F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               MAR 29 2005
                             FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 MICHAEL L. SAVILLE,

          Plaintiff - Appellant,

 v.                                                         No. 03-4172
                                                         (2:02-CV-598-TC)
 INTERNATIONAL BUSINESS                                       (D. Utah)
 MACHINES CORPORATION,
 a New York corporation,

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before HENRY, BALDOCK, and BRISCOE, Circuit Judges.


      In light of the Appellant’s Motion to Waive Oral Argument, we vacated

oral arguments in this matter and excused counsel from appearing in Oklahoma

City, Oklahoma. Having now examined the briefs, the supplemental briefs and

appendix, and the record, this panel has determined unanimously to decide and

submit this case on the briefs. See F ED . R. A PP . P. 34(f); 10 TH C IR . R. 34.1(G).



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
      In their supplemental briefs, both parties acknowledge that the appeal in

this case (Saville II) is now moot because the district court has reached a final

decision in Mr. Saville’s earlier-filed case (Saville I). See Aplt’s Supl. Br. at 2

(“With respect to the issue of mootness, Mr. Saville recognizes that Judge

Benson’s recent decision in Saville I is a final decision and, as a practical matter,

probably does render Mr. Saville’s appeal in the instant case (“Saville II”)

moot.”); Aple’s Supl. Br. at 4 (“the court should . . . summarily dismiss his

present appeal as moot . . . .”).

      Whether we should dismiss the case with prejudice, however, is disputed.

Mr. Saville advocates a dismissal without prejudice, which would leave open the

possibility of him refiling this appeal in Saville II if he successfully appeals Judge

Benson’s recent decision in Saville I. IBM urges us to dismiss the appeal with

prejudice as a matter of law and asserts that under res judicata principles, we must

either dismiss the appeal as moot or affirm the district court’s judgment.

      “Under res judicata, or claim preclusion, 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 the prior action.” Satsky v. Paramount Comm., Inc., 

, 1467 (10th Cir. 1993) (internal quotations omitted). Res judicata

requires the satisfaction of four elements: (1) the prior suit must have ended with

a judgment on the merits; (2) the parties must be identical or in privity; (3) the


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suit must be based on the same cause of action; and (4) the plaintiff must have

had a full and fair opportunity to litigate the claim in the prior suit. Nwosun v.

Gen. Mills Rests., Inc., 

, 1257 (10th Cir. 1997).

      Mr. Saville concedes that the second, third, and fourth elements of res

judicata are satisfied. He acknowledges in his opening brief that “the parties are

the same, and, for the sake of argument, Mr. Saville is willing to concede that

although the suits are based on different causes of action, the suits are based on

the same set of underlying facts and transactions.” Aplt’s Br. at 9. He also

concedes the “opportunity” element: “Mr. Saville does not dispute that he had

multiple opportunities to bring his claim of discrimination in violation of the Age

Discrimination in Employment Act into the Fair Labor Standards Act lawsuit

(referred to herein as ‘Saville I’).” Aplt’s Reply Br. at 1.

      Mr. Saville asserted in his original briefs that res judicata principles could

not apply to Saville II because the first element of res judicata remained

unsatisfied: Saville I had not yet proceeded to a final judgment on the merits. In

the first sentence of the section of his brief entitled “Summary of Argument,” he

states “[t]he claims in Saville I had not yet proceeded to any judgment, much less

a final judgment, therefore, the trial court should not have applied any res judicata

principles such as claim preclusion or the rule against claim splitting to bar the

claim in Saville II.” Aplt’s Br. at 7. He even asserted that “[c]ertainly, if the


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claims in Saville II could have been brought in Saville I, and if Saville I had

proceeded to some final disposition or judgment, then the second, later, suit of

Saville II would and should be precluded.” Aplt’s Br. at 11.

      Judge Benson recently granted summary judgment in IBM’s favor in Saville

I. See Order & Opinion, Case 2:00-cv-681 in the District Court for the District of

Utah, entered February 24, 2005. Coupled with Mr. Saville’s acknowledgment in

his reply brief that “he had multiple opportunities to bring his claim of

discrimination in violation of the Age Discrimination in Employment Act into the

Fair Labor Standards Act lawsuit,” Aplt’s Reply Br. at 1, this final judgment on

the merits in Saville I compels us to conclude that Mr. Saville has conceded each

element of res judicata as to the appeal in Saville II. Our review of the case also

reveals that each element of res judicata is satisfied.

      For the foregoing reasons, Mr. Saville’s appeal in Saville II, Tenth Circuit

case number 03-4172, is moot. We hereby dismiss the appeal with prejudice.



                                               Entered for the Court


                                               Robert H. Henry
                                               Circuit Judge




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