                         NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit

                                        2006-1211


                         CITIZEN ELECTRONICS COMPANY, LTD.,

                                                      Plaintiff-Appellant,

                                             v.


                              OSRAM GMBH and
                      OSRAM OPTO SEMICONDUCTORS GMBH,

                                                      Defendants-Appellees.


       Steven P. Weihrouch, Oblon, Spivak, McClelland, Maier & Neustadt, P.C., of
Alexandria, Virginia, argued for plaintiff-appellant. With him on the brief were Richard D.
Kelly and Alexander E. Gasser. Of counsel was Kenneth D. Wilcox.

      Charles H. Sanders, Fish & Richardson P.C., of Boston, Massachusetts, argued for
defendants-appellees. With him on the brief were Alan D. Smith and Christopher D.
Agnew. Also on the brief was Christian A. Chu, of Washington, DC.

Appealed from: United States District Court for the District of Columbia

Judge Ellen S. Huvelle
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                        2006-1211



                      CITIZEN ELECTRONICS COMPANY, LTD.,

                                                               Plaintiff-Appellant,

                                             v.

                              OSRAM GMBH and
                      OSRAM OPTO SEMICONDUCTORS GMBH,

                                                               Defendants-Appellees.


                            __________________________

                              DECIDED: March 29, 2007
                            __________________________



Before MICHEL, Chief Judge, LOURIE and BRYSON, Circuit Judges.

MICHEL, Chief Judge.

       Citizen Electronics Company, Ltd. (“CE”) appeals from a final order of the United

States District Court for the District of Columbia dismissing its declaratory judgment

(“DJ”) complaint against OSRAM GmBH and OSRAM OPTO Semiconductors GmBH

(collectively, “OSRAM”) for lack of subject matter jurisdiction.     Citizen Elecs. Co. v.

OSRAM GmBH, No. 05-1560 (D.D.C. Dec. 20, 2005) (“Citizen II”). The district court

held that CE’s DJ complaint was barred under the doctrine of res judicata because CE

had already litigated the issue of subject matter jurisdiction in Citizen Electronics Co. v.
OSRAM GmBH, 377 F. Supp. 2d 149 (D.D.C. 2005) (“Citizen I”). Because the district

court correctly determined that it lacked subject matter jurisdiction over CE’s DJ

complaint, we affirm.

                                     INTRODUCTION

       CE and OSRAM are competitors in the field of white light emitting diode (“white

LED”) technology. OSRAM is the owner or assignee of U.S. Patent Nos. 6,066,861,

6,245,259, 6,277,301, 6,576,930, 6,592,780, 6,613,247, and 6,812,500, all directed to

white LED technology. On January 18, 2005, CE filed an action against OSRAM for a

declaratory judgment that its white LEDs did not infringe upon OSRAM’s patents, or that

the patents were invalid.

       On April 27, 2005, OSRAM filed a motion to dismiss the DJ action under Fed. R.

Civ. P. 12(b)(1) for lack of subject matter jurisdiction. In its motion, OSRAM stated that

“[i]n response to Citizen’s provoking a fight by filing this surprise declaratory judgment

action, OSRAM has taken action to protect its patent rights in Europe.” Specifically, on

March 14, 2005, OSRAM filed a patent infringement case against CE in Germany on

related foreign patents directed to white LED technology. On July 14, 2005, the district

court ruled in favor of OSRAM, dismissing CE’s DJ action. Citizen I, 377 F. Supp. 2d at

157.   The district court held that CE failed to prove that there was an “actual

controversy” under the Declaratory Judgment Act, 28 U.S.C. § 2201(a), on January 18,

2005, the time the suit was filed. While noting that OSRAM had filed suit in Germany

against CE, the district court nonetheless found it to be irrelevant since this event

occurred after the filing of CE’s complaint. Citizen I, 377 F. Supp. 2d at 155 n.7. CE did

not appeal the district court’s decision.




2006-1211                                   2
       On August 2, 2005, CE filed a second DJ action against OSRAM. 1 To support its

allegation of an “actual controversy,” CE reiterated the events allegedly leading to an

“actual controversy” in its first complaint and listed the following “new” facts for

consideration by the district court: (1) that on May 2, 2005, OSRAM issued a report on

its website describing the action against CE in Germany; and (2) also on May 2, 2005,

OSRAM issued a press release mentioning action taken by OSRAM in the International

Trade Commission pursuant to Section 337 of the Tariff Act of 1940 seeking to exclude

from entry into the U.S. certain white LEDs manufactured, imported, or sold by another

company, Dominant Semiconductors, and stating, “Our objective in taking legal action

against Citizen and issuing warnings to Dominant is to prevent unauthorized use of our

technology.”

       In response to the second DJ complaint, OSRAM again filed a motion to dismiss

for lack of subject matter jurisdiction, arguing that the new facts in the second complaint

were barred from consideration by the district court under the principles of res judicata.

CE filed an amended complaint on November 11, 2005, adding the fact that OSRAM’s

German complaint was formally served on CE under the Hague Convention on

September 28, 2005.

       On December 20, 2005, the district court ruled in favor of OSRAM and dismissed

CE’s second DJ action. In its opinion, the district court first acknowledged that the case

presented a “novel issue of whether jurisdictional facts that occurred after plaintiff filed

its first suit but prior to the Court’s dismissal of that suit may be relied on in a second

suit to cure the jurisdictional defect.” Citizen II, slip op. at 3. Relying on the decisions



       1
               CE’s second DJ action did not include U.S. Patent No. 6,812,500.


2006-1211                                    3
made by the Court of Appeals for the District of Columbia Circuit in Dozier v. Ford Motor

Co., 702 F.2d 1189, 1191 (D.C. Cir. 1983) and GAF Corp. v. United States, 818 F.2d

901, 912-13 (D.C. Cir. 1987), the district court held that CE was estopped under the

doctrine of res judicata from relying on events prior to July 14, 2005—the dismissal date

of CE’s first DJ action—as evidence of an “actual controversy.” Since the district court

refused to consider any facts known prior to its dismissal of the first DJ action, the only

event that it considered with regard to the second DJ action was service of process,

which the court found to be insufficient to cure the jurisdictional defect. Citizen II, slip

op. at 8.

       This appeal followed.      This court has jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(1).

                                      DISCUSSION

       We review a district court’s application of res judicata de novo, Shell Petroleum,

Inc. v. United States, 319 F.3d 1334, 1338 (Fed. Cir. 2003), but apply the law of the

pertinent regional circuit. Epic Metals Corp. v. H.H. Robertson Co., 870 F.2d 1574,

1576 (Fed. Cir. 1989).

       It is well settled that the principles of res judicata 2 apply to questions of

jurisdiction as well as to other issues. American Sur. Co. v. Baldwin, 287 U.S. 156, 166

(1932); see also Underwriters Nat’l Assurance Co. v. N. C. Life & Accident & Health Ins.

Guar. Ass’n, 455 U.S. 691, 706 (1982). In the District of Columbia Circuit, a prior

dismissal for lack of subject matter jurisdiction precludes relitigation of the same



       2
               The parties agree that res judicata is an umbrella term covering two types
of preclusive effects of judgments: claim preclusion and issue preclusion. The type of
res judicata invoked by the district court here is issue preclusion.


2006-1211                                    4
jurisdictional issue in a later suit, unless the doctrine of “curable pleading defects”

applies. Dozier, 702 F.2d at 1191. “The ‘curable defect’ exception applies where a

‘precondition requisite’ to the court’s proceeding with the original suit was not alleged or

proven, and is supplied in the second suit—for example, the Government’s filing of an

affidavit of good cause in a denaturalization proceeding, proper service of process, or

residency adequate to invoke diversity jurisdiction.”         Id. at 1192 (internal citations

omitted). Here, CE alleges that the events subsequent to its January 18, 2005 filing

date, i.e., OSRAM’s filing of a patent infringement suit against CE in Germany on March

14, 2005, OSRAM’s website report and press release of May 2, 2005, and service of

process on September 28, 2005, cure any jurisdictional defect that CE may have had in

its first DJ action. In contrast, OSRAM argues that CE is estopped from relying in the

second DJ complaint on events that occurred before dismissal of CE’s first DJ action on

July 14, 2005 as supporting an allegation of an “actual controversy.”

       Although CE contends on appeal that Federal Circuit law applies, its argument

on this point is precluded by its agreement below that D.C. Circuit law applies. Under

D.C. Circuit law, the “curable defect” doctrine is limited to events that occur after the

original dismissal for lack of jurisdiction, here July 14, 2005. Id. at 1192 n.4. As the

district court correctly observed, Dozier explicitly holds that “a plaintiff cannot relitigate a

jurisdictional dismissal by relying upon those facts that existed at the time of the first

dismissal.” Citizen II, slip op. at 6 (citing Dozier, 702 F.2d at 1192 n.4). Here, the

German suit of March 14, 2005 and OSRAM’s statements of May 2, 2005 existed at the

time of dismissal of CE’s first DJ action. Therefore, CE is estopped from relying on

these events as supporting an “actual controversy” in its August 2, 2005, second DJ




2006-1211                                      5
complaint.

       CE points to GAF Corp., 818 F.2d at 912-13, as evidence that later D.C. Circuit

decisions undermine the holding of Dozier. However, the D.C. Circuit explicitly stated in

GAF Corp., “A claim of jurisdiction is not precluded if, however, in the interim

subsequent to the initial dismissal there are developments tending to ‘cure’ the

jurisdictional deficiency identified in the first suit.”   GAF Corp., 818 F.2d at 912-13

(emphasis added). Thus, CE’s argument must fail.

       Finally, CE argues that D.C. Circuit law conflicts with Federal Circuit standards

for DJ actions purportedly espoused in Arrowhead Industrial Water, Inc. v. Ecolochem,

Inc., 846 F.2d 731, 734 (Fed. Cir. 1988) and GAF Building Materials Corp. v. Elk Corp.

of Dallas, 90 F.3d 479, 483 (Fed. Cir. 1996). Specifically, CE asserts that our decisions

in these cases would have precluded CE from filing an amended complaint prior to the

district court’s first dismissal on July 14, 2005. We decline to read these cases as

creating a conflict with D.C. Circuit law or even relevant here, as neither GAF Building

Materials nor Arrowhead are directed to issue preclusion or res judicata in general.

Assuming they were relevant, to the extent that a conflict may exist our precedent

clearly requires us to follow D.C. Circuit law, not Federal Circuit law.

       Since CE was estopped from relying on the events of March 14, 2005 and May 2,

2005, the district court did not err in holding that service of process did not cure its lack

of subject matter jurisdiction over CE’s DJ action.




2006-1211                                     6
