          United States Court of Appeals
                        For the First Circuit


No. 15-1467

                    HERIBERTO MEDINA-PADILLA;
          L & M CORP., d/b/a Emmanuel Travel and Tours,

                       Plaintiffs, Appellants,

                                  v.

              UNITED STATES AVIATION UNDERWRITERS, INC.;
                UNITED STATES AIRCRAFT INSURANCE GROUP,

                        Defendants, Appellees,

                  PIEDMONT AVIATION SERVICES, INC.,

                              Defendant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Domínguez, U.S. District Judge]


                                Before

                       Lynch, Selya, and Lipez,
                            Circuit Judges.


     Diana Lynn Pagán-Rosado on brief for appellants.
     Tomás A. Román-Santos and Román Santos, LLC on brief for
appellees.


                            March 4, 2016
             LYNCH, Circuit Judge.       This is the second time the

plaintiffs have brought the same claims before the federal courts.

This time, they characterize the claims as sounding in tort rather

than sounding in contract, as they had claimed earlier.     This they

cannot do.

             In 2005, Lopez & Medina Corp. ("L & M") brought suit

against a number of insurers, claiming that the insurers were

liable for L & M's breach of contract claims against a company,

Patriot Air, LLC ("Patriot Air"), that had an insurance policy

with those insurers.      In 2010, the district court dismissed the

case on the basis that the insurance policy did not provide

coverage for contract claims.     Lopez & Medina Corp. v. Marsh USA,

Inc., 694 F. Supp. 2d 119, 121 (D.P.R. 2010). This court affirmed.

López & Medina Corp. v. Marsh USA, Inc., 667 F.3d 58, 69 (1st Cir.

2012).

             L & M and its owner now bring tort-based claims arising

out of the same set of underlying facts.          The district court

dismissed the action on the ground of res judicata. Medina-Padilla

v. Piedmont Aviation Servs., Inc., No. 3:14-cv-01048, 2015 WL

1033918 (D.P.R. Mar. 10, 2015).      We affirm.

                                  I.

             The background facts and procedural history of this case

are recounted in detail in our previous opinion.       López & Medina




                                 - 2 -
Corp., 667 F.3d at 60–63.    We briefly recount the facts underlying

this appeal.

             On June 3, 2005, L & M filed a diversity complaint in

the District of Puerto Rico against a number of insurers1 for

Patriot Air.2    The complaint alleged that L & M had entered into a

Passenger Aircraft Charter Agreement with Patriot Air and that

Patriot Air had breached that agreement in June and July 2002.

But Patriot Air had filed for bankruptcy in September 2002, and

L & M did not name Patriot Air as a defendant.          Rather, the

complaint sought recovery from Patriot Air's insurers under Puerto

Rico's direct action statute, P.R. Laws Ann. tit. 26, § 2003, which

allows third parties to bring an action against an insurer for

claims covered under an insurance policy.

             On March 8, 2010, the district court dismissed L & M's

complaint.     Lopez & Medina Corp., 694 F. Supp. 2d at 121.     The

district court held that the relevant insurance policy "clearly

and unambiguously covers only tort claims."    Id. at 128.   L & M's



     1    Among the defendant co-insurers in that prior action
were United States Aviation Underwriters, Inc. ("USAUI") and
United States Aircraft Insurance Group ("USAIG"), the appellees in
this case. López & Medina Corp., 667 F.3d at 59 & n.1.

     2    The named insured under the insurance policy was
Piedmont Aviation Services, Inc. ("Piedmont").    López & Medina
Corp., 667 F.3d at 60 & n.4. The insurance policy covered certain
risks assumed by Piedmont in its contractual arrangements with
other companies; one such contractual arrangement was Piedmont's
lease of aircraft to Patriot Air. Id.


                                - 3 -
claims did not fall under the scope of the insurance policy because

of L & M's "admi[ssion] that the Complaint is premised only on a

breach of contract claim not involving any liability . . . for

torts."   Id.

            On March 18, 2010, L & M filed a motion to alter or amend

judgment.       L   &   M   argued   that   the   district   court   erred    in

understanding its complaint as advancing only a breach of contract

action and claimed that it was also seeking "concomitant tort

damages."

            The district court denied the motion.             Lopez & Medina

Corp. v. Marsh USA, Inc., No. 3:05-cv-01595, 2010 WL 1508502

(D.P.R. Apr. 12, 2010).              The district court noted that "the

Complaint does not once allege a tort violation and is entirely

based on the claim that the alleged breach of contract is a covered

insurable risk under the co-defendants' insurance policies."                 Id.

at *2.

            On January 26, 2012, this court affirmed. López & Medina

Corp., 667 F.3d at 69.         We first determined that "[t]here can be

no doubt that L & M's allegations here sound in contract."             Id. at

66.   We agreed with the district court that recovery by L & M

depended on whether the relevant insurance policy language, "which

usually covers only tort claims, also provides coverage for claims

in an underlying action arising out of and related to a contract

between the parties."         Id. at 59.      This was a question of first


                                      - 4 -
impression in our circuit, id., which we answered by concluding

that the insurance policy's "express terms . . . provide no

coverage for L & M's contract-based claims."        Id. at 69.

            On January 21, 2014, Heriberto Medina-Padilla and L & M,

undaunted, filed the complaint in this action.           Medina-Padilla,

who was not a plaintiff in the first lawsuit, was a travel agent

and the sole owner and principal of L & M.         The complaint sought

recovery    in   tort   for   Patriot   Air's   "negligent   refusal   and

withholding of transportation" arising from the same series of

events that underlay the previous suit's breach of contract claims.

            USAUI and USAIG moved to dismiss on the grounds of res

judicata and statute of limitations.            On March 10, 2015, the

district court granted the motion to dismiss on the ground of res

judicata.    Medina-Padilla, 2015 WL 1033918, at *1.

            This appeal followed.

                                    II.

            An affirmative defense such as res judicata may be raised

in a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) when the facts establishing the defense are clear on the

face of the plaintiff's pleadings.         See Santana-Castro v. Toledo-

Dávila, 579 F.3d 109, 113 (1st Cir. 2009); Nisselson v. Lernout,

469 F.3d 143, 150 (1st Cir. 2006).         Where a motion to dismiss is

premised on res judicata, we may take into account, in addition to

the well-pleaded facts in the complaint, the record in the original


                                   - 5 -
action.    Andrew Robinson Int'l, Inc. v. Hartford Fire Ins. Co.,

547 F.3d 48, 51 (1st Cir. 2008).       Our review is de novo.        García

Monagas v. de Arellano, 674 F.3d 45, 50 (1st Cir. 2012).

            Under   Semtek   International   Inc.   v.   Lockheed    Martin

Corp., "federal common law governs the claim-preclusive effect of

a dismissal by a federal court sitting in diversity."            531 U.S.

497, 508 (2001).    The appropriate rule under federal common law is

"the law that would be applied by state courts in the State in

which the federal diversity court sits," id., unless that rule

would be "incompatible with federal interests," id. at 509; see

also Hatch v. Trail King Indus., Inc., 699 F.3d 38, 44 (1st Cir.

2012).    With no argument made that Puerto Rico law is incompatible

with federal interests, we proceed in applying Puerto Rico law.3

            Under   Puerto    Rico's   statutory    definition      of   res

judicata, "it is necessary that, between the case decided by the

sentence and that in which the same is invoked, there be the most

perfect identity between the things, causes, and persons of the

litigants, and their capacity as such."        P.R. Laws Ann. tit. 31,

§ 3343.     This definition encompasses both claim preclusion and

issue preclusion, "albeit with slightly different requirements for




     3    For the purpose of res judicata, Puerto Rico, despite
its commonwealth status, is "the functional equivalent of a state."
Cruz v. Melecio, 204 F.3d 14, 18 n.2 (1st Cir. 2000); see also
García Monagas, 674 F.3d at 50.


                                  - 6 -
each."     R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 183 (1st

Cir. 2006).

            A party asserting claim preclusion under Puerto Rico law

must establish three elements: "(i) there exists a prior judgment

on the merits that is 'final and unappealable'; (ii) the prior and

current actions share a perfect identity of both 'thing' and

'cause'; and (iii) the prior and current actions share a perfect

identity of the parties and the capacities in which they acted."

García Monagas, 674 F.3d at 51.

            All three elements are met here.      First, the prior

district court decision, affirmed by this court, is a final

judgment on the merits.

            Second, there is a perfect identity of "thing" and

"cause."    Two actions share a perfect identity of "thing" if they

involve the same "object or matter."    García Monagas, 674 F.3d at

51 (quoting Lausell Marxuach v. Díaz de Yáñez, 3 P.R. Offic. Trans.

742, 745 (1975)).    Two actions share a perfect identity of "cause"

if "they flow from the same principal ground or origin," id.

(citing Lausell Marxuach, 3 P.R. Offic. Trans. at 746), or they

"derive from a common nucleus of operative facts," id. (quoting

Silva v. City of New Bedford, 660 F.3d 76, 79 (1st Cir. 2011)).

These requirements are met.     The complaint in this case and the

complaint in the prior action are based on the same factual

predicates.    "[A] mere difference in the legal theories on which


                                - 7 -
two causes of action are grounded does not destroy the identity of

thing or cause that otherwise exists between two suits arising out

of a common nucleus of operative fact."    R.G. Fin. Corp., 446 F.3d

at 184.

            Third, there is perfect identity of the parties.   Under

Puerto Rico law, two actions share a perfect identity of the

parties "if either (1) the parties in the current action were also

parties in the prior action or (2) the parties in the current

action are in 'privity' with the parties in the prior action."

García Monagas, 674 F.3d at 51 (citing P.R. Laws Ann. tit. 31,

§ 3343).    The prior suit was brought by L & M; this suit is brought

by L & M and Medina-Padilla, the sole owner and principal of L & M

who was not a named party in the prior suit.      But L & M does not

contest that it and Medina-Padilla are in privity under "the

general rule that where one party acts for or stands in the place

of another in relation to a particular subject matter, those

parties are in privity for purposes of the Puerto Rico preclusion

statute."    R.G. Fin. Corp., 446 F.3d at 187.

            Rather than contesting that any of those three prongs

are met, L & M argues that its suit should be permitted to proceed

based on two supposed exceptions to res judicata.

            First, L & M argues that the defendants took inconsistent

positions during the prior litigation that prevented the prior

action from being fully and fairly litigated.       But the district


                                - 8 -
court in the prior action, correctly, as we held, rejected L & M's

contract claim on the merits and rejected on the merits its

argument that a tort cause of action had also been pleaded.                  Lopez

& Medina Corp., 694 F. Supp. 2d at 128.                      Nothing about the

defendants' alleged "inconsistent procedural conduct" calls the

fairness of those decisions into doubt.4

                Second, L & M argues that our 2012 decision changed the

applicable law so as to make available a tort cause of action that

had not been available when it initiated the prior lawsuit.                   That

is   a       misstatement   of   our   decision.     After   all,   our    opinion

recognized that the insurance policy "usually covers only tort

claims" and went on to decide, as a matter of first impression,

whether the insurance policy also covered contract claims against

the insured.         López & Medina Corp., 667 F.3d at 59.                In other

words, our 2012 decision took as a given that tort actions were

covered by the insurance policy.                Nothing prevented L & M from

pleading a tort cause of action in its 2005 complaint.                     Indeed,

L & M attempted to add a claim for recovery in tort to its complaint

in the previous action, but did so only belatedly, in its 2010

motion to alter or amend judgment.                 That action by L & M cuts




         4L & M also labels this as a judicial estoppel argument.
However, we do not address judicial estoppel because L & M makes
no effort to develop the argument. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).


                                        - 9 -
against its argument that a tort cause of action was not available

until 2012.

          Pouring old wine into a new bottle does not make the

wine into new wine.    The district court correctly invoked res

judicata in dismissing the action.5

          We affirm.




     5    Having concluded as such, we need not address the
parties' arguments about whether this action is barred by the
statute of limitations.


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