                                 MEMORANDUM*
ACADEMYONE, INC., a Pennsylvania
corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Gonzalo P. Curiel, District Judge, Presiding

                          Submitted September 1, 2017**
                              Pasadena, California

Before: WARDLAW and BYBEE, Circuit Judges, and BARTLE,*** District
Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Harvey Bartle III, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
      CollegeSource, Inc. (“CollegeSource”) appeals the district court’s grant of

summary judgment on res judicata grounds in AcademyOne, Inc.’s

(“AcademyOne”) favor. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm.1

      1.      The district court correctly decided that AcademyOne did not waive

its res judicata defense by failing to plead it in its Answer. AcademyOne did not

waive its preclusion defense by raising it for the first time on summary judgment

because the preclusive judgment had not been rendered when the Answer was

filed, and AcademyOne raised the defense as soon as it became available. See

Sanchez v. City of Santa Ana, 915 F.2d 424, 432 (9th Cir. 1990). “[D]efendants

may raise an affirmative defense for the first time in a motion for summary

judgment . . . if the delay does not prejudice the plaintiff.” Magana v.

Commonwealth of the N. Mar. I., 107 F.3d 1436, 1446 (9th Cir. 1997); see also



      1
          CollegeSource asks us to take judicial notice of documents filed before
the Third Circuit and evidence presented to the Pennsylvania district court. We
may properly take judicial notice of court filings and other matters of public
record. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir.
2006). We therefore GRANT CollegeSource’s Motion to Take Judicial Notice of
Documents in Third Circuit Appendix, Corrected Motion to Take Judicial Notice
of Third Circuit Docket Filings, and Motion to Take Judicial Notice of Highlighted
Lists of Catalogs in Evidence. CollegeSource’s Motion to Take Judicial Notice of
Third Circuit Docket Filings is DENIED as moot because CollegeSource later filed
a corrected version of this motion, which we are granting.
                                          2
Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984). Moreover, AcademyOne

informed CollegeSource numerous times during proceedings in California and

Pennsylvania that it intended to raise a res judicata defense, and thus

CollegeSource was not prejudiced by AcademyOne’s assertion of the defense at

summary judgment.

      2.      The district court correctly put the burden on CollegeSource to prove

that it lacked a full and fair opportunity to litigate in the Pennsylvania Action and

correctly concluded that CollegeSource failed to meet its burden. A “full and fair

opportunity to litigate” is not an element of claim preclusion but rather may be

proven by the party seeking to avoid the preclusive effect of a prior judgment. See

Kremer v. Chem. Constr. Corp., 456 U.S. 461, 480–81 (1982); Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir.

2003). Although the district court applied the more rigorous standard articulated in

Blonder-Tongue Laboratories v. University of Illinois Foundation, 402 U.S. 313,

333 (1971), to assess whether CollegeSource had a full and fair opportunity to

litigate in the Pennsylvania Action, Kremer’s due process standard is more

appropriate here. See Kremer, 456 U.S. at 480–81; Shaw v. Cal. Dep’t of Alcoholic

Beverage Control, 788 F.2d 600, 606 (9th Cir. 1986) (“The Court stated that in the

context of claim preclusion, a party has had a full and fair opportunity to litigate if


                                           3
the procedures provided meet the requirements of the Due Process Clause of the

Fourteenth Amendment.”). Under either standard, however, CollegeSource had a

full and fair opportunity to litigate in the Pennsylvania Action because it was

provided with sufficient procedural opportunities to bring and support its claims

through and including appellate review.

      3.     The district court correctly determined that the judgment in the

Pennsylvania Action precluded CollegeSource from continuing to litigate its

misappropriation and California statutory claims in the California Action, even

though CollegeSource did not present those claims to the Pennsylvania district

court. CollegeSource offers various reasons why it “could not have brought” the

misappropriation and statutory claims in the Pennsylvania Action but misses the

basic point that those claims arise from the same transactional nucleus of fact as

the claims CollegeSource raised in the Pennsylvania Action. See Turtle Island

Restoration Network v. U.S. Dep’t of State, 673 F.3d 914, 917–19 (9th Cir. 2012);

United States v. Liquidators of European Fed. Credit Bank, 630 F.3d 1139,

1151–52 (9th Cir. 2011) (identifying the “true inquiry” as whether the claims arise

from the same transactional nucleus of fact, not whether the unasserted claims

would have succeeded if brought in the first forum). Moreover, allowing the

California Action to proceed would force AcademyOne to relitigate rights that it


                                          4
had already secured in the Pennsylvania Action. See id. CollegeSource is not

entitled to a second bite at the apple.

      4.     The district court did not abuse its discretion by denying

CollegeSource’s request for materials considered by AcademyOne’s expert in

support of its opposition to CollegeSource’s terminated motion. “[A] decision to

deny discovery will not be disturbed except upon the clearest showing that the

denial of discovery results in actual and substantial prejudice to the complaining

litigant.” Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003)

(internal quotation marks omitted). Parties are entitled to discovery of only

material that is “relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).

Because CollegeSource sought expert materials that were no longer relevant to any

claims or defenses in the California Action, the district court properly denied its

discovery motion.

      5.      The district court correctly concluded that CollegeSource did not

have a Seventh Amendment right to a jury trial on the question of res judicata.

“The judge decides questions of law; the jury, questions of fact.” Sparf v. United

States, 156 U.S. 51, 89 (1895). “The preclusive effect of a judgment in a prior case

presents a mixed question of law and fact in which the legal issues predominate.”

Robi v. Five Platters, Inc., 838 F.2d 318, 321 (9th Cir. 1988). CollegeSource


                                           5
neither provides any legal authority for its position that juries have a role to play in

determining the application of res judicata nor points to any question of fact

appropriate to be determined by a jury.

      AFFIRMED.




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