                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 07 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


K. H., as guardian for her minor daughter        No.    16-35906
D.H.; K. H., individually; G. H.,
individually,                                    D.C. No. 3:16-cv-05507-BHS

              Plaintiffs-Appellants,
                                                 MEMORANDUM*
 v.

OLYMPIA SCHOOL DISTRICT, a public
corporation; FREDERICK DAVID
STANLEY, individually; BARBARA
GREER, individually; WILLIAM V.
LAHMANN, individually,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                             Submitted June 5, 2018**
                               Seattle, Washington




      *
             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).
Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON,*** District
Judge.

      Plaintiffs appeal the district court’s dismissal of their complaint as barred by

res judicata. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the

district court’s dismissal of plaintiffs’ complaint de novo. Intri-Plex Techs., Inc. v.

Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). We affirm.

      Plaintiffs allege that an Olympia School District bus driver sexually abused

their minor daughter. Plaintiffs first sued the School District in Washington state

court, asserting claims for negligence and negligent infliction of emotional distress.

Following a jury trial, the Washington court entered judgment for the School

District. Plaintiffs then filed the instant action in federal court against the School

District and three of its employees, Frederick Stanley, Barbara Greer, and William

Lahmann (named in their official and personal capacities). Plaintiffs’ federal

complaint asserted claims under 42 U.S.C. § 1983 and Title IX arising out of the

same events as their prior state court complaint.

      We apply Washington law to determine the preclusive effect of the

Washington court’s judgment. See, e.g., Sewer Alert Comm. v. Pierce County, 791

F.2d 796, 798–99 (9th Cir. 1986). Under Washington law, “[r]es judicata refers to


      ***
            The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
                                            2
the preclusive effect of judgments, including the relitigation of claims and issues

that were litigated, or might have been litigated, in a prior action.” Loveridge v.

Fred Meyer, Inc., 887 P.2d 898, 900 (Wash. 1995) (en banc) (quotation marks

omitted). “For the doctrine to apply, a prior judgment must have a concurrence of

identity with a subsequent action in (1) subject matter, (2) cause of action, and (3)

persons and parties, and (4) the quality of the persons for or against whom the

claim is made.” Id.; accord Rains v. State, 674 P.2d 165, 168 (Wash. 1983) (en

banc).

         All four elements of res judicata are met with respect to plaintiffs’ claims

against the School District: in both the prior and present actions, plaintiffs’ claims

against the School District rested on the School District’s employees’ conduct

regarding school-bus safety, arose from the same transactional nucleus of fact, and

implicated the same evidence and rights. Accordingly, res judicata bars plaintiffs’

claims against the School District. See, e.g., Ensley v. Pitcher, 222 P.3d 99,

102–06 (Wash. Ct. App. 2009).

         “Official-capacity suits . . . ‘generally represent only another way of

pleading an action against an entity of which an officer is an agent.’” Kentucky v.

Graham, 473 U.S. 159, 165–66 (1985) (quoting Monell v. N.Y.C. Dep’t of Soc.

Servs., 436 U.S. 658, 690 n.55 (1978)). Because plaintiffs’ claims against the


                                             3
School District are barred by res judicata, their claims against the School District’s

employees in their official capacities are also barred. See Sewer Alert Comm., 791

F.2d at 799.

      Plaintiffs’ claims against the School District’s employees in their personal

capacities rest on the same allegations as the foregoing claims and likewise share

identity of subject matter and cause of action with the prior state court action.

With respect to the final two elements of res judicata, Washington law provides

that “a person must be a party or in privity to a party in [the prior] litigation action

before that person can be bound by its results.” Loveridge, 887 P.2d at 903. “The

employer/employee relationship is sufficient to establish privity.” Ensley, 222

P.3d at 104. Because the prior action against the School District turned on the

School District’s employees’ conduct surrounding the same events at issue here,

Stanley, Greer, and Lahmann were in privity with the School District, and

plaintiffs’ claims against them in their personal capacities are barred by res

judicata. See Kuhlman v. Thomas, 897 P.2d 365, 368–69 (Wash. Ct. App. 1995).

      Plaintiffs did not seek leave to amend their complaint from the district court,

and any amendment would be futile. The district court did not abuse its discretion

in dismissing plaintiffs’ complaint with prejudice. See, e.g., Chinatown

Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1141 (9th Cir. 2015).


                                            4
AFFIRMED.




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