                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           APR 18 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

RICHARD CHUDACOFF, M.D.,                         No. 11-16232

              Plaintiff - Appellant,             D.C. No. 2:09-cv-01679-RCJ-RJJ

  v.
                                                 MEMORANDUM *
UNIVERSITY MEDICAL CENTER;
STEVE SISOLAK; TOM COLLINS;
LARRY BROWN; LAWRENCE
WEEKLY; CHRIS GIUNCHIGLIANI;
SUSAN BRAGER; RORY REID;
MEDICAL AND DENTAL STAFF OF
THE UNIVERSITY MEDICAL CENTER
OF SOUTHERN NEVADA; KATHLEEN
SILVER; JOHN ELLERTON, M.D.;
FREDERICK LIPPMANN; JIM
CHRISTENSEN; CHARLES BLOOM;
MARIETTA NELSON; J. DYLAN
CURRY; KSHAMA DAPHTARY;
BOARD OF TRUSTEES OF
UNIVERSITY MEDICAL CENTER OF
SOUTHERN NEVADA; JOHN
ONYEMA; BEVERLY NEYLAND;
ALBERT CAPANNA; VICTOR
GRIGORIEV; LAURA BILODEAU;
MICHAEL CASEY; STEVEN BECKER,

              Defendants - Appellees.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                             for the District of Nevada
                 Robert Clive Jones, Chief District Judge, Presiding

                      Argued and Submitted January 18, 2013
                            San Francisco, California

Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.

      Richard Chudacoff appeals from the district court’s judgment of dismissal

and summary judgement on his due process claims1 against the University Medical



      1
         Chudacoff’s notice of appeal only mentioned the district court’s denial of
his motion for reconsideration, not the district court’s order dismissing his due
process claims. Although the Federal Rules of Appellate Procedure require that a
notice of appeal “designate the judgment, order, or part thereof being appealed,”
Fed. R. App. P. 3(c)(1)(B), we have held that “[w]hen . . . a party seeks to argue
the merits of an order that does not appear on the face of the notice of appeal, we
generally consider two factors: (1) whether the intent to appeal a specific judgment
can be fairly inferred and (2) whether the appellee was prejudiced by the mistake,”
Lolli v. Cnty. of Orange, 351 F.3d 410, 414 (9th Cir. 2003) (internal quotation
marks and alteration omitted). Where “a party appeals after its motion for
reconsideration was denied,” we have “frequently” inferred intent to appeal the
underlying dispositive order. Id. We have made such an inference, and also found
a lack of prejudice to appellees, where the appellant offers a “full discussion of the
[underlying dispositive] order in his opening appellate brief” and the appellees
provide a “detailed response” that “dispose[s] of any claims that [the appellees]
were misled or harmed.” Id. at 414–15. This describes our situation here, so we
review the district court order dismissing Chudacoff’s due process claims, not only
the denial of the motion for reconsideration. In light of our disposition with regard
to the order dismissing the claims, Chucadoff’s challenge to the denial of the
motion for reconsideration is moot.

                                           2
Center of Southern Nevada (“UMC”), UMC Chief Executive Officer Kathleen

Silver, the UMC Board of Trustees (“Board”), the UMC Medical and Dental Staff

(“Medical Staff”), and various individual doctors.2 The claims against UMC,

Silver, the Board, and the Medical Staff were dismissed by the district court based

on claim preclusion. The district court dismissed the claims against the individual

doctors based on issue preclusion. We have jurisdiction under 28 U.S.C. § 1291.

We review dismissals based on both claim preclusion and issue preclusion de

novo. San Remo Hotel L.P. v. San Francisco City & Cnty., 364 F.3d 1088, 1094

(9th Cir. 2004); W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir.

1997). We reverse all of the appealed dismissals, except as noted,3 and remand for

further proceedings.

                                          I




      2
        The district court also dismissed Chudacoff’s due process claims against
the UMC Medical Executive Committee, but Chudacoff does not cogently appeal
this dismissal, so we do not consider it.
      3
         At oral argument, we were advised that J. Dylan Curry and Chudacoff had
agreed that Curry could be dismissed from this appeal with prejudice as to any and
all claims asserted against Curry as an individual or in his capacity as a member of
the Medical Staff. Chudacoff’s due process claims are thus DISMISSED to the
extent they are against Curry individually or in his capacity as a member of the
Medical Staff.

                                          3
      Where, as here, federal-court jurisdiction is based on the presence of a

federal question, federal preclusion doctrine applies. See Taylor v. Sturgell, 553

U.S. 880, 891 (2008); see also Heiser v. Woodruff, 327 U.S. 726, 733 (1946). The

district court erred in concluding that Nevada preclusion law was not materially

different from federal preclusion law and then proceeding to apply Nevada law

that, at least as applied by the district court, does differ from federal law.

                                            II

      Under federal law, there must be an “identity of claims” for a claim to be

barred by claim preclusion. W. Radio Servs., 123 F.3d at 1192. The most

important factor in determining whether there is an identity of claims is whether

the two actions “arise out of the same transactional nucleus of facts.” Fund for

Animals, Inc. v. Lujan, 962 F.2d 1391, 1398 (9th Cir. 1992) (quoting C.D.

Anderson & Co. v. Lemos, 832 F.2d 1097, 1100 (9th Cir. 1987)). Here,

Chudacoff’s claims in the action currently before this court (“Chudacoff II”) arise

out of events that are almost wholly separate from the events from which his

claims in his first action (“Chudacoff I”) arose. The fact that some of the events

from which the claims in Chudacoff II arise occurred prior to entry of judgment in

Chudacoff I does not dictate dismissal based on claim preclusion. Lawlor v.

National Screen Service Corp., 349 U.S. 322 (1955), is not to the contrary. In that


                                            4
case, though the Court held that claims arising prior to the entry of a prior

judgment were barred, there were no claims arising from events that occurred

between the filing of the first complaint and the entry of the first judgment. Id. at

327–28. Here, by contrast, most of Chudacoff’s claims in Chudacoff II arise from

events that occurred after he filed his complaint in Chudacoff I. Chudacoff was not

obliged to amend the complaint in Chudacoff I to include claims arising from

distinct events that occurred between the filing of that complaint and judgment in

that action. See 18 Charles Alan Wright et al., Federal Practice and Procedure §

4409 (2d ed. 2012) (“Most cases rule that an action need include only the portions

of the claim due at the time of commencing that action, frequently observing that

the opportunity to file a supplemental complaint is not an obligation.”). The

district court erred in dismissing Chudacoff’s claims against UMC, Silver, the

Board, and the Medical Staff based on claim preclusion.

                                          III

      Under federal law, the district court may have come to the right conclusion

at the time it rendered its decision dismissing the due process claims brought

against the individual doctors based on issue preclusion. Where the relevant part

of a decision underlying a ruling based on issue preclusion is reversed, however,

the ruling based on issue preclusion cannot stand. See Ornellas v. Oakley, 618


                                           5
F.2d 1351, 1356 (9th Cir. 1980); see also 18 Charles Alan Wright et al., Federal

Practice & Procedure § 4433 (2d ed. 2012) (“[A] second judgment based upon the

preclusive effects of the first judgment should not stand if the first judgment is

reversed.”).

      The issue that the district court here determined that it was precluded from

considering was whether the individual doctors were acting under color of state

law. But we reversed the district court’s decision in Chudacoff I that there was no

genuine issue of material fact as to whether the individual doctors in that action

were acting under color of state law. Chudacoff v. Univ. Med. Ctr. of S. Nev., 649

F.3d 1143, 1149–51 (9th Cir. 2011). After our partial reversal in Chudacoff I,

there is no decision that has not been reversed regarding whether any individual

doctor acting in connection with Chudacoff’s proceedings was acting under the

color of state law. The district court erred in dismissing the due process claims

against all individual doctors remaining in this action.

      We thus reverse the district court’s summary judgment in favor of UMC,

Silver, the Board, the Medical Staff, and all individual doctors remaining in this

action.

      REVERSED IN PART, AND REMANDED FOR FURTHER

PROCEEDINGS.


                                           6
