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[NOT FOR PUBLICATION]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-
