                                                             F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                               JUL 8 2003
                          FOR THE TENTH CIRCUIT
                                                         PATRICK FISHER
                                                                   Clerk

SANDRA FOLSE WATSON;
WILLIAM L. BUSHUE; CARLA
BALZER; CHRISTY KNIGHT;
RONALD BEACHMAN; DORA
HUFF BEACHMAN,                                   No. 02-3180
                                          (D.C. No. 99-CV-2106-CM)
            Plaintiffs-Appellants                  (D. Kan.)

and

STEVEN PERRY; CHRISTINE
PERRY,

            Plaintiffs,

v.

UNIFIED GOVERNMENT OF
WYANDOTTE COUNTY/KANSAS
CITY, KANSAS; CAROL
MARINOVICH; DENNIS HAYS;
HAROLD T. WALKER; LT. PAT
OHLER; RAY BOND; GREGORY A.
TALKIN; EDWIN A. RUST;
MAURICE RYAN; DEBBIE WARD;
WAYNE G. BRADLEY; LUPE
GONZALAS; JOHN LACY; DEBBIE
GRABER; JAMES MCDANIEL; and
STEVE WILLIAMS, individually and
in their official capacity as employees
of the Unified Government of
Wyandotte County/Kansas City,
Kansas, and any other unknown
individuals discovered to have caused,
conspired to, or participated in these
causes of action,
               Defendants-Appellees.


                            ORDER AND JUDGMENT           *




Before HARTZ , O’BRIEN , and McCONNELL , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

                                  I. BACKGROUND

       This case was removed from state court to the United States District Court

for the District of Kansas. Plaintiff Sandra Folse Watson owns certain commercial

and residential properties located in Kansas City, Kansas. The remaining plaintiffs

are or were Watson’s tenants. Plaintiffs asserted claims against defendants under

42 U.S.C. § 1983 and state law, alleging that they violated plaintiffs’ Fourth

Amendment rights and abused legal process when they searched the subject

properties in July and October 1997. Following the district court’s entry of


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                          -2-
judgments as a matter of law under Fed. R. Civ. P. 50(a) in favor of certain of the

defendants and a jury trial on plaintiffs’ remaining claims, the case was resolved

in favor of defendants on all of plaintiffs’ claims, and a final judgment dismissing

the case was entered by the district court in December 2001.

      Plaintiffs have raised the following issues in this appeal: (1) whether the

district court erred in entering judgment as a matter of law under Rule 50(a) in

favor of defendants Unified Government of Wyandotte County/Kansas City,

Kansas (the City) and Carol Marinovich and against plaintiffs Watson and William

L. Bushue on claim preclusion grounds, and whether the district court erred in

denying plaintiffs’ motion to alter or amend the claim preclusion judgment;   1
                                                                                  (2)

whether the district court erred in granting judgment as a matter of law under Rule

50(a) in favor of the City on the Fourth Amendment claims of the remaining

plaintiffs, and whether the district court erred in denying plaintiffs’ motion to alter

or amend the judgment entered in favor of the City; (3) whether certain of the

district court’s evidentiary rulings were erroneous; and (4) whether the district

court erred in denying plaintiffs’ motion for a new trial.


1
       Defendants argue that Watson and Bushue have waived the claim
preclusion issue because they made no substantive arguments regarding the issue
in their opening brief. Given Watson’s and Bushue’s pro se status and the fact
that they asserted that the district court’s claim preclusion ruling was incorrect in
their opening brief and then supported the assertion with specific arguments in
their reply brief, Aplt. Opening Br. at 10 and Reply Br. at 11-13, we will address
the merits of the claim preclusion issue.

                                           -3-
                                      II. DISCUSSION

       1. Claim Preclusion Ruling .

       Plaintiffs Watson and Bushue filed a prior case against Marinovich and the

City, and the prior case, Case No. 98CV2380, was also removed from state court

to the District of Kansas.   2
                                 The district court determined that Watson and Bushue

had asserted and settled Fourth Amendment claims based on the searches in July

and October 1997, in Case No. 98CV2380. R., Case No. 99CV2106, Vol. VII,

Doc. 187 at 9-10, 16-20, 25-27 and Vol. VIII, Doc. 216 at 9-10. As a result, the

district court concluded that the doctrine of res judicata barred Watson and Bushue

from asserting the claims against the City and Marinovich in this case.          Id.

       The preclusive effect of a prior judgment of a federal court is determined by

applying federal law.     Yapp v. Excel Corp. , 186 F.3d 1222, 1226 (10th Cir. 1999).

Under federal law, claim preclusion       3
                                              requires: (1) a judgment on the merits in the

earlier action; (2) identity of the parties or their privies in both suits; and

(3) identity of the cause of action in both suits.       Id. With respect to the third

requirement, we have adopted the transactional approach of the Restatement

2
       In their original petition in Case No. 98CV2380, plaintiffs did not name the
City as a defendant. However, they named Marinovich as a defendant in her
official capacity as Mayor, and, for purposes of § 1983, the official capacity claim
was the equivalent of a municipal liability claim against the City. See Myers v.
Okla. County Bd. of County Comm’rs , 151 F.3d 1313, 1316 n.2 (10th Cir. 1998).
3
       Although the district court and the parties use the term “res judicata,” this
court employs the term “claim preclusion” instead.    Yapp , 186 F. 3d at 1226 n.1.

                                                 -4-
(Second) of Judgments (1982).         Id. at 1227. “The transactional approach provides

that a claim arising out of the same ‘transaction, or series of connected

transactions’ as a previous suit, which concluded in a valid and final judgment,

will be precluded.”       Id. (quoting Restatement § 24).

       Because it is a purely legal issue, we review the district court’s claim

preclusion ruling de novo.     4
                                   See Wilkes v. Wyo. Dep’t of Employment Div. of Labor

Standards , 314 F.3d 501, 503 (10th Cir. 2002). Having carefully reviewed the

record in Case No. 98CV2380 and the pertinent legal authorities, we affirm the

district court’s ruling.

       We first conclude that Watson and Bushue pled Fourth Amendment claims

based on the searches in 1997 in their original petition in Case No. 98CV2380.

Petition at ¶¶ 20-30 (attached to Doc. 1 in Case No. 98CV2380). In fact, they

specifically alleged that they had sustained damages in excess of $50,000 as a

result of the searches.      Id. at ¶ 23. Thus, we reject Watson and Bushue’s claim



4
       Because Watson and Bushue filed their motion to alter or amend the claim
preclusion judgment within ten days of the entry of the final judgment in this case
(excluding intermediate Saturdays and Sundays in accordance with Rule 6(a)), the
district court erred in analyzing the motion under Rule 60(b) instead of Rule
59(e). Nonetheless, because the filing of a timely Rule 59(e) motion permits us to
review the merits of the underlying judgment,   Hawkins v. Evans , 64 F.3d 543, 546
(10th Cir. 1995), and because Watson and Bushue’s motion was limited to legal
arguments regarding claim preclusion, we need only conduct a de novo review of
the underlying judgment, and we do not need to separately address the district
court’s denial of the motion to alter or amend.

                                              -5-
that the 1997 searches were either never a part of the case or were only pled to

establish a course of conduct.   5



       In their original petition in Case No. 98CV2380, Watson and Bushue also

asserted claims against the City and Marinovich based on a “drug march” that

occurred in July 1996.    Id. at ¶¶ 7-19. Applying the transactional approach, we

conclude that the drug march in 1996 and the searches in 1997 were not part of the

same transaction for claim preclusion purposes. Consequently, if the claims based

on the 1997 searches were at some point excised from Case No. 98CV2380 and

were therefore not subject to the final judgment that was entered in the case, then

the district court’s claim preclusion ruling is erroneous.

       A little over four months after Case No. 98CV2380 was removed to federal

court, the defendants in the case, in response to an offer from Watson and Bushue

to settle the case in exchange for a payment of $198,000, made a counteroffer to

settle the case for $2,500. R., Case No. 98CV2380, Vol. II, Doc. 54, Exs. 1, 2. At



5
       We also reject Watson and Bushue’s assertion that the final judgment
entered in Case No. 98CV2380 cannot form the basis for claim preclusion
because, under the Rooker-Feldman doctrine, the district court lacked subject
matter jurisdiction over the case. Except in special circumstances that do not
exist here, “federal-court judgments are res judicata notwithstanding a lack of
subject-matter jurisdiction.” Wright, Miller & Cooper, Federal Practice and
Procedure: Jurisdiction 2d § 4428 at 7 (2002);   see also Chem. Leaman Tank
Lines, Inc. v. Aetna Cas. & Sur. Co. , 177 F.3d 210, 219-20 (3d Cir. 1999);
Nemaizer v. Baker , 793 F.2d 58, 64-66 (2d Cir. 1986);   Lambert v. Conrad , 536
F.2d 1183, 1185 (7th Cir. 1976).

                                          -6-
the time defendants made their counteroffer, the original petition filed by Watson

and Bushue in Case No. 98CV2380 was the controlling pleading in the case.

Because the record does not contain any evidence to the contrary, we therefore

assume that defendants’ counteroffer was intended to settle all of the claims in the

original petition.

       The record in Case No. 98CV2380 shows that Watson and Bushue accepted

defendants’ settlement offer on March 12, 1999.         Id. , Ex. 3. At that time, the

original petition filed by Watson and Bushue was still the controlling pleading in

the case, and, in the acceptance letter he sent to defendants’ counsel, counsel for

Watson and Bushue gave no indication that the acceptance did not cover all of the

claims in the original petition.    Id. By this time, however, defendants had decided

to withdraw their settlement offer. On March 19, 1999,Watson and Bushue filed a

motion to enforce the settlement agreement and dismiss the petition in Case No.

98CV2380 with prejudice.       Id. , Doc. 54 at 1-2. In their motion, Watson and

Bushue once again gave no indication that their acceptance of defendants’

settlement offer did not cover all of the claims in the original petition.     Id. In June

1999, the district court granted Watson’s and Bushue’s motion to enforce the

settlement agreement, and dismissed Case No. 98CV2380 with prejudice.              Id. , Vol.

III, Doc. 88 at 1, 8. In that order, the district court did not state precisely what

petition or claims were being dismissed.       Id. We conclude, however, that the order


                                              -7-
must be interpreted as enforcing the settlement offer made by defendants and

accepted by Watson and Bushue on March 12, 1999. As already noted, that

settlement pertained to the then-existing petition, which included the claims based

on the 1997 searches.

      To be sure, subsequent events make it unclear whether Watson and Bushue

intended to settle the claims based on the 1997 searches. On March 29, 1999,

while their motion to enforce the settlement was still pending, Watson and Bushue

filed an amended petition in Case No. 98CV2380 in which they dropped the claims

based on the 1997 searches.      Id. , Vol. II, Doc. 59. In addition, on April 16, 1999,

the district court entered a pretrial order in Case No. 98CV2380, and the statement

of plaintiffs’ legal theories in the pretrial order did not include the claims based on

the 1997 searches.   6
                         Id. , Doc. 75 at 2-4. Thus, in June 1999, when the district




6
       After Watson and Bushue filed their amended petition in Case No.
98CV2380, the defendants in the case represented to the district court that the
claims based on the 1997 searches were no longer a part of the case and that, as a
result, any final disposition in Case No. 98CV2380 would have no res judicata
effect in this case. R., Case No. 98CV2380, Vol. II, Doc. 75 at 7 and Vol. III,
Doc. 82 at 1-2 and Doc. 86 at 3, 4. Although troubling, we do not view
defendants’ statements as being dispositive of the issues now before this court.
At the time the statements were made, the question of whether the district court
would enforce the settlement agreement in Case No. 98CV2380 was still
undecided. Defendants’ statements thus can be taken as referring to the case as it
was then being litigated, pursuant to the amended complaint, which did not
include claims based on the 1997 searches.

                                             -8-
court entered its order enforcing the settlement and dismissing the case, the case

no longer included the 1997 search claims.

       To add to the confusion, after Watson and Bushue accepted defendants’

settlement offer and before defendants attempted to withdraw the offer, counsel

for defendants sent a proposed release to counsel for Watson and Bushue, which

would have released all claims relating to the 1997 searches.   Id. , Doc. 58, Ex. C.

In response, counsel for Watson and Bushue sent a letter to counsel for defendants

stating that the terms of the proposed release were unacceptable, and counsel

tendered a proposed counter release that would have only released claims relating

to the 1996 drug march.    Id. , Ex. D. Unfortunately, Watson and Bushue moved to

enforce the settlement agreement without resolving the question regarding the

proper scope of the release, and Case No. 98CV2380 was subsequently dismissed

with prejudice without a release ever being executed by the parties.

       We resolve these uncertainties in favor of preclusion. Whatever doubt there

may be about Watson and Bushue’s understandings or intentions, there can be

little question that the defendants’ settlement offer, when made, encompassed the

1997 search claims. Because Watson and Bushue or, more precisely, their counsel,

insisted on enforcing that settlement offer despite defendants’ attempted

withdrawal, without clarifying the precise scope of the settlement agreement, they

bear responsibility for the ensuing confusion. It would be unfair to enforce an


                                            -9-
agreement on the defendants lacking elements that were part of the deal they

proposed.

       This result is supported by our decision in     Yapp . In Yapp , an employee filed

suit against his former employer in the United States District Court for the District

of Colorado seeking to recover overtime compensation under the Federal Labor

Standards Act (the Overtime Action).       Yapp , 186 F.3d at 1225. Two weeks later,

the employee filed a separate action against his employer in state court asserting

claims for wrongful discharge (the Wrongful Discharge Action).            Id.

Subsequently, the employer removed the Wrongful Discharge Action to the

District of Colorado, and the employer then filed a motion to consolidate the two

cases in that court, which motion the employee successfully opposed.            Id. After

the district court denied the employer’s motion to consolidate, the parties settled

the Overtime Action, and the Overtime Action was eventually dismissed with

prejudice pursuant to a stipulation entered into by the parties.    Id.

       After the Overtime Action was dismissed, the employer filed a motion in the

Wrongful Discharge Action to supplement its pending motion for summary

judgment to include the affirmative defense of claim preclusion based on the

dismissal of the Overtime Action.      Id. at 1225-26. The district court granted the

employer’s motion and eventually entered summary judgment in favor of the

employer on the basis of claim preclusion.       Id.


                                             -10-
       On appeal, we affirmed the district court’s claim preclusion ruling on the

grounds that: (1) the claims in the Overtime Action and the Wrongful Discharge

Action arose out of the parties’ employment relationship, and an employment

relationship is a single transaction for purposes of claim preclusion,         id. at 1227-

28; and (2) while the district court had permitted the two cases to proceed

separately by virtue of its order denying the employer’s motion to consolidate, the

employee could not rely on that fact to defeat the employer’s claim preclusion

defense because the employee’s counsel had fully realized and even acknowledged

the risk of claim preclusion prior to settling the Overtime Action,       7
                                                                              and yet counsel

nonetheless proceeded to settle the Overtime Action without securing an

agreement with the employer or an order from the district court preserving the

employee’s right to pursue the Wrongful Discharge Action,             id. at 1229-30. Thus,

while we acknowledged that the employer had “played hardball litigation,”              id. at

1231, we also concluded that the employee, as a result of the shortcomings of his

counsel’s performance, was not “deserving of the court’s gentle hand of equity to

save him from his own settlement,”      id. at 1230.




7
       Specifically, counsel sent a proposed release and letter to the employer’s
counsel, both of which stated that the claims in the Wrongful Discharge Action
were not being released or dismissed as part of the settlement in the Overtime
Action, but the employer never executed the proposed release and its counsel
never responded to the letter.  Yapp , 186 F.3d at 1226 nn.2 & 3.

                                            -11-
       The teaching of Yapp is that “counsel ha[s] a duty to be vigilant to the

strategic nuances of litigation, which includes the ubiquitous multiple-litigation

pitfall of claim preclusion.”   Id. While the situation in   Yapp differed from the

situation in this case in that the claims in the two cases were linked by a common

transaction, we believe the grounds for affirming the district court’s claim

preclusion ruling are equally strong in this case. Most importantly, Watson and

Bushue pled Fourth Amendment claims based on the 1997 searches in their

original petition in Case No. 98CV2380, and the original petition was the

controlling pleading at the time they accepted and sought to enforce defendants’

settlement offer. Moreover, counsel for Watson and Bushue realized that the

settlement in Case No. 98CV2380 could have claim preclusion consequences in

this case as evidenced by the terms of the proposed counter release he tendered to

defendants’ counsel. And yet, after defendants refused to sign the proposed

counter release, counsel for Watson and Bushue did nothing in Case No.

98CV2380 to prevent the operation of claim preclusion in this case. Thus, in

accordance with Yapp , we affirm the district court’s claim preclusion ruling.

       2. Municipal Liability Ruling .

       At the close of plaintiffs’ case during the trial, the district court made an

oral ruling from the bench granting the City’s motion for judgment as a matter of

law under Rule 50(a), concluding that plaintiffs presented insufficient evidence to


                                            -12-
support municipal liability claims under § 1983. Plaintiffs claim the district court

erred in entering judgment as a matter of law in favor of the City, and they also

challenge the district court’s post-trial order denying their motion to alter or

amend the judgment entered in favor of the City. However, plaintiffs have failed

to provide this court with the portions of the trial transcript containing the district

court’s oral ruling on the Rule 50(a) motion. Instead, the record only contains

portions of the trial testimony of two witnesses, R., Case No. 99CV2106, Docs.

223, 227, and the latter transcripts are insufficient for purposes of reviewing the

propriety of the district court’s ruling on the municipal liability issue.

       Regardless of their pro se status, plaintiffs had an affirmative duty under the

Federal Rules of Appellate Procedure,      see Fed. R. App. P. 10(b)(2), and the rules

of this court, see 10th Cir. R. 10.1(A)(1)(a), 10.3(D)(1), and 28.2(A)(1), (2), to

provide a transcript of the district court’s oral ruling on the Rule 50(a) motion and

any other parts of the trial transcript that are necessary to review the court’s ruling

and the related sufficiency of the evidence issues.       See King v. Unocal Corp. , 58

F.3d 586, 587 (10th Cir. 1995);    McGinnis v. Gustafson , 978 F.2d 1199, 1201 (10th

Cir. 1992); see also Ogden v. San Juan County         , 32 F.3d 452, 455 (10th Cir. 1994)

(holding that “an appellant’s pro se status does not excuse the obligation of any

litigant to comply with the fundamental requirements” of the Federal Rules of

Appellate Procedure). Because plaintiffs have failed to provide this court with the


                                            -13-
necessary portions of the trial transcript, we affirm the entry of judgment in favor

of the City.

       3. Evidentiary Rulings .

       Plaintiffs are challenging the following evidentiary rulings of the district

court: (1) the exclusion of evidence pertaining to the state-court rulings regarding

the legality of the warrant issued in connection with the search in July 1997; (2)

the admission of videotapes that were taken during the subject searches; (3) the

exclusion of the “Lopez testimony”; and (4) the exclusion of evidence pertaining

to the settlement in Case No. 98CV2380.         8



       The district court issued oral rulings from the bench regarding the first three

matters, and plaintiffs have failed to provide this court with the portions of the

trial transcript containing the district court’s rulings.     9
                                                                  “The failure to file a

transcript . . . precludes review of the trial court’s evidentiary rulings.”        United

States v. Vasquez , 985 F.2d 491, 495 (10th Cir. 1993). The record does contain a


8
        In their reply brief, plaintiffs also argue that the district court erred in
excluding the “Jeskinia testimony.” Plaintiffs waived this issue by failing to raise
it in their opening brief.   See Stump v. Gates , 211 F.3d 527, 533 (10th Cir. 2000).
9
       The parties filed motions in limine regarding the first two matters, R., Case
No. 99CV3106, Vol. VI, Docs. 154, 161, and the district court conducted a
hearing regarding the motions on November 9, 2001. While the record contains a
transcript of the November 9, 2001 hearing, the transcript shows that the court
took the first two matters under advisement at that time, id. , Vol. VIII, Doc. 206,
at 47-48, 53-58, and plaintiffs have not submitted a transcript of the court’s
subsequent rulings on the first two matters.

                                               -14-
transcript of the district court’s ruling on the fourth matter. R., Case No.

99CV3106, Vol. VIII, Doc. 206 at 34-36. Having reviewed the transcript and the

related motion in limine filed by defendants,      id. , Vol. V, Doc. 147 at 9, we hold

that the district court did not abuse its discretion in excluding evidence pertaining

to the settlement in Case No. 98CV2380.

       4. Motion for New Trial .

       Plaintiffs have offered no substantive arguments on appeal regarding the

issues raised in their motion for a new trial. Plaintiffs have therefore waived the

issues. See Femedeer v. Haun , 227 F.3d 1244, 1255 (10th Cir. 2000).

       The judgment of the district court is AFFIRMED.


                                                         Entered for the Court


                                                         Michael W. McConnell
                                                         Circuit Judge




                                            -15-
