
USCA1 Opinion

	




        April 8, 1992           [NOT FOR PUBLICATION]                                 ____________________        No. 91-2248                                    ISABELLE CARTA,                                Plaintiff, Appellant,                                          v.                              TOWN OF FAIRFIELD, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Isabelle Carta on brief pro se.            ______________            Vernon I. Arey and Wheeler & Arey, P.A., on brief for appellees.            ______________     ____________________                                 ____________________                                 ____________________                      Per Curiam.  This is our second occasion to revisit                      __________            the actions of the  Town of Fairfield (the "town")  which, on            April  5,  1989, denied  a  special  permit to  a  non-profit            entity, Hospitality  House, to operate a  homeless shelter in            the  town.  In Lightfoot  v. Matthews, No.  91-1506, slip op.                           _________     ________            (1st  Cir. Feb.  14,  1992) (Lightfoot  I),  we affirmed  the                                         ____________            dismissal of the shelter director's complaint against a state            senator whose letter to the town about the permit application            was  alleged to  be  defamatory.   In  Lightfoot v.  Town  of                                                   _________     ________            Fairfield, No. 91-2051,  slip op.  (1st Cir.  Mar. 11,  1992)            _________            (Fairfield I),  we affirmed  the dismissal of  the director's             ___________            suit against  the town for alleged  defamation and violations            of due  process in denying the permit.  Isabella Carta1 was a            member of the shelter's Board of Directors at the time of the            permit denial,  and subsequently filed this  pro se complaint                                                         ______            under 42  U.S.C.   1983.   It alleged, in remarkably  similar            fashion  to the contentions in Fairfield I, that the town had                                           ___________            defamed  her and  violated  her  rights  to  due  process  in            withholding the  requested permit.  The  district court found            that plaintiff's prior state-court complaint against the town            barred this  suit, and dismissed  the complaint.   Since this            case closely parallels our two prior related decisions, ante,                                                                    ____            we  affirm,  and state  only  those  facts necessary  to  our            decision on appeal.                                            ____________________            1.  Carta, it appears, is director Lightfoot's mother.                                          -2-                                      Background                                      Background                                      __________                 After the  denial of the  shelter permit, Carta  filed a            complaint against the town  in Maine's Superior Court seeking            redress, first, under 42 U.S.C.   1983 for the town's alleged            unconstitutional actions in denying  the permit, and, second,            for  asserted defamation  to  her business  reputation.   The            latter  contention was  supported by  quoted portions  of the            published statement  issued by the town's Board of Appeals at            the time of the denial on April 5, 1989:                 [T]he shelter . . . could change the character of a                 neighborhood  to  such a  degree that  the peaceful                 enjoyment  of  the  residents  could  be  adversely                 affected.   .  .  .   [It  was]   not  sufficiently                 documented  [that there  were] .  . .  financial or                 organizational capabilities to staff the shelter. .                 . . It is the opinion  of the Board of Appeals that                 a lack of management and direction from a qualified                 Board  is  essential for  the  protection  and well                 being of  the clients  as well as  the citizens  of                 Fairfield.            The  Superior   Court,  in  a  summary   order,  granted  the            defendant's  motion  to dismiss  on  the  basis that  Carta's            complaint  failed to state a  claim upon which  relief may be            granted.   Carta  v. Town  of  Fairfield, No.  CV-90-66  (Me.                       _____     ___________________            Super. Ct.,  Som. Cty.  Feb. 5,  1990).   The  order was  not            appealed to the Maine Supreme Judicial Court.                   Some  fourteen months later  Carta filed this complaint.            Focusing  upon  the April  5, 1989  actions  of the  Board of            Appeals  in  refusing  to   grant  the  shelter  permit,  the                                         -3-            complaint  alleged  that   the  Board's  hearing   procedures            resulted in findings which deprived her of her right to enjoy            a good business  reputation without due process.   The injury            to her reputation, she claimed, arose out of the town's false            and defamatory public statements at the time of the denial.                  After discovery, the town  moved for summary judgment on            the  ground, inter alia, that  the complaint was barred under            the doctrine of res judicata because of the preclusive effect            of the prior Maine Superior Court judgment.  Both complaints,            the town argued, arose out of the same set of operative facts            and  identified exactly the same alleged defamatory language.            As  to  parties,  the town  noted  that  while  the "Town  of            Fairfield" was  the only  named defendant in  the state-court            action,  the caption  of the  federal complaint  included the            town  "and Individually  Each  Member of  the  1989 Board  of            Appeals,   Fairfield  Maine."     The  town's  "Statement  of            Uncontested  Material Facts",  filed  in support  of  summary            judgment,  asserted  that "the  plaintiff  failed to  achieve            service  on any named defendant in this  lawsuit except . . .            [the]  Town Manager  for the  Town of  Fairfield."   The town            contended that the individual members of the Board of Appeals            who were  neither named nor served were  subject to automatic            dismissal under  Fed. R.  Civ. P.  4(j).   Alternatively, the            town  contended that the Board members  were privies with the            town.                                         -4-                 Carta's  opposition to  summary judgment  countered that            the parties here are different, and that res judicata did not            apply.   Carta maintained that  a summons sent  to the town's            Code  Enforcement  Officer  had  included the  names  of  the            relevant board  members, but it  was conceded that  "only the            Town  Manager   acknowledged  receipt  of  the   summons  and            complaint",  presumably on behalf of the town.  No reason was            given  as to why service had not  been accomplished as to any            other person.  Apparently Carta believed that since the Board            members  were known  to  the town  they  did not  need  to be            served.                 In reply  to this opposition,  the town stated  that the            Code Enforcement Officer  was not  a member of  the Board  of            Appeals  at the time in  question, that no  return of service            was  made as  to him, and  that Carta  had failed  to achieve            service of  process on any other  "defendant".  Consequently,            the  town posited, the  record failed  to establish  that the            parties now are any  different than those in the  state-court            case, making the application of res judicata proper.                 The district court granted the town's motion for summary            judgment,  and  entered  judgment  for  "defendants  Town  of            Fairfield and the 1989  Board of Appeals."  The  court agreed            that  Maine  law  regarding  res judicata  applied  and  that            Carta's  complaint  must  be   dismissed  as  an  attempt  to            relitigate "`issues that  were tried, or may have been tried,                                         -5-            in  a prior action if: (1)  the same parties or their privies            are  involved  in both  actions;  (2)  a  final judgment  was            entered in  the prior action;  and (3) the  matters presented            for decision now were,  or might have been, litigated  in the            prior action'",  citing Currier v.  Cyr, 570 A.2d  1205, 1208                                    _______     ___            (Me. 1990).                  As  to the first element,  the court found that Carta's            claims  that  this action  implicated  different  parties was            "without  factual support", and  concluded that the complaint            involved the same parties as the state-court case.  As to the            second  and third  elements,  the court  determined that  the            prior  dismissal  for  failure  to   state  a  claim  was  an            adjudication on  the merits,  and that the  present complaint            clearly arose out of the same set of "operative facts" as the            prior action.    So  finding,  the court  decided  that  "the            dismissal of Carta's state-court action is res judicata as to            the  present claims  against  the Fairfield  defendants", and            granted the  town's motion for summary judgment.  This appeal            ensued.                                      Discussion                                      Discussion                                      __________                 In Lightfoot I and Fairfield  I, we applied the doctrine                    ___________     ____________            of  res judicata and claim preclusion, and do not repeat that            discussion  here.   The district  court correctly  stated the                                         -6-            Maine "rules" in  that regard.   First, there  is no  serious            dispute that a valid, final judgment was entered in the first            suit.2   Second,  we have  compared this  complaint with  the            prior  state-court  complaint and  agree  that under  Maine's            transactional  test both  embrace the  same cause  of action.            Currier, 570 A.2d at 1208.  We note some difficulty, however,            _______            regarding  the third  requirement in  light of  the  entry of            summary  judgment in favor of the town  and the 1989 Board of                                                    ___            Appeals.       The  district  court  acknowledged   that  the            doctrine of res judicata,  under Maine law, contemplates that            a cause  of action may not  be relitigated when a  prior suit            involved  the same parties or  their privies, and  it made an            express  finding   that  "the  present  action   against  the            Fairfield defendants  involves the same parties  as the state            court case."   It is undisputed that  only Carta and the town            were parties  to the  prior state  action.   As  it does  not            appear that  the  individual members  of  the 1989  Board  of            Appeals  of the town  were ever made  a party to  the present                                            ____________________            2.  Carta  has  argued  that  the  state-court  dismissal was            "wrong", and that she  was foreclosed from presenting various            factual  issues at  trial.   As we  observed in  Fairfield I,                                                             ___________            however, Carta lost the opportunity to vindicate her position            when she decided not to bring a direct appeal from the state-            court  dismissal.    She  cannot  "correct"  the  state-court            dismissal  by again bringing the  same cause of  action.  See                                                                      ___            Federated  Dept. Stores,  Inc. v.  Motie,  452 U.S.  394, 398            ______________________________     _____            (1981).                                         -7-            action,3  and  because Fed.  R. Civ.  P. 4(j)  mandates that,            except for  good cause  shown for failure  to serve  process,                                    _____            "the action shall  be dismissed as to  that defendant without            prejudice", we examine the  record to determine whether these            individuals   otherwise   submitted    themselves   to    the            jurisdiction of the court.  See Insurance Corp. of Ireland v.                                        ___ __________________________            Compagnie Des Bauxites, 456  U.S. 694, 703-05 (1982).              ______________________                 It is elementary  that without personal jurisdiction,  a            court is without power to adjudicate a claim or obligation of            a person, and any  judgment or order so rendered  is null and            void.  General  Contracting & Trading Co. v.  Interpole Inc.,                   __________________________________     ______________            899  F.2d 109, 114 (1st Cir.  1990).  Ordinarily, "one is not            bound by a judgment in  personam in a litigation in  which he                                ____________            is not designated as a party or to which he has not been made                                            ____________________            3.  In this  case  it  is  clear  that  Carta,  for  whatever            reasons, did not comply with the requirements of Fed. R. Civ.            P. 4, and thus failed to properly effect, or attempt, service            on  the individual  members  of the  1989  Board.   See  Rule                                                                ___            4(c)(2)(C)(ii).   Nothing in the record  approximates a "good            cause" showing to mitigate this failure.  Rule 4(j).  Carta's            pro se status does not insulate her from compliance with this            ______            (or  any  other)  procedural  rule.    See,  e.g.,  Kersh  v.                                                   ___   ____   _____            Derozier,  851 F.2d 1509, 1512 (5th  Cir. 1988); Patterson v.            ________                                         _________            Brady, 131  F.R.D. 679, 683  n.4 (S.D.  Ind. 1990).   Nor did            _____            Carta name or otherwise allege any facts as to the individual            Board members,  either in  the body  of the  complaint (which            consistently  refers   to  "the"   defendant,  the   Town  of            Fairfield),   or  in   any   other  filed   document.     The            unacknowledged summons to the Code Enforcement Officer, which            did name the Board members, even  if it gave actual notice to            those  individuals, would  not  cure the  deficit created  by            Carta's failure to effect  proper service.  Media Duplication                                                        _________________            Services v. HDG  Software, Inc., 928 F.2d 1228,  1232-35 (1st            ________    ___________________            Cir. 1991).                                          -8-            a  party by service of process."   Hansberry v. Lee, 311 U.S.                                               _________    ___            32, 40  (1940)  (citations  omitted).    This  has  been  the            "consistent  constitutional rule."    Zenith Radio  Corp.  v.                                                  ___________________            Hazeltine,  395 U.S.  100, 110 (1969);  Martin v.  Wilks, 490            _________                               ______     _____            U.S.  755,  761-62 (1989).    Obviously,  this principle  has            greater force  when an  individual's interests  are adversely            affected  by a  judgment,  but  is  of  equal  effect  as  to            judgments  in   favor  of   individuals  who  are   de  facto            "strangers"   to  the   proceedings.4     See  id.   at  762;                                                      ___  ___            Northwestern  National  Casualty  Co.  v.  Global  Moving   &            _____________________________________      __________________            Storage,  Inc., 533  F.2d 320,  323  (6th Cir.  1976) ("[T]he            ______________            trial  court  erred  in  entering judgment  in  favor  of  [a            "defendant"]  before determining  that it  had the  requisite            personal jurisdiction.")                   Our examination of the record leads us to  conclude that            the  town never  relinquished the  right to  contest personal            jurisdiction as to the individual  Board members.  The  issue            was  raised in its answer, the first pleading it filed, which            seasonably   interposed   the   jurisdictional  defenses   of                                            ____________________            4.  While "representative" suits  are a recognized  exception            to the  general rule, Martin  v. Wilks, 490  U.S. at  762 n.2                                  ______     _____            (1989),  we do not  find the  town's alternative  and cursory            argument (that  the unnamed  and unserved Board  members were            privies  with the  town for  res judicata  purposes) availing            since even if privity exists -- a question we do not decide -            - to the extent that Carta sought to sue the Board members in            their  personal  and individual  capacity,  they  are not  in            privity with the town.   Gray v. Lacke, 885  F.2d 399, 405-06                                     ____    _____            (7th Cir. 1989).                                         -9-            insufficiency  of  process and  insufficiency  of  service of            process.   Jardines  Bacata, Ltd.  v. Diaz-Marquez,  878 F.2d                       ______________________     ____________            1555,  1559 (1st Cir. 1989); see also Roque v. United States,                                         ________ _____    _____________            857 F.2d 20, 21-22 (1st Cir. 1988).  Lack of service over the            individual  Board members  was  also a  basis  of the  town's            motion for  summary judgment.   There, as before  this court,            the  town argued that the failure to serve was dispositive as            to  the Board members and  that any claims  against them were            subject to  dismissal under  Rule 4(j).   Alvarado-Morales v.                                                      ________________            Digital Equipment Corp., 843  F.2d 613, 615 (1st  Cir. 1988).            _______________________            We  do not perceive any  litigation conduct by  the town that            either  expressly or  by implication  indicated an  intent to            surrender   the  jurisdictional   objection.     See  General                                                             ___  _______            Contracting & Trading v. Interpole,  Inc., 940 F.2d 20, 22-23            _____________________    ________________            (1st  Cir. 1991)  (defendant's  conduct constituted  waiver).            Waiver,   to  be  effective,   "must  unequivocally  show  an            intention to  submit to the  district court's  jurisdiction."            Jardines Bacata, 878 F.2d at 1559.  Without a showing of good            _______________            cause for failure to effect service of process on the part of            the plaintiff, or  a clear jurisdictional waiver on  the part            of the town as  to the Board members, the  district court had            no  personal  jurisdiction  over  the  unnamed  and  unserved            individual  Board members.   The complaint should, therefore,            have been dismissed as to those individuals.  Fed. R. Civ. P.                                         -10-            4(j);  see also Glaros v. Perse,  628 F.2d 679, 685 (1st Cir.                   ________ ______    _____            1980); Fed. R. Civ. P. 10(a).                                      Conclusion                                      Conclusion                                      __________                 Accordingly,  the  judgment  of the  district  court  is            affirmed as to the  Town of Fairfield,  is vacated as to  the            1989  Board of  Appeals,  and the  case  is remanded  to  the            district court with instructions to enter an order dismissing            the  complaint as to the 1989 Board of Appeals for failure to            comply with Fed. R. Civ. P. 4(j).                 Affirmed in part, vacated in part and remanded.                 ______________________________________________                                         -11-
