FILED
                            NOT FOR PUBLICATION
                                                                              MAR 13 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

RYAN ROBERT BAKER,                               No. 18-16699

              Plaintiff-Appellant,               D.C. No. 4:18-cv-00064-JGZ

 v.
                                                 MEMORANDUM*
CHARLES L. RYAN,

              Defendant-Appellee,

 and

UNKNOWN PARTIES, named as 1-100,
Members of the Protective Custody
Committee; et al.,

              Defendants.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding

                      Argued and Submitted February 6, 2020
                                Phoenix, Arizona

Before: O’SCANNLAIN, GRABER, and HURWITZ, Circuit Judges.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Plaintiff Ryan Baker timely appeals the dismissal of his 42 U.S.C. § 1983

action against Defendant Charles Ryan, Director of the Arizona Department of

Corrections. The district court held that an earlier state-court judgment bars

Plaintiff’s claim. Reviewing de novo, Wojciechowski v. Kohlberg Ventures, LLC,

, 689 (9th Cir. 2019), we reverse and remand for further proceedings.

      We must apply the Arizona law of claim preclusion. Migra v. Warren City

Sch. Dist. Bd. of Educ., 

, 81 (1984) (citing 28 U.S.C. § 1738). Under

Arizona law, "a final judgment on the merits rendered without fraud or collusion

by a court of competent jurisdiction in a prior suit involving the same parties bars a

second lawsuit based on the same cause of action." Norriega v. Machado, 

, 1389 (Ariz. Ct. App. 1994).

      Claim preclusion does not apply here because the prior state-court judgment

was not "on the merits." As to Defendant, the state court held that Plaintiff had

failed to accomplish service of process. Failure to accomplish service of process

deprives the Arizona courts of personal jurisdiction over the defendant. Bank of

N.Y. Mellon v. Dodev, 

, 558 (Ariz. Ct. App. 2018). Accordingly, the

judgment against Defendant was not "on the merits." See Phillips Petro. Co. v.

Shutts, 

, 805 (1985) ("[A] judgment issued without proper personal

jurisdiction over an absent party is not entitled to full faith and credit elsewhere


                                           2
and thus has no res judicata effect as to that party."); see also Ruiz v. Snohomish

Cty. Pub. Util. Dist. No. 1, 

, 1164 (9th Cir. 2016) (holding that a

dismissal for lack of personal jurisdiction is not "on the merits" for purposes of

claim preclusion).

      Nor was the state court’s judgment against the State of Arizona "on the

merits."1 Arizona Revised Statutes section 31-201.01(L) defines the scope of the

State’s waiver of sovereign immunity for suits like Plaintiff’s state action.

Relevant here, Arizona has provided that Plaintiff "may not bring a cause of action

. . . unless the complaint alleges specific facts from which the court may conclude

that the plaintiff suffered serious physical injury or the claim is authorized by a

federal statute." Ariz. Rev. Stat. § 31-201.01(L). We understand the state court to

have dismissed the action because Plaintiff did not allege a serious physical injury

and because the State was not a proper defendant under § 1983. That is, the State

had not waived its sovereign immunity. The judgment was thus not "on the

merits." 

; cf. F.D.I.C. v. Meyer, 

, 475

(1994) ("Sovereign immunity is jurisdictional in nature.").


      1
        Plaintiff declined to argue this precise point but, because the question is a
legal one and because Defendant had an opportunity to argue the point and did so,
we exercise our discretion to address the issue. Phillips v. E.I. DuPont de Nemours
& Co. (In re Hanford Nuclear Reservation Litigation), 

, 1007 (9th Cir.
2008) ("We have discretion . . . to overlook any waiver.").
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We need not, and do not, reach any other issues.

REVERSED and REMANDED for further proceedings.




                                  4
                                                                          FILED
Baker v. Ryan, No. 18-16699
                                                                           MAR 13 2020
O’SCANNLAIN, J., dissenting:                                           MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS

      The majority decides this case on the basis that there was no adjudication on

the merits in state court. However, Baker never argued, either at the district court

or before this Court, that the prior state court judgment was not an adjudication on

the merits as to the State. And this Court “will not ordinarily consider matters on

appeal that are not specifically and distinctly argued in appellant's opening brief.”

Miller v. Fairchild Industries, Inc., 

, 738 (9th Cir. 1986). In fact,

even in open court, Baker’s counsel conceded that the issue was never raised and

did not even attempt to make the argument, despite the Court’s invitations. In

respectful disagreement with the majority’s statement in footnote 1, I am reluctant

to overlook Baker’s waiver, and thus I respectfully dissent.

      In any event, I am persuaded that Ryan, in his official capacity, was in

privity with the State. Ariz. Downs v. Super. Ct. of Ariz., Maricopa Cty., 

, 1232 (Ariz. 1981). Baker sought the same injunctive relief against the State

that he now seeks against Ryan. Indeed, at oral argument, Baker’s counsel even

conceded that there was privity. Furthermore, Baker’s claims stem from identical

facts, and the complaints in both suits are virtually identical.

      I would affirm the decision of the district court.




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