                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                 WILLIAM J. MYERS, JR., Plaintiff/Appellant,

                                         v.

        FREESCALE SEMICONDUCTOR INC, Defendant/Appellee.

                              No. 1 CA-CV 17-0745
                                FILED 11-29-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2016-092450
                 The Honorable David King Udall, Judge

                                   AFFIRMED


                                    COUNSEL

Williams J. Myers, Jr., Chandler
Plaintiff/Appellant

Ogletree Deakins Nash Smoak & Stewart PC, Phoenix
By Leah S. Freed
Counsel for Defendant/Appellee
                        MYERS, JR. v. FREESCALE
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.


C A T T A N I, Judge:

¶1           William J. Myers, Jr., appeals from the final judgment
dismissing his complaint with prejudice. For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Myers is a former employee of Freescale Semiconductor, Inc.
Freescale terminated Myers’s employment in 2011 after conducting a sexual
harassment investigation.

¶3            In 2012, Myers sued Freescale for wrongful termination based
on age and sex discrimination, defamation, and conversion (the “First
Lawsuit”). After Freescale removed the case to federal district court,
Freescale moved for summary judgment and submitted a declaration by
Victoria Brush, its human resources manager, summarizing her
investigation of Myers for sexual harassment (the “Brush Declaration”). In
response, Myers alleged that Brush’s signature on the Brush Declaration
had “obviously been forged.” The district court granted Freescale’s motion
for summary judgment and terminated the case, finding that Myers’s “age
and gender discrimination claims fail for lack of evidence.” The court
found that Myers had not offered any evidence that Freescale’s reasons for
firing him were pretextual and held that the “uncontroverted evidence”
established that Freescale articulated legitimate non-discriminatory reasons
for terminating Myers and that Freescale’s reasons were sincere.

¶4             Several months later, Myers filed four post-judgment motions
in district court alleging various causes of action for libel, fraud, contempt,
slander, and perjury against Freescale employees and Freescale’s attorney
of record. The district court denied Myers’s motions and ordered them
stricken, declaring the motions “groundless, harassing and frivolous.” The
district court also ordered the clerk not to accept any further pleadings from
Myers without prior judicial authorization.

¶5          Almost two years later, Myers filed a motion alleging “Fraud
on the Court.” Myers attached the affidavit of Judith A. Housley (the


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                          Decision of the Court

“Housley Affidavit”), in which Housley opined that the signatures on the
Brush Declaration and another statement signed by Brush came from two
different authors. The district court denied Myers’s motion, finding it was
barred by the requirement that Federal Rule of Civil Procedure (“Federal
Rule”) 60(b) motions be filed within a reasonable time, and by the
requirement that Federal Rule 60(b)(3) motions based on fraud be filed
within one year after entry of judgment. The United States Court of
Appeals for the Ninth Circuit dismissed as untimely Myers’s appeal (to
which he again attached the Housley affidavit to show fraud on the court
and forgery).

¶6            In 2013, Myers filed a new complaint for unpaid wages and
conversion (the “Second Lawsuit”), which the district court dismissed on
claim preclusion grounds. The district court awarded Freescale its
attorney’s fees, finding that Myers’s action was “groundless and frivolous.”

¶7            In 2015, Myers filed a complaint against Freescale in superior
court alleging defamation and “Termination of Employment” (the “Third
Lawsuit”). The court dismissed the lawsuit with prejudice on claim
preclusion and statute of limitations grounds, and awarded Freescale its
costs and attorney’s fees.

¶8            Later in 2015, Myers filed another complaint against Freescale
for “Forgery/Fraud” stemming from the Brush Declaration in the First
Lawsuit, as well as defamation, termination of employment, and
conversion (the “Fourth Lawsuit”). The superior court dismissed the case
with prejudice on claim preclusion grounds and awarded Freescale its
attorney’s fees based on a finding that Myers had filed the Fourth Lawsuit
“without substantial justification.” See Ariz. Rev. Stat. (“A.R.S.”) § 12-
349(A)(1).

¶9            In 2016, Myers filed the instant lawsuit (the “Fifth Lawsuit”),
alleging fraud on the court and breach of good faith and fair dealing. The
fraud on the court claim was premised on Freescale allegedly presenting
false statements in the First Lawsuit and again asserted that the Brush
Declaration was a forgery. Myers also referenced Freescale’s investigation
into the sexual harassment claims against him that led to his termination,
alleging that the investigation was limited and that no women had ever
accused him of sexual harassment. The breach of good faith and fair
dealing claim was based on Freescale’s alleged wrongful termination of
Myers, asserting that he was improperly replaced by a younger, lower-
salaried employee. In his prayer for relief, Myers requested that Freescale
implement policies to end its unlawful employment practices.


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                          Decision of the Court

¶10           Freescale moved for summary judgment, contending that
claim preclusion barred Myers’s fraud claim and that the forgery allegation
was baseless. With respect to the breach of good faith and fair dealing
claim, Freescale argued claim preclusion, as well as preemption under
Arizona’s Employment Protection Act. Freescale also asserted that the
claim was time barred. Freescale submitted another declaration from Brush
confirming that the signature on the Brush Declaration was her true and
correct signature. In addition, Freescale filed a counterclaim for abuse of
process.

¶11          The superior court granted Freescale’s motion for summary
judgment, finding that claim preclusion barred all of Myers’s claims and
that the good faith and fair dealing claim was preempted by the Arizona
Employment Protection Act.

¶12           Myers filed two motions for relief of judgment, as well as a
motion to vacate the judgment on his fraud on the court claim. The superior
court denied all three motions. The court granted Freescale’s request for
attorney’s fees and costs, awarding a total of $40,023.75.

¶13          Myers timely appealed.

                              DISCUSSION

I.    Jurisdiction.

¶14           This court has jurisdiction to consider an appeal from a “final
judgment,” one that disposes of all claims and parties. A.R.S. § 12-
2101(A)(1); Kim v. Mansoori, 214 Ariz. 457, 459, ¶ 6 (App. 2007). To be
considered final, a judgment disposing of all claims and parties must
include a certification of finality under Arizona Rule of Civil Procedure
54(c). See Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, 427–28, ¶
12 (App. 2016). But a judgment that does not dispose of all claims and
parties does not become final and appealable simply because it includes
Rule 54(c) language. Madrid v. Avalon Care Ctr.-Chandler, L.L.C., 236 Ariz.
221, 224, ¶ 11 (App. 2014). We review de novo the superior court’s
determination of finality. Id. at 223, ¶ 3.

¶15           Myers argues that the superior court’s judgment is defective
because, notwithstanding Rule 54(c) finality language, the ruling did not
expressly address Freescale’s abuse of process counterclaim. But the record
and the parties’ appellate briefing establish that the superior court
implicitly dismissed Freescale’s counterclaim, a dismissal that Freescale has



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                           Decision of the Court

not challenged. Accordingly, the judgment is final and we have jurisdiction
under A.R.S. § 12-2101(A)(1).

II.    Claim Preclusion.

¶16            Myers argues that the court erred by dismissing his fraud on
the court claim on the basis of claim preclusion; he does not challenge the
dismissal of his good faith and fair dealing claim. We review a prior
judgment’s claim preclusive effect de novo. Howell v. Hodap, 221 Ariz. 543,
546, ¶ 17 (App. 2009). Because a federal court issued the judgment in the
First Lawsuit, federal law defines its preclusive effect. In re Gen.
Adjudication of All Rights to Use Water in the Gila River Sys. & Source, 212 Ariz.
64, 69, ¶ 13 (2006).

¶17            Claim preclusion bars a claim when a prior suit “(1) involved
the same ‘claim’ or cause of action as the later suit, (2) reached a final
judgment on the merits, and (3) involved identical parties or privies.”
Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005) (citation
omitted). Myers does not dispute that the First Lawsuit reached a final
judgment on the merits and involved identical parties, but rather argues
that the First Lawsuit involved a completely different claim.

¶18          To determine whether an identity of claims exists, we
consider four criteria:

       (1) whether the two suits arise out of the same transactional
       nucleus of facts; (2) whether rights or interests established in
       the prior judgment would be destroyed or impaired by
       prosecution of the second action; (3) whether the two suits
       involve infringement of the same right; and (4) whether
       substantially the same evidence is presented in the two
       actions.

Id.; see also Costantini v. Trans World Airlines, 681 F.2d 1199, 1201–02 (9th Cir.
1982). The most important criterion is whether the two suits arise out of the
same transactional nucleus of facts. Costantini, 681 F.2d at 1202. This
analysis focuses on whether two events “are related to the same set of facts
and whether they could conveniently be tried together.” W. Sys., Inc. v.
Ulloa, 958 F.2d 864, 871 (9th Cir. 1992) (citing Restatement (Second) of
Judgments § 24(2) (1982)).

¶19          Here, the First Lawsuit and the Fifth Lawsuit arise out of the
same transactional nucleus of facts—Freescale’s actions related to Myers’s
termination of employment—and could have conveniently been tried


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                        MYERS, JR. v. FREESCALE
                          Decision of the Court

together. See Mpoyo, 430 F.3d at 987 (reasoning that the second lawsuit
related to employer’s conduct leading to employee’s termination was
barred by claim preclusion). Myers opposed summary judgment in the
First Lawsuit by asserting that the signature on the Brush Declaration
(which described Freescale’s investigation of Myers’s conduct leading to his
termination) had “obviously been forged,” but the district court
nevertheless ruled against him. And after the district court entered
judgment in the First Lawsuit, Myers filed a post-judgment motion alleging
“Fraud on the Court” based on the same Housley Affidavit attached to the
Fifth Lawsuit’s complaint. The district court denied the motion. Thus,
Myers’s allegations in the Fifth Lawsuit concerning the authenticity (and
accuracy) of the Brush Declaration, as well as Freescale’s actions during the
investigation into harassment claims against him, were previously litigated
and decided against him in the First Lawsuit. See W. Radio Servs. Co. v.
Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997) (claim preclusion bars re-
litigation of claims that have already been litigated or could have been
litigated in a prior action).

¶20           As evidenced throughout the litigation, Myers alleged fraud
upon the court in the Fifth Lawsuit to revive his original discrimination
claim from the First Lawsuit. The complaint in the Fifth Lawsuit made
multiple references to Freescale’s actions during the sexual harassment
investigation, alleging that Freescale never conducted an extensive internal
investigation and that no women had ever alleged that Myers
inappropriately touched them. In the prayer for relief in the complaint,
Myers again referenced the original discrimination claim and requested
that Freescale be ordered to create workplace policies to eradicate its
unlawful employment practices. And, again based on the same actions,
Myers moved (unsuccessfully) to amend his complaint in the Fifth Lawsuit
to add all three of his claims from the First Lawsuit—age discrimination,
conversion, and defamation. Furthermore, he later requested punitive
damages and alleged that the case began with a “slanderous email” from a
senior executive at Freescale and resulted in the human resources manager
defaming Myers.

¶21           Myers’s ultimate goal in this case clearly mirrored that of his
previous cases; in fact, he acknowledged in superior court that he has “been
suing [Freescale] for damages from [w]rongful termination for more than
four and a half years with no Jury Trial.” Thus, the Fifth Lawsuit arises out
of the same transactional nucleus of facts as the previous lawsuits.

¶22          With respect to the remaining three criteria, see Mpoyo, 430
F.3d at 987, Freescale’s interest in finality of the judgment in the First


                                     6
                        MYERS, JR. v. FREESCALE
                          Decision of the Court

Lawsuit would be impaired if the Fifth Lawsuit were allowed to continue.
Both the First and the Fifth Lawsuits involve alleged infringement of the
same rights related to the investigation into Myers and termination of his
employment, although the Fifth Lawsuit is one step removed (alleging lies
about the investigation). Finally, Myers presented the same evidence—the
Housley Affidavit—in the Fifth Lawsuit as he did in the First Lawsuit’s
post-judgment motions. Accordingly, the superior court did not err by
finding Myers’s claim for fraud on the court to be barred by claim
preclusion.

III.   Myers’s Discovery Motions.

¶23          Myers also argues that the superior court erred by not
permitting him to complete discovery. We review the superior court’s
discovery and disclosure rulings for an abuse of discretion. Marquez v.
Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 2013).

¶24            Myers contends that the superior court improperly (1) denied
his motions to compel production of documents related to Freescale’s
sexual harassment investigation, (2) denied his request for the court to
conduct an in camera review of Freescale’s privilege log, and (3) failed to
permit Myers to depose Freescale’s custodian of records. But Myers’s brief
on appeal fails to offer any legal authority to support his contentions and
fails to otherwise explain how the superior court’s rulings were an abuse of
discretion. See ARCAP 13(a)(7)(A); Ritchie v. Krasner, 221 Ariz. 288, 305, ¶
62 (App. 2009) (failure to develop argument on appeal results in waiver).

¶25            Moreover, the record does not support Myers’s claims of
error. Freescale avers that it fully complied with its disclosure obligations,
including providing a privilege log for undisclosed items, and Myers offers
no record evidence to controvert that avowal. And Myers in fact deposed
Brush, who was also Freescale’s listed custodian of records, concerning the
documents produced by Freescale. Finally, Myers failed to even argue that
the documents he requested for in camera review were not privileged,
much less make a “factual showing to support a reasonable, good faith
belief that the document is not privileged.” See Lund v. Myers, 232 Ariz. 309,
312, ¶ 15 (2013). We thus affirm the superior court’s discovery rulings.

IV.    Post-Judgment Motions.

¶26           Myers contends that the superior court erred by denying his
post-judgment motions asserting fraud on the court. We review this denial
for an abuse of discretion. Searchtoppers.com, L.L.C. v. TrustCash LLC, 231
Ariz. 236, 241, ¶ 20 (App. 2012).


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                        MYERS, JR. v. FREESCALE
                          Decision of the Court

¶27           First, Myers failed to develop any legal argument to support
this claim of error on appeal. See ARCAP 13(a)(7)(A). Moreover, the
allegations in Myers’s post-judgment motions (which largely restated the
allegations of his complaint) do not affect the basis of the superior court’s
ruling that because Myers had previously litigated the same claims, his
claims in the Fifth Lawsuit were barred by claim preclusion as a matter of
law. Thus, the superior court did not abuse its discretion by denying
Myers’s post-judgment motions.

V.    Attorney’s Fees and Costs on Appeal.

¶28           Freescale requests an award of its attorney’s fees and costs on
appeal, as relevant here, under A.R.S. § 12-349 and ARCAP 25. The statute
permits an award of reasonable attorney’s fees if a party brings a claim
“without substantial justification,” meaning a claim that “is groundless and
is not made in good faith.” A.R.S. § 12-349(A)(1), (F); see also ARCAP 25
(authorizing sanction of costs or attorney’s fees for a frivolous appeal).

¶29            Based on our review of the record and the briefing on appeal,
we conclude that Myers brought this action and filed this appeal without
substantial justification, and that the appeal is frivolous. See A.R.S. § 12-
349(A)(1), (F). Myers has filed five lawsuits related to the sexual
harassment investigation and his termination of employment. In three
prior cases (the Second, Third, and Fourth Lawsuits), courts have found
Myers’s lawsuits barred by claim preclusion. Despite the initial dismissal
of the First Lawsuit and the three previous dismissals based on claim
preclusion, Myers brought the Fifth Lawsuit asserting the same claims,
which remain barred by claim preclusion. A plaintiff who repeatedly
brings litigation over the same issue after courts have previously stated he
is barred from doing so, does so “without substantial justification.” See
A.R.S. § 12-349(F). Accordingly, and having considered all relevant factors
set forth in § 12-350, we award Freescale reasonable attorney’s fees and
costs on appeal as a sanction against Myers under A.R.S. § 12-349 and
ARCAP 25, contingent upon Freescale’s compliance with ARCAP 21.




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                        Decision of the Court

                             CONCLUSION

¶30           For the foregoing reasons, we affirm. We award reasonable
attorney’s fees and costs on appeal to Freescale upon compliance with
ARCAP 21.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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