                           NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                            FOR THE NINTH CIRCUIT                           JAN 06 2016

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

MAREN EQUIPMENT LEASING, INC.,                   No. 13-56922
a California Corporation, and GARY E.
SMITH, an individual,                            D.C. No. 2:12-cv-08244-BRO-
                                                 VBK
              Plaintiffs - Appellants,

  and                                            MEMORANDUM*

ELLIOT MASON, an individual,

              Plaintiff,

 v.

DHL EXPRESS (USA), INC., an Ohio
Corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                 Beverly Reid O’Connell, District Judge, Presiding

                            Submitted January 4, 2016**
                               Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                              Page 2 of 4


Before: M. SMITH, WATFORD, and FRIEDLAND, Circuit Judges.

         1. The district court correctly held that this action is barred by the doctrine

of res judicata. The Utah state court dismissed the earlier lawsuit brought by

appellants Maren Equipment Leasing, Inc., and Gary Smith under Rule 41(b) of

the Utah Rules of Civil Procedure. The order dismissing that lawsuit did not need

to expressly state that the dismissal was with prejudice. The court summarily

granted an unopposed motion to dismiss for failure to prosecute, and the motion

cited Rule 41(b) as the basis for dismissal. Thus, unlike in Panos v. Smith’s Food

& Drug Centers, Inc., 913 P.2d 363, 364–65 (Utah Ct. App. 1996), there is no

uncertainty here as to whether the court dismissed the action under Rule 41(b) as

opposed to some other source of authority. When a court grants involuntary

dismissal under Rule 41(b) and does not indicate whether it is with or without

prejudice, “it is assumed that the dismissal is with prejudice.” Alvarez v. Galetka,

933 P.2d 987, 990 (Utah 1997). And Rule 41(b) expressly provides that “[u]nless

the court in its order for dismissal otherwise specifies, a dismissal under this

subdivision . . . operates as an adjudication upon the merits.” Utah R. Civ. P.

41(b).
                                                                           Page 3 of 4
      The order dismissing the earlier lawsuit with prejudice constitutes a final

adjudication. At the time the order was entered, claims involving other parties

remained pending, thus precluding entry of final judgment disposing of the entire

action. But not long after, the remaining parties settled their claims and stipulated

to dismissal of all remaining claims with prejudice. (Under Federal Rule of

Evidence 201(b)(2), we may take judicial notice of the Utah state court’s order

even though the parties did not include it in the record.) Once all claims in the

action had been dismissed with prejudice, the Utah state court’s adjudication

unquestionably became final.

      Contrary to appellants’ contention, the Utah state court did not need to enter

a separate judgment or order disposing of their claims to render the adjudication

“final.” The Utah state court’s memorandum decision granting involuntary

dismissal of appellants’ claims expressly stated that no further order needed to be

submitted by the defendant to memorialize the court’s rulings. The decision stated:

“This Memorandum Decision will stand as the Order of the Court.”

      2. Appellants cannot avoid application of the res judicata doctrine merely by

asserting that DHL should have asserted the defense earlier in the litigation.

Appellants had to show that they were prejudiced by DHL’s assertion of the

defense for the first time on summary judgment. See Owens v. Kaiser Found.
                                                                          Page 4 of 4
Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). But appellants never made

any such showing in the district court, and they certainly have not done so on

appeal. They assert only that they would have conducted additional discovery had

DHL asserted the defense earlier, without identifying any discovery they would

have taken or why it would have been relevant to rebutting the defense. Moreover,

if appellants had truly believed that taking additional discovery was necessary to

respond to DHL’s summary judgment motion, they could have requested an

opportunity to pursue such discovery under Federal Rule of Civil Procedure 56(d).

      3. We have considered appellants’ remaining contentions and find them to

be without merit for the reasons stated by the district court.

      AFFIRMED.
