
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                               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                                         -2-            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 & 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  & 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                                         -3-            enter                  an                     order dismissing the complaint against these for lack            of personal jurisdiction.                                         -4-
