                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-1949
                                    ___________

Roger Niere; Vivian McCallum,            *
                                         *
                    Appellants,          *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Missouri.
St. Louis County, Missouri,              *
                                         * [PUBLISHED]
                    Appellee.            *
                                         *
                                    ___________

                              Submitted: September 9, 2002

                                   Filed: September 30, 2002
                                    ___________

Before LOKEN, FAGG, and RILEY, Circuit Judges.
                            ___________

PER CURIAM.

       This is the second time we have been presented with a challenge to the
disincorporation of the City of Peerless Park, Missouri. In 1997, eighteen registered
voters filed a petition with St. Louis County to disincorporate Peerless Park. Peerless
Park had 27 registered voters at the time, so the 18 voters who signed the petition
formed the required two-thirds supermajority to disincorporate the small city by
petition under Missouri Statutes section 79.495 (2000). Finding the statutory
requirements were met, St. Louis County Council disincorporated the city. Soon
after, the former city and two former city officials challenged the disincorporation in
Missouri court on grounds that it was an impermissible boundary change and violated
federal due process law. The Circuit Court of St. Louis upheld the council’s decision
to disincoroporate Peerless Park, and the decision was affirmed on appeal. State ex
rel. City of Peerless Park v. Young, 988 S.W.2d 142, 142 (Mo. Ct. App. 1999).

       A group of unregistered voters then filed a civil rights action in federal court,
claiming disincorporation by petition rather than open election violated the First
Amendment and the Equal Protection Clause. The district court denied relief, finding
the plaintiffs failed to state claims upon which relief could be granted, the court
lacked jurisdiction under the Rooker-Feldman doctrine, and the suit was barred by
claim preclusion. We affirmed on appeal, finding the court lacked jurisdiction under
the Rooker-Feldman doctrine. Lemonds v. St. Louis County, 222 F.3d 488, 496 (8th
Cir. 2000), cert. denied, 531 U.S. 1183 (2001).

       In the present suit, two unregistered voters who were not parties to the state
lawsuit or the earlier federal lawsuit claim the disincorporation of Peerless Park by
petition was unconstitutional. The district court dismissed the suit as barred by the
Rooker-Feldman doctrine, claim preclusion, and because the plaintiffs failed to state
claims upon which relief could be granted. Niere and McCallum now appeal. In
many ways, this case is identical to the case decided in Lemonds. Because we must
establish jurisdiction before entertaining other issues, we begin by considering the
Rooker-Feldman doctrine and our earlier decision in Lemonds. Id. at 492 (reviewing
jurisdiction de novo).

       “The Rooker-Feldman doctrine recognizes that, with the exception of habeas
corpus petitions, lower federal courts lack subject matter jurisdiction over challenges
to state court judgments.” Id. at 492 (citing District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
416 (1923)). Lemonds considered and rejected the argument that the Rooker-Feldman

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doctrine could not be applied to litigants who were not parties to the earlier state
lawsuit. Lemonds, 222 F.3d at 495; see also T.W. & M.W. v. Brophy, 124 F.3d 893,
898 (7th Cir. 1997). “The key inquiry, as always, must be whether the federal
plaintiff’s interest in having a state rule set aside is inseparable from his interest in
upsetting a particular state court judgment based on that rule.” Lemonds, 222 F.3d
at 495. Because the requested relief -- setting aside the disincorporation by petition
of Peerless Park -- would “unwind the decision of the state court,” and because the
Lemonds appellants had ample opportunity to litigate in the state court proceeding,
Lemonds concluded the appellants’ federal claims were inextricably intertwined with
the state court judgment and the Rooker-Feldman bar applied. Id. at 496.

       The critical distinction between the Lemonds appellants and Niere and
McCallum, the appellants in this case, is that Niere and McCallum assert they did not
know about the state lawsuit and had no opportunity to litigate their claims in state
court. Because Niere’s and McCallum’s claims were dismissed on the pleadings, we
must assume these assertions are true. Schaller Tel. Co. v. Golden Sky Sys., Inc., 298
F.3d 736, 740 (8th Cir. 2002) (standard of review). Lemonds recognized that some
courts decline to apply Rooker-Feldman where federal plaintiffs lacked a reasonable
opportunity to litigate their claims in state court. Lemonds, 222 F.3d at 496; see also
Long v. Shorebank Dev. Corp., 182 F.3d 548, 557-58 (7th Cir. 1999); Valenti v.
Mitchell, 962 F.2d 288, 296 (3rd Cir. 1992); Wood v. Orange County, 715 F.2d 1543,
1546-48 (11th Cir. 1983). Other courts issuing opinions after Lemonds have agreed
that when plaintiffs lacked a reasonable opportunity to present their claims in an
earlier state proceeding, federal claims are not inextricably intertwined with the state
court judgment, and the Rooker-Feldman bar does not apply. Kropelnicki v. Siegel,
290 F.3d 118, 128 (2d Cir. 2002); Goodman ex rel. Goodman v. Sipos, 259 F.3d
1327, 1332 (11th Cir. 2001). The Lemonds appellants were former city officials who
had “ample opportunity” to bring their claims in state court. Lemonds himself
sponsored the bill to hire the attorney to litigate the state claims and received regular
reports on the state lawsuit’s progress. Lemonds, 222 F.3d at 496. The same cannot

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be said for Niere and McCallum. According to the complaint, Niere and McCallum
did not sit on their rights or await an adverse ruling in state court before presenting
their federal claims. Rather, Niere and McCallum were unaware of and uninvolved
in the state court litigation. Niere and McCallum attempted to join the earlier federal
suit in a third amended complaint, but were denied leave to do so. Neither the
Rooker-Feldman doctrine nor our earlier holding in Lemonds compels us to close the
doors of federal court to litigants like Niere and McCallum who were uninvolved
with earlier state court proceedings. Because Niere and McCallum lacked a
reasonable opportunity to litigate their claims in state court, the Rooker-Feldman
doctrine does not apply. We thus conclude we have jurisdiction.

       Although we have jurisdiction to consider this lawsuit, we nevertheless affirm
the dismissal of Niere’s and McCallum’s claims. The claims are barred by claim
preclusion and fail to state claims upon which relief can be granted.

       Under Missouri law, “[t]he doctrine of res judicata, or claim preclusion, bars
relitigation of the same cause of action by the same parties or privities in a case if the
two actions have the following common ‘identities:’(1) identity of the thing sued for;
(2) identity of the cause of action; (3) identity of the parties to the action; and (4)
identity of the quality of the person for or against whom the claim is made.”
Williams v. Finance Plaza, Inc., 78 S.W.3d 175, 183 (Mo. Ct. App. 2002) (quoting
State v. Polly, 2 S.W.3d 887, 893 (Mo. Ct. App. 1999)). The parties in the earlier
state lawsuit and the present lawsuit sued St. Louis County seeking to set aside the
disincorporation order, meeting the first and fourth elements. Niere and McCallum
label one claim Equal Protection, but in substance it speaks to notice and fair
opportunity to participate, which are traditionally due process arguments. Thus, to
the extent the claims labeled Equal Protection raise due process issues, the cause of
action is the same as the state court action, meeting the second element for claim
preclusion. Because claim preclusion prohibits splitting claims, claims arising out of
the same course of action that could have been brought in the state lawsuit are

                                           -4-
precluded from relitigation in the present suit. Chesterfield Village v. City of
Chesterfield, 64 S.W.3d 315, 318-19 (Mo. 2002) (en banc). Thus claim preclusion
bars appellants’ Equal Protection, First Amendment, and state law claims even though
they were not litigated in the state court case because these claims arise out of the
same disincorporation action. Id. Finally, although Niere and McCallum were not
parties to the state court case, Niere and McCallum were virtually represented by and
in privity with the state court plaintiffs, meeting the final element for claim preclusion
to apply. Virtual representation applies where litigation is public in nature and the
plaintiffs barred by res judicata had common interests with the actual litigants.
Seibert v. City of Columbia, 461 S.W.2d 808, 811 (Mo. 1971) (en banc). Here, the
interests of Niere and McCallum are so identical to the state court litigants that
common interest may be assumed to be the same; they seek to redress the same
common wrong – the disincorporation of their small city. Id. Like the district court,
we conclude the interests of Niere and McCallum and the state court litigants are so
closely intertwined that Niere and McCallum can fairly be considered to have had
their day in court on the due process issue. Lomax v. Sewell, 50 S.W.3d 804, 809
(Mo. Ct. App. 2001).

       In addition, the appellants fail to state claims upon which relief can be granted.
The Equal Protection claim and state law claims challenge the disincorporation as an
unfair election in which appellants were denied the right to vote. The challenged
action was, by definition, disincorporation by petition, not election. Signing a
petition is not entitled to the same protection as exercising the right to vote.
Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 296 (6th Cir. 1993).
The state law regulations governing elections do not apply to the challenged action.
Even if we adopted appellants’ argument that the petition served the purpose of an
election so we should analyze the disincorporation by petition as a denial of the right
to vote, the arguments are circular and without merit. Requiring voters to register
before voting (or signing a petition) is a legitimate, content-neutral method of
protecting the electoral system from fraud and abuse. Hoyle v. Priest, 265 F.3d 699,

                                           -5-
703-04 (8th Cir. 2001). We reject appellants’ argument that as unregistered voters,
they were treated differently than registered voters.

       Appellants’ First Amendment claim also fails. The First Amendment applies
only to state actors, and appellants’ rights have not been harmed by any governmental
action. Loce v. Time Warner Entm’t Advance/Newhouse P’ship, 191 F.3d 256, 266
(2d Cir. 1999). Missouri law did not prevent appellants from circulating any petition,
signing any petition, or objecting to any petition, thus did not limit the number of
voices conveying a political message or limit the size of the audience the message
could reach. See Buckley v. American Constitutional L. Found., Inc., 525 U.S. 182,
194-95 (1999).

      In sum, we affirm the dismissal of this lawsuit on the grounds of claim
preclusion and failure to state claims for which relief can be granted.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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