                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-4077
                         ___________________________

                                  Richard M. Elbert,

                        lllllllllllllllllllllPlaintiff - Appellant,

                                            v.

  Gilbert Carter, Police Officer; Francis Collins, Police Officer; Andrew Dorothy,
    Sgt.; Erik Enderlin, Police Officer; Charles Evans, Police Officer; William
  Hooley, Police Officer; Caleb Lenz, Sgt.; Rebecca Mills, Sgt.; William Nauyok,
  Police Officer; James Manley, Police Officer; Christopher Onik, Police Officer;
 Jason Rusley, Police Officer; Marcus Smith, Police Officer; Alan Whaley, Police
   Officer; Alvin Brooks, Commissioner; Michael Rader, Commissioner; Angela
     Wasson-Hunt, Commissioner; Sly James, Commissioner; David Kenner,
Secretary; Robert Richardson, Fire Marshall; Joe Williamson, Code Enforcement Manager,

                       lllllllllllllllllllllDefendants - Appellees.
                                        ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                             Submitted: June 13, 2018
                             Filed: September 10, 2018
                                   ____________

Before COLLOTON, BENTON, and KELLY, Circuit Judges.
                          ____________
COLLOTON, Circuit Judge.

       In a previous lawsuit filed in 2011, Richard Elbert sued the City of Kansas
City, Missouri, the Kansas City Board of Police Commissioners, and various Kansas
City employees, including police officers, in federal court. Elbert brought several
federal constitutional claims under 42 U.S.C. § 1983, alleging violations of the First
and Fourth Amendments, as incorporated against the States. He also alleged
violations of state law, and sought the return of property under Federal Rule of Civil
Procedure 64.

       Many of Elbert’s claims were based on an episode at the Kansas City Apollo
Country Club. Elbert was the manager of the club. The country club had been the
subject of citizen complaints and investigations by the city. On December 10, 2011,
Kansas City police officers executing a search warrant effected a no-knock forceful
entry into the club.

       Elbert alleged that a group of Kansas City police officers—identified as John
Doe defendants in his complaint—battered the front door of the establishment, threw
a “flash bang grenade” through the partially shattered door, and entered the club with
weapons drawn. He asserted that the John Does pointed weapons at his friends and
associates, and demanded that they get down on the ground. According to Elbert, the
officers placed him in restraints, and Detective Robert Gibbs questioned him, first at
the scene and later at police headquarters. Among other claims, Elbert alleged that
Detective Gibbs violated the Fourth Amendment by using excessive force and falsely
arresting and imprisoning him.




                                         -2-
       In March 2013, the district court1 dismissed Elbert’s First Amendment claims
for failure to state a claim. The court also denied Elbert’s motion for return of
property, reasoning that Elbert had not availed himself of the post-deprivation remedy
of replevin under Missouri law.

      The court allowed Elbert’s Fourth Amendment claims to proceed and directed
the parties to submit a scheduling order. The parties agreed that the deadline for
Elbert to amend his pleadings would be October 31, 2014. Elbert then moved for
leave to amend his pleadings on December 23, 2014, nearly two months after the
deadline. In his proposed amended complaint, Elbert sought to substitute twenty-one
named individual defendants, mostly Kansas City police officers, for the twenty-one
John Doe defendants listed in his second amended complaint. The court denied
Elbert’s motion to amend as untimely.

       Before final judgment in the first action, Elbert filed the present suit in
Missouri state court. He named as defendants several people, including Detective
Gibbs and the Missouri Board of Police Commissioners, who were also defendants
in the first lawsuit. Elbert also sued sixteen Kansas City police officers, all of whom
he had unsuccessfully sought to substitute for the John Doe defendants in the first
lawsuit. The defendants removed the case to federal court. Elbert’s claims in this
action, as in the first action, arise from the events occurring at the Apollo Country
Club on December 10, 2011.

       Just over two weeks after the case was removed, the district court sua sponte
dismissed Counts 1, 2, 3, 5, and 9 of Elbert’s eight-count complaint. In Counts 1, 2,
and 5 of the complaint, Elbert alleged that the Board of Police Commissioners had
failed to train and properly supervise the defendant police officers, and had failed to


      1
       The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.

                                         -3-
establish proper policies. In Count 3, Elbert alleged that the police officers and other
city officials had violated his right to freedom of assembly under the First
Amendment by dispersing guests during the December 10 search. Finally, in Count
9, Elbert sought replevin from the police officers and other city officials. The district
court reasoned that Elbert had brought the same claims in the first federal action, and
the court had dismissed them for failure to state a claim, so they should be summarily
dismissed in the second action. The court then stayed further proceedings pending
resolution of motions for summary judgment on the remaining claims in the first
action.

      On January 15, 2016, the district court granted summary judgment for the
defendants on Elbert’s remaining federal claims in the first action, and declined to
exercise supplemental jurisdiction over his state claims. This court affirmed the
judgment, including the district court’s denial of leave to amend the second amended
complaint. See Elbert v. City of Kansas City, 667 F. App’x 881, 882-83 (8th Cir.
2016) (per curiam).

       After entering final judgment in the first action, the district court dismissed all
remaining counts in the second action—Counts 4, 6, 7, and 8—reasoning that they
were barred under the doctrine of res judicata. In Count 8, Elbert alleged that
Detective Gibbs, who was also a defendant in the first action, had negligently
supervised the police officers in their execution of the search warrant on December
10, 2011. In Counts 4, 6, and 7, Elbert challenged the actions of the police officers
who were identified as John Doe defendants in the first action but never added as
parties in that case. In Count 4, Elbert alleged that several city employees, including
the police officers, had violated his equal protection rights by interfering with his
ability to host private parties. Count 6 alleged a state law conversion claim against
all defendants. Count 7 asserted that several city employees, including the police
officers, violated Elbert’s due process rights.



                                           -4-
        In dismissing these claims based on res judicata, the district court reasoned that
they were “based on the same events” as the first federal action. The court recognized
that several of Elbert’s claims involved police officers who were not defendants in
the first action, but concluded that these officers were in “privity” with the defendants
in the first action. Elbert appeals the district court’s dismissal of his claims.

       Under federal common law, the doctrine of res judicata, or claim preclusion,
applies when “(1) the first suit resulted in a final judgment on the merits; (2) the first
suit was based on proper jurisdiction; (3) both suits involve the same parties (or those
in privity with them); and (4) both suits are based upon the same claims or causes of
action.” Costner v. URS Consultants, Inc., 153 F.3d 667, 673 (8th Cir. 1998).
“[W]hether two claims are the same for res judicata purposes depends on whether the
claims arise out of the same nucleus of operative fact or are based upon the same
factual predicate.” Murphy v. Jones, 877 F.2d 682, 684-85 (8th Cir. 1989). Under
the doctrine of res judicata, “a final judgment on the merits of an action precludes the
parties or their privies from relitigating issues that were or could have been raised in
that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980). The district court correctly
ruled that res judicata bars Counts 1, 2, 5, and 8, because they involve claims against
the same parties from the first action, and Elbert could have brought the new claims
in the first action.

       In the remaining counts, Elbert brought claims arising from the same events at
the country club, but against new defendants who were not parties to the first action.
The new defendants are police officers whom Elbert attempted to add as defendants
in the first case when he filed his untimely motion to amend the second amended
complaint. The district court reasoned that these remaining counts were barred by res
judicata because the new police officer defendants were in “privity” with other police
officers who were defendants in the first action. Elbert disputes this conclusion.




                                           -5-
       The term “privity” once referred to specific substantive legal relationships, but
it has “come to be used more broadly, as a way to express the conclusion that
nonparty preclusion is appropriate on any ground.” Taylor v. Sturgell, 553 U.S. 880,
894 n.8 (2008). “[T]he term ‘privity’ is now used to describe various relationships
between litigants that would not have come within the traditional definition of that
term.” Richards v. Jefferson County, 517 U.S. 793, 798 (1996). As Judge Goodrich
wrote in Bruszewski v. United States, 181 F.2d 419 (3d Cir. 1950), “privity” is
“merely a word used to say that the relationship between the one who is a party on the
record and another is close enough to include that other within the res judicata.” Id.
at 423 (concurring opinion).

        This court long ago recognized that claim preclusion is not limited to cases
involving the same parties or parties who are in traditional “privity” with defendants
in a first action. In Fowler v. Wolff, 479 F.2d 338 (8th Cir. 1973) (per curiam), we
affirmed the dismissal of a plaintiff’s claims against two new defendants in a second
action where “the relationship of [the two new defendants] to the parties sued in the
[previous] action is so close that their addition cannot change the fact that this present
action is repetitious and barred by res judicata.” Id. at 340. Fowler involved a civil
rights action against three Nebraska officials concerning a dispute over parole. After
the first action was dismissed on the merits, the plaintiff brought a second action
against two of the same defendants and two different Nebraska officials. Although
the later action involved new individual defendants and a new claim that was not
discussed by the district court in the previous action, this court concluded that claim
preclusion applied. Id.

      Fowler applied Gambocz v. Yelencsics, 468 F.2d 837 (3d Cir. 1972), where the
Third Circuit ruled that claim preclusion barred a plaintiff, whose claim of civil
conspiracy against one set of defendants in a first action was dismissed on the merits,
from bringing a second action alleging the same conspiracy against additional
defendants who were not parties to the first. Although the two sets of defendants

                                           -6-
were not in traditional “privity” with each other, the court in Gambocz reasoned that
“the relationship of the additional parties to the second complaint was so close to
parties to the first that the second complaint was merely a repetition of the first cause
of action.” Id. at 842.

       Because the new defendants in Fowler and Gambocz were not parties in the
first action, their invocation of claim preclusion was “nonmutual.” One leading
commentator, after surveying the law in this area, concluded that the one “cogent
argument in favor of nonmutual claim preclusion is that the party to be precluded
should have joined his new adversary in the original litigation.” 18A Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure
§ 4464.1, at 702 (3d ed. 2017).

        Since Fowler, other circuits have followed this approach and concurred with
Professor Cooper’s observation that “[t]he best probable outcome” is a “limited rule”
that permits nonmutual claim preclusion “if the new party can show good reasons
why he should have been joined in the first action and the old party cannot show any
good reasons to justify a second chance.” Id. § 4464.1, at 709; see Mars Inc. v.
Nippon Conlux Kabushiki-Kaisha, 58 F.3d 616, 620 (Fed. Cir. 1995); In re El San
Juan Hotel Corp., 841 F.2d 6, 10-11 (1st Cir. 1988). The First Circuit, summarizing
the authorities, explained that “claim preclusion applies if the new defendant is
‘closely related to a defendant from the original action—who was not named in the
previous law suit,’ not merely when the two defendants are in privity.” Airframe Sys.,
Inc. v. Raytheon Co., 601 F.3d 9, 17 (1st Cir. 2010) (quoting Negron-Fuentes v. UPS
Supply Chain Sols., 532 F.3d 1, 10 (1st Cir. 2008)). These decisions reject the
“contention that nonparty defendants to an initial action can invoke claim preclusion
as a defense in a later suit only if they can show that the nonparty defendant was in
privity with the initial defendant.” Id.




                                          -7-
       The rationale of Fowler and comparable decisions from other circuits supports
the district court’s application of claim preclusion here. Elbert unsuccessfully
brought First and Fourth Amendment claims against Detective Gibbs in his first
action based on the police raid of the country club on December 10, 2011. He now
seeks to bring two new constitutional claims, under the Equal Protection Clause and
Due Process Clause of the Fourteenth Amendment, and a new state law claim alleging
conversion, against Gibbs and the officers whom he asserts were co-perpetrators with
Gibbs, all based on the same police raid on December 10, 2011.

       There is no good reason why Elbert should have a second chance to add these
claims and defendants. All of his claims arise out of the same police raid, and all of
his new claims allege that Detective Gibbs, the defendant in the first action, and the
sixteen police officers added in the second, acted together to violate his rights. Elbert
could have brought the new claims against Gibbs in the first action and failed to do
so. He could have joined the other police officers as defendants in the first action but
failed to do so in a timely manner. As the district court explained, allowing Elbert to
circumvent the district court’s ruling on his untimely motion for leave to amend in the
first action by bringing a second action against the new defendants would
unreasonably burden the parties and the court: The “defendants, and [the district]
court and staff expended an inordinate amount of judicial resources over a period of
five years in the litigation of the prior action.” R. Doc. 13, at 6. We uphold the
district court’s decision, because “[a]ny other rule would enable plaintiff to avoid the
doctrine of res judicata by the simple expedient of not naming all possible defendants
in [his] first action.” Ruple v. City of Vermillion, 714 F.2d 860, 862 (8th Cir. 1983)
(applying South Dakota law).

       To be sure, Taylor v. Sturgell rejected claim preclusion against a nonparty
plaintiff based on a notion that the nonparty received “virtual representation” by a
different plaintiff in a first action. But Taylor involved different considerations than
this case. A plaintiff who was not a party to a first action “generally has not had a

                                          -8-
‘full and fair opportunity to litigate’ the claims and issues settled in that suit.” 553
U.S. at 892. Elbert, of course, was a party and had ample opportunity to litigate his
claims against Gibbs and the sixteen police officers in his first action; he simply
failed to do so. The question here is not whether Elbert is entitled to the time-
honored tradition of “his own day in court,” id. at 893 (quoting Richards, 517 U.S.
at 798), but whether he gets “a second bite at the apple.” Lubrizol Corp. v. Exxon
Corp., 871 F.2d 1279, 1288 (5th Cir. 1989) (citing Gambocz).

       The judgment of the district court is affirmed.

KELLY, Circuit Judge, concurring in part and dissenting in part.

      I agree that Counts 1, 2, 3, 5, 8, and 9 in the second action were subject to
dismissal in light of the district court’s dismissal of nearly identical claims in the first
action. But I would reverse the district court’s judgment as to the claims Elbert—who
has been proceeding pro se since filing the first action—sought to bring against the
former Doe defendants in their individual capacities in Counts 4, 6, and 7.

       At issue here is whether the former Doe defendants are in privity with any of
the defendants served in the first action, for although Elbert tried to bring claims
against the former Doe defendants in the first action, they were never made party to
the action. Claim preclusion “is not ordinarily available” to individuals who were not
party to the first action. Wright, Miller, & Cooper, supra § 4464.1. In Taylor, the
Supreme Court reaffirmed the general rule against nonparty preclusion and outlined
the rule’s “discrete exceptions,” which “apply in ‘limited circumstances.’” 553 U.S.
at 892–99 (quoting Martin v. Wilks, 490 U.S. 755, 762 n.2 (1989)). Claim preclusion
may be applied against a nonparty who stipulates to be bound by a final judgment,
who has a substantive legal relationship with a party to the judgment, who was
adequately represented by someone with the same interests who was party to the first
suit, who assumed control over the first suit, who is the designated representative or

                                            -9-
agent for a party to the first suit, or when a special statutory scheme expressly allows
for its application. Id. at 893–95. The opinions cited by the court applying claim
preclusion in favor of nonparties concern factual scenarios that generally fit into one
of these discrete exceptions.              See Airframe Sys., 601 F.3d at 11
(successor-predecessor relationship); Mars, 58 F.3d at 619 (parent-subsidiary
relationship); Lubrizol Corp., 871 F.2d at 1288–89 (principal-agent relationship); El
San Juan Hotel, 841 F.2d at 10–11 (attorney-client relationship); Ruple, 714 F.2d at
862 (government-official relationship with “nearly identical” interests); Gambocz,
468 F.3d at 842 (co-conspirator relationship); Bruszewski, 181 F.2d at 422–23
(principal-agent relationship); cf. Richards, 517 U.S. at 802 (determining that an
earlier judgment did not have preclusive effect because the plaintiffs in the second
suit were not adequately represented by the plaintiffs in the first suit).

       Fowler, 479 F.2d 338, also fits within Taylor’s exceptions. There, the plaintiff
brought several lawsuits against prison officials alleging that they had violated his
constitutional rights by paroling, rather than releasing, him from prison and by failing
to give him a hearing when his parole was revoked. The plaintiff’s claims against the
two new defendants, who were accused of participating in the same parole-related
decisions, were precluded by the earlier actions. As I read Fowler, the new
defendants shared the same interests as, and were adequately represented by, the
defendants in the first action. Claim preclusion was therefore available to them
despite their nonparty status.

       But the former Doe defendants in this case do not fit within Taylor’s
exceptions. Elbert has sued each defendant in their individual capacities, and he
alleges that individual defendants took discrete actions that violated his constitutional
rights. This circuit has concluded that claim preclusion does not bar such claims. See
Irving v. Dormire, 586 F.3d 645, 647 (8th Cir. 2009) (holding that claim preclusion
did not bar individual-capacity claims against prison officials, one of whom had
already defended the plaintiff’s habeas petition in his official capacity); Headley v.

                                          -10-
Bacon, 828 F.2d 1272, 1277–80 (8th Cir. 1987) (holding that claim preclusion did not
bar individual-capacity claims against police officers because they were not in privity
with the city that employed them); see also, e.g., Gallagher v. O’Connor, 664 F.
App’x 565, 568 (7th Cir. 2016) (holding that claim preclusion did not bar
individual-capacity claims against a police officer, because his interests were not
represented by any of the defendants in previous lawsuits, as “he would have to pay
any judgment against him out of his own pocket”); Beard v. O’Neal, 728 F.2d 894,
897 (7th Cir. 1984) (“We can discern no basis for holding that all F.B.I. agents and
informants, sued individually for their own acts or inactions, are in privity for res
judicata purposes.”). From the record before the court, I cannot conclude that the
former Doe defendants meet an exception to the general rule against nonparty
preclusion.

       The court concludes that the former Doe defendants are nevertheless in privity
with the defendants in the first action. The Taylor court expressly declined to use the
term “privity” when discussing the exceptions to the general rule because it “has also
come to be used more broadly, as a way to express the conclusion that nonparty
preclusion is appropriate on any ground.” Id. at 894 n.8. The court invokes “privity”
in precisely that sense, holding that nonmutual claim preclusion applies even though
the circumstances would not support a finding of privity as to the defendants who
were not served in the first action. “[T]here is a price to be paid for this approach[,
as b]ogus findings of privity may cloud reasoning as later courts confront real privity
questions.” Wright, Miller, & Cooper, supra, § 4464.1.

       Encouraging plaintiffs to join as many defendants as possible in the first action
is, according to Wright and Miller, the “only cogent argument in favor of nonmutual
claim preclusion.” Id. (emphasis added). It’s a tempting argument here, where
Elbert’s lawsuits have resulted in drawn-out litigation of claims that have so far
proven to be without merit. But as Wright and Miller caution, “claims that seem thin
are deliberately protected against judicial impatience by a host of rules that should not

                                          -11-
be subverted by equally thin preclusion reasoning.” Id. That is the case here, where
Elbert did not have “ample opportunity to litigate his claims,” ante at 9, in the first
action: He couldn’t join the former Doe defendants initially because he didn’t know
their names; and later, the district court denied him leave to amend. I would conclude
that Counts 4, 6, and 7 of Elbert’s complaint were not barred by claim preclusion to
the extent they are brought against the former Doe defendants in their individual
capacities, and that their dismissal on that basis was erroneous.
                         ______________________________




                                         -12-
