

                    [NOT FOR PUBLICATION]

               UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                        

No. 96-2113 

                      JOSEPH T. MUIGAI,
                 D/B/A C.M.S. CONSTRUCTION,

                    Plaintiff, Appellant,

                             v.

                 CITY OF PITTSFIELD, ET AL.,

                   Defendants, Appellees.

                                        

        APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Frank H. Freedman, Senior U.S. District Judge]

                                        

                           Before

                   Torruella, Chief Judge,
               Campbell, Senior Circuit Judge,
                 and Boudin, Circuit Judge.

                                        

Joseph T. Muigai on brief pro se.
Kathleen Alexander, City Solicitor, on brief for appellees.

                                        

                        June 5, 1997
                                        

     Per                     Curiam.                                                           Appellant Joseph Muigai appeals the district

court  judgment dismissing  his  civil rights  complaint  and

denying                    his                        request                               for                                   injunctive relief.  Essentially for the

reasons given  by the district  court in  its memorandum  and

order,                   dated                         July 17, 1996, we find Muigai's claim for damages

and injunctive relief against the City of Pittsfield and  its

employees  in  their  official  capacity  barred  under   the

principles of res judicata.  Muigai's previous suit in  state

court against the City  of Pittsfield arose "out of the  same

nucleus of operative  facts as his present suit and  [sought]

redress                    for                        essentially the same basic wrong.  [Thus,] the two

suits [advanced] the same cause of action notwithstanding any

difference                       in                         remedies                                  sought or theories of recovery pleaded."

Kale                                v.                    Combi                        ned Ins. Co. of America, 924 F.2d 1161, 1166 (1st

Cir.),  cert. denied,  502 U.S.  816 (1991).   Moreover,  the

employees, insofar as they were sued in an official capacity,

were                 in                    privity with Pittsfield and thus also protected by the

principles                       of                         res                                                        judicat                                   a.  See Seabrook v. New Hampshire, 738

F.2d 10, 11 (1st Cir. 1984).  

     However, we question whether the bar applies as well  to

his                claims                       against the employees in their individual capacity.

Precedent suggests otherwise.  Roy v. Augusta, 712 F.2d 1517,

1522                 (1st                      Cir. 1983) (prior suit against defendant in official

capacity does not  bar later suit  against same defendant  in

individual capacity); Gray  v. Lacke, 885 F.2d 399, 404  (7th

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Cir.                 1989)                       (same), cert. denied, 494 U.S. 1029 (1990); Headley

v.               Bacon                   ,                      828 F.2d 1272, 1279 (8th Cir. 1987) (same); see also

Frost v.  Thompson, 219 Mass. 360,  368, 106 N.E. 1009,  1011

(1914)                   (res                                              j                        udicata applies only if action is brought against

defendant  in same capacity  as in earlier  action).  In  any

event, the  district  court should  have dismissed  the  suit

against                    the                        employees in their individual capacity for lack of

personal  jurisdiction.  The  record  makes  clear  that  the

employees were never  properly served as required by Fed.  R.

Civ.                 P.                    4.                                               Furthermore, since the defense of lack of personal

jurisdiction                         was                            raised                                   in defendants' first responsive motion,

it was not waived.  Absent proper service or waiver  thereof,

the district  court lacked  the authority  to adjudicate  the

claim.  General Contracting &amp; Trading Co. v. Interpole  Inc.,

899                F.2d                     109, 114 (1st Cir. 1990).  This was true even though,

in  the  instant case,  the  judgment  was in  favor  of  the

defendants.  See Northwestern National Casualty Co. v. Global

Moving  &amp; Storage, Inc.,  533 F.2d 320,  323 (6th Cir.  1976)

("[T]he trial court  erred in entering  judgment in favor  of

[defendants]  before determining  that it  had the  requisite

personal jurisdiction.").

     The                     district                              court judgment is affirmed as to the City of

Pittsfield                       and                          the                              employees in their official capacity.  It is

vacated as to the employees in their individual capacity  and

the                case                     is                        remanded                                                              to                                   the district court with instructions to

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enter                  an                     order dismissing the complaint against these for lack

of personal jurisdiction.

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