
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1671                        DENNIS DIPINTO AND KIERAN CUNNINGHAM,                               Plaintiffs, Appellants,                                          v.                     JOHN SPERLING, IN HIS CAPACITY AS PRESIDENT                        OF LODGE #8 OF THE FRATERNAL ORDER OF                       POLICE AND THE CITY OF NEWPORT, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Rosenn,* Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________             Kevin B. McBurney  with whom DiPinto Associates was  on brief for             _________________            __________________        appellants.             Joseph J. Nicholson, Jr. for appellee City of Newport.             ________________________             Donald A. Woodbine with whom Vogel, Souls & Woodbine was on brief             __________________           _______________________        for Lodge #8 of the Fraternal Order of Police.                                 ____________________                                   November 5, 1993                                 ____________________        *Of the Third Circuit, sitting by designation.                    CYR, Circuit  Judge.   Appellants, former  probationary                    CYR, Circuit  Judge.                         ______________          police  officers with  the City  of Newport,  Rhode  Island, were          summarily  terminated in June,  1989.   They then  filed separate          state court  suits against the  City of Newport and  certain City          officials [collectively:   the "City"],  claiming deprivations of          their  alleged entitlement to  a hearing under  Rhode Island law.          The state court  dismissed their claims, with  prejudice,1 on the          ground that Rhode Island law affords probationary police officers          no right to a termination hearing.                    Appellants  then  brought  this  action in  the  United          States District  Court  for  the District  of  Rhode  Island  for          alleged  violations of  the  collective bargaining  agreement and          their civil rights, see 42 U.S.C.   1983, arising from the City's                              ___          failure to afford  them a termination  hearing.  Their  complaint          also  asserted claims against the Fraternal Order of Police Lodge          #8 [the "Union"]  for breach of its duty  of fair representation.          The district  court adopted the recommended decision  of a magis-          trate judge, and entered summary judgment against appellants.  We          affirm.          I.   Claims Against the City.          I.   Claims Against the City.               _______________________                    Federal courts must  accord a state court  judgment the          same preclusive effect it would receive in the state where it was          rendered.   Allen v.  McCurry, 449 U.S.  90, 96  (1980) (  1983).                      _____     _______                                        ____________________               1The  Rhode Island Supreme  Court likewise  upheld plaintiff          Cunningham's termination.  DiPinto did not appeal.                                          2          Under the  Rhode Island doctrine  of res judicata  (claim preclu-          sion), a final judgment on the merits precludes  later litigation          of the same  claim by the  same parties.   Coates v. Coleman,  51                                                     ______    _______          A.2d 81, 85  (R.I. 1947).  See  Capraro v. Tilcon  Gammino, Inc.,                                     ___  _______    _____________________          751 F.2d 56,  58 (1st Cir. 1985) (per curiam).  A dismissal, with          prejudice, constitutes a  final judgment on  the merits.   School                                                                     ______          Comm.  of  North  Providence v.  North  Providence  Federation of          ____________________________     ________________________________          Teachers, 404 A.2d 493, 495 (R.I. 1979).  As the City was a party          ________          to the state court actions,  we need only consider whether appel-          lants  had a  full and  fair opportunity  in the  state court  to          litigate against  the  City  all  issues raised  in  the  present          action.  Kremer  v. Chemical Constr. Corp., 456  U.S. 461, 480-81                   ______     ______________________          (1982).   Appellants do  not deny that  they had a  full and fair          opportunity to  litigate their claims  against the City  in state          court;  indeed, they admittedly chose, for strategic reasons, not                                          _____          to  raise "the current . . . issues."  Consequently, their claims          against the City are res judicata.2                                        ____________________               2Appellants  now assert that  the City violated  their civil          rights after  the state  court judgments were  entered.   As this                 _____          claim was not presented below, we decline to consider it.  Nieves                                                                     ______          v. University of  Puerto Rico, ___ F.3d ___, ___ (1st Cir. 1993),             __________________________          No. 92-2214, slip op. at 23, n.19 (1st Cir. Oct. 18, 1993).                                          3          II.  Claims Against the Union.          II.  Claims Against the Union.               ________________________                    A claim for breach of  a Union's duty of fair represen-          tation  cannot succeed  absent a  showing, inter  alia,  that the                                                     _____  ____          underlying action  against the  employer was  meritorious.   Kis-                                                                       ____          singer v. U.S. Postal Service, 801 F.2d 551, 553 (1st Cir. 1986).          ______    ___________________          Cf. Hines v.  Anchor Motor Freight, 424 U.S.  554, 570-71 (1976).          ___ _____     ____________________          Here, the Union  duly interposed its collateral  estoppel defense          (issue  preclusion) in response to appellants' present attempt to          relitigate the merits of their unsuccessful claims to a  termina-          tion hearing.  Mutuality of parties is not essential to a collat-          eral estoppel defense under Rhode Island law.   Providence Teach-                                                          _________________          ers  Union, etc.  v. McGovern,  319  A.2d 358,  361 (R.I.  1974).          ________________     ________          Since appellants are collaterally estopped from relitigating  the          merits of their  underlying claims against the City     an essen-          tial  element of their  unfair representation claims  against the          Union    the district court correctly entered summary judgment in          favor of the Union.  See  Goldman v. First Nat'l Bank of  Boston,                               ___  _______    ___________________________          985 F.2d 1113, 1116 (1st Cir. 1993).3                    The  district court judgments in favor of the appellees          must be affirmed.                    Affirmed.                    Affirmed.                    ________                                        ____________________               3Insofar as their complaint may attempt to plead  claims not          dependent on precluded grounds, appellants failed to come forward          with specific evidence, or  authority, sufficient to  demonstrate          that the Union  is not entitled to  judgment as a matter  of law.          Id.          ___                                          4
