     0-1112-cv
     Diaz v. Judge Advocate General of the Navy



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

             At a stated term of the United States Court of Appeals for the Second Circuit, held
     at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
     New York, on the 4th day of March, two thousand eleven.

    PRESENT:
                ROBERT A. KATZMANN,
                REENA RAGGI,
                RAYMOND J. LOHIER, JR.,
                      Circuit Judges.
    _________________________________________

    SALVADOR DIAZ,

                      Plaintiff-Appellant,

                      v.                                                    10-1112-cv

    JUDGE ADVOCATE GENERAL OF THE NAVY,

                Defendant-Appellee.
    _________________________________________

    FOR APPELLANT:                       Salvador Diaz, pro se, New York, NY.

    FOR APPELLEE:                        Tomoko Onozawa and Benjamin H. Torrance, Assistant
                                         United States Attorneys, for Preet Bharara, United States
                                         Attorney for the Southern District of New York, New York,
                                         NY.
            Appeal from a judgment of the United States District Court for the Southern District

  of New York (Preska, C.J.).

            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

  AND DECREED that the judgment of the district court is AFFIRMED.

            Appellant Salvador Diaz, pro se, appeals from the district court’s sua sponte

  dismissal of his complaint on claim preclusion grounds. We assume the parties’ familiarity

  with the underlying facts, procedural history of the case, and specification of the issues on

  appeal.

            This Court reviews de novo a district court’s sua sponte dismissal of a complaint, see

  Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001), and the application of the doctrine of

  res judicata, see O’Connor v. Pierson, 568 F.3d 64, 69 (2d Cir. 2009). “The preclusive

  effect of a federal-court judgment is determined by federal common law,” and “is defined

  by claim preclusion and issue preclusion, which are collectively referred to as ‘res

  judicata.’” Taylor v. Sturgell, 553 U.S. 880, 891-92 (2008). Claim preclusion “forecloses

  successive litigation of the very same claim, whether or not relitigation of the claim raises

  the same issues as the earlier suit.” Id. at 892 (quoting New Hampshire v. Maine, 532 U.S.

  742, 748 (2001)) (internal quotation marks omitted). “Issue preclusion, in contrast, bars

  ‘successive litigation of an issue of fact or law actually litigated and resolved in a valid

  court determination essential to the prior judgment,’ even if the issue recurs in the context of

  a different claim.” Id. (quoting New Hampshire, 532 U.S. at 748-49).

       Under federal law, claim preclusion “bars later litigation if an earlier decision was (1) a

final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving



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the same parties or their privies, and (4) involving the same cause of action.” EDP Med.

Computer Sys., Inc. v. United States, 480 F.3d 621, 624 (2d Cir. 2007) (alteration and internal

quotation marks omitted). Although claim preclusion is an affirmative defense that must

ordinarily be raised in a party’s answer or else is waived, a district court may in certain

circumstances raise the issue sua sponte. See Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir.

1993) (per curiam).

       Diaz’s instant complaint specifically sought, inter alia, a “declaratory judgment

voiding his conviction by court-martial,” a claim over which the district court had determined

that it lacked subject matter jurisdiction in Diaz’s prior action. A dismissal without prejudice

for lack of subject matter jurisdiction is not a dismissal “on the merits” for claim preclusion

purposes. See Fed. R. Civ. P. 41(b) (“Unless the dismissal order states otherwise, a dismissal

order under [the involuntary dismissal provision] and any dismissal not under this rule —

except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 —

operates as an adjudication on the merits.” (emphasis added)); Hernandez v. Conriv Realty

Assocs., 182 F.3d 121, 123 (2d Cir. 1999) (“[W]here a court lacks subject matter jurisdiction, it

also lacks the power to dismiss with prejudice.”). While Diaz’s instant claim seeking

declaratory relief was previously dismissed without prejudice, in 2008 the district court

dismissed his ineffective assistance of counsel and erroneous review allegations with prejudice,

as those claims had already been fully litigated in the District of Kansas and the Tenth Circuit.

See Diaz v. Dep’t of Def., No. 08 Civ. 370 (DC), 2008 WL 4671833, at *4 (S.D.N.Y. Oct. 23,

2008). Those claims, Diaz concedes, “are essential to demonstrate the claim in the instant

case.” Appellant’s Br. 14-15. Accordingly, because those claims were previously dismissed

on the merits (i.e., on the ground of issue preclusion), the district court was correct in
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concluding that these claims were barred as res judicata and therefore in dismissing Diaz’s

instant complaint for a declaratory judgment. See, e.g., Bank of N.Y. v. First Millenium, Inc.,

607 F.3d 905, 918 (2d Cir. 2010).

       We have considered Diaz’s remaining arguments and find them to be without merit.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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