                                  ___________

                                  No. 95-3697
                                  ___________

Sheri Lommen,                         *
                                      *
                     Appellant,       *
                                      *   Appeal from the United States
      v.                              *   District Court for the
                                      *   District of North Dakota.
City of East Grand Forks;             *
Vernon Rasmussen,                     *
                                      *
                     Appellees.       *

                                  ___________

                     Submitted:   June 14, 1996

                         Filed:   October 3, 1996
                                  ___________

Before BOWMAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

                                  ___________

JOHN R. GIBSON, Circuit Judge.

      Sheri Lommen appeals from the decision of the United States
District Court1 for the District of North Dakota granting summary judgment
to Vernon Rasmussen and the City of East Grand Forks, Minnesota.          The
district court applied res judicata and full faith and credit to a judgment
of a Minnesota state court that dismissed Lommen's claim on the basis of
official immunity.   Lommen argues that the district court's judgment is not
barred because: (1) the Minnesota state court judgment was not final; (2)
the state court judgment was not on the merits; (3) the state court
judgment need not be so recognized because it frustrates the law and public
policies of North Dakota; and (4) she is not foreclosed from




  1
   The Honorable Rodney S. Webb, United States District Judge for
the District of North Dakota.
litigating under North Dakota law the issues that were not litigated in the
Minnesota case.      In addition, Lommen asserts further arguments based on
choice of law issues.      Finally, Lommen argues that the court denied equal
protection to her by treating other plaintiffs in the same collision
differently.     We affirm.


      Lommen was a passenger in the rear seat of a 1983 Camaro that was
stopped at an intersection in Grand Forks, North Dakota.                 As the Camaro
started forward when the stoplight changed, a pickup truck sped through the
intersection.     A patrol car, driven by Officer Rasmussen of the East Grand
Forks, Minnesota Police Department, was pursuing the pickup truck.                  The
patrol car struck the rear quarter of the Camaro, and Lommen suffered
injuries when she was thrown through the rear window of the Camaro.


      Lommen brought an action in a Minnesota state trial court against
Rasmussen and the City of East Grand Forks alleging Rasmussen's negligence.
On motion for summary judgment, the state trial court held that official
immunity applied, thus shielding Rasmussen and the City from liability.
It further observed the existence of discretionary function immunity under
the   law   of   North   Dakota,   but   found   it   unnecessary   to    resolve   the
application of this law because Minnesota law should be applied.                Lommen
appealed, and the Court of Appeals of Minnesota affirmed in a 2-1 decision,
applying essentially the same analysis employed by the trial court.             Lommen
then filed a petition for review to the Supreme Court of Minnesota.                 The
court granted the petition, but some months thereafter determined that the
order was improvidently granted and dismissed the appeal.


      Five days after the Minnesota Court of Appeals decision, Lommen filed
a complaint in the United States District Court for the District of North
Dakota asserting essentially the same claims against Rasmussen and the City
of East Grand Forks.       After the decision of the Minnesota Supreme Court
that dismissed Lommen's




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appeal, the district court granted summary judgment on the basis that the
doctrines of res judicata and full faith and credit required that the
judgment of the Minnesota state courts be given preclusive effect.


     We review the district court's grant of summary judgment de novo.
Conner v. Reckitt & Colman, Inc., 84 F.3d 1100, 1102 (8th Cir. 1996).
Summary judgment is appropriate if there are no disputed issues of material
fact thereby entitling both the City of East Grand Forks and Rasmussen to
judgment as a matter of law.    Fed. R. Civ. P. 56(c).


     The Full Faith and Credit Statute, 28 U.S.C. § 1738 (1994), requires
that federal courts give state court judgments the same preclusive effect
that such a judgment would be given in the courts of the state rendering
the judgment.   Allen v. McCurry, 449 U.S. 90, 96 (1980); Kremer v. Chemical
Constr. Corp., 456 U.S. 461, 466 (1982); Tolefree v. City of Kansas City,
980 F.2d 1171, 1173-74 (8th Cir. 1992), cert. denied, 510 U.S. 905 (1993).
Section 1738 does not permit federal courts to apply their own rules to
determine the effect of state court judgments, but instead mandates that
a federal court implement the preclusion rules of the state from which the
judgment originated.   Kremer, 456 U.S. at 482; Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).   We therefore look to Minnesota
law to determine the preclusive effect of the judgment of the Minnesota
state courts.


          Under Minnesota law, "[t]he doctrine of res judicata exists in
order to relieve parties of the burden of relitigating issues already
determined in a prior action, that a party may not be `twice vexed for the
same cause.'"   Beutz v. A.O. Smith Harvestore Prods., Inc., 431 N.W.2d 528,
531 (Minn. 1988) (quoting Shimp v. Sederstrom, 233 N.W.2d 292, 294 (Minn.
1975)).    Application of the doctrine of res judicata "constitutes an
absolute bar to a second suit for the same cause of action, and is
conclusive between




                                    -3-
parties and privities, not only as to every matter which was actually
litigated, but also as to every matter which might have been litigated,
therein."     Demers v. City of Minneapolis, 486 N.W.2d 828, 830 (Minn. Ct.
App. 1992) (quoting Beutz, 431 N.W.2d at 531).            The doctrine of res
judicata applies when three requirements have been met:         (1) there is a
final judgment on the merits; (2) the second suit consists of the same
cause of action; and (3) the parties involved in both suits are the same
parties or parties in privity.       Id. at 830.


       Lommen's first suit, filed in a Minnesota state trial court, was
brought against Rasmussen and the City of East Grand Forks alleging
Rasmussen's negligence.     Lommen's second suit, filed in a federal district
court in North Dakota, asserted essentially the same claims against
Rasmussen and the City of East Grand Forks as Lommen had asserted in the
Minnesota state court.      Thus, elements two and three of the above test are
easily satisfied.


       Lommen argues, however, that there was no final judgment on the
merits,   because the state court judgment dismissed the action on a
governmental immunity defense.      Lommen bases her argument on Wade v. City
of Pittsburgh, 765 F.2d 405 (3d. Cir. 1985).        In Wade, a plaintiff first
sued the City of Pittsburgh for negligence in state court.     The plaintiff's
claims were based solely on negligence and did not refer to the Civil
Rights Acts.     Id. at 407.    The state court applied Pennsylvania law that
provided for immunity for municipalities and granted summary judgment to
Pittsburgh.    Id.   Plaintiff then filed a suit in federal court against the
police officers, as well as the city, for alleged violations of the federal
Civil Rights Acts.    Id.    In Wade, the Third Circuit was required to apply
the Pennsylvania law of res judicata.     Id.   After a careful analysis of the
law of Pennsylvania, the court concluded that if a judgment is entered
prior to the development of the merits and is based on a collateral defense
applicable only to the first suit, res judicata would not apply.        Id. at
410.   The Third




                                       -4-
Circuit held, therefore, that the plaintiff's claims based on federal law
were not barred by the doctrine of res judicata because the judgment of the
state court was not based on a factual development of the occurrence, but
on a statutory immunity--a defense having no application to the wrongdoing
of the city or the injury sustained by the plaintiff.    Id. at 410.


     Lommen argues that as in Wade, the state court dismissal of her case
was not based on a factual development of the automobile accident at issue,
but on statutory immunity grounds.        According to Lommen, because the
defense at issue in the first suit was collateral, the judgment was not on
the merits.   We reject this argument.    In this case the Pennsylvania law
of res judicata is not   controlling, but rather the Minnesota law of res
judicata.   Under the Minnesota Rules of Civil Procedure, a judgment based
upon an order for dismissal constitutes a final adjudication on the merits.
Specifically, Rule 41.02(c) states:


     Unless the court specifies otherwise in its order, a dismissal
     pursuant to this rule and any dismissal not provided for in
     this rule or in Rule 41.01, other than a dismissal for lack of
     jurisdiction, for forum non conveniens, or for failure to join
     a party indispensable pursuant to Rule 19, operates as an
     adjudication upon the merits.

Minn. R. Civ. P. 41.02(c).      In this case, the Minnesota state court's
judgment explicitly stated that Lommen's action was "dismissed with
prejudice and on its merits."    In addition, a Minnesota appellate court
previously has recognized that a final adjudication on the merits existed
where summary judgment had been granted in a prior suit against the
plaintiffs because the defendants were entitled to quasi-judicial immunity.
Myers v. Price, 463 N.W.2d 773, 776-77 (Minn. Ct. App. 1990).   Whether the
judgment was based on rejection of Lommen's claim, or acceptance of an
affirmative defense, is irrelevant.




                                    -5-
     Lommen's additional arguments are without merit and do not warrant
further discussion.


     We affirm the district court's grant of summary judgment in favor of
Rasmussen and the City of East Grand Forks.


     A true copy.


           Attest:


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




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