Citations
- 97 F. Supp. 3d 1287
Full opinion text
MEMORANDUM OPINION AND AMENDED ORDER
JAMES 0. BROWNING, District Judge.
THIS MATTER comes before the Court on the Motion for Summary Judgment That Federal Claims in the Third Amended Complaint Are Barred by the Doctrine of Res Judicata, filed June 25, 2014 (Doc. 26)(“Motion”). The Court held a hearing on the Motion on December 19, 2014. The primary issue is whether the Stipulation of Dismissal of All Federal Claims Against Defendants with Prejudice, No. CIV 12-0513 KBM/RHS (Doc. 14) (D.N.M. June 15, 2012)(“Stipulation”), entered in an earlier case, bars the federal claims in the Third Amended Complaint for Damages for Deprivation of Rights Under the New Mexico Constitution and the Constitution of the United States, 42 U.S.C. § 1983, Interference with Contractual Relations, Taking and Inverse Condemnation, filed February 24, 2014 (Doc. l-l)(“Current Complaint”), by way of claim preclusion. Because the Stipulation dismissed “any federal claim brought [in an earlier complaint based on the same incident], express or implied ... with prejudice,” claim preclusion bars the federal claims in the Current Complaint. The Court, therefore, grants the Motion and dismisses all federal claims. There being.no remaining federal claims and this case being before the Court exclusively on the Court’s federal-question subject-matter jurisdiction, the Court will remand this case to the First Judicial District Court for the State of New Mexico.
FACTUAL BACKGROUND
On April 13, 2012, Plaintiff-Appellant New Mexico Consolidated Construction Services, LLC (“NM Consolidated”) filed a Notice of Appeal and Petition for Certiora-ri and Complaint for Damages Under 42 U.S.C. § 1983, Interference with Contractual Relations, Taking, Inverse Condemnation and Civil Conspiracy in the First Judicial District Court for the State of New Mexico, No. CIV 12-0513 KBM/RHS (Doc. 1-1) (D.N.M. Apr. 13, 2012)(“First Complaint”). See Motion ¶ 1, at 4; Plaintiffs Response to Motion for Summary Judgment That Federal Claims in the Third Amended Complaint Are Barred by the Doctrine of Res Judicata ¶ 1, at 2, filed August 15, 2014 (Doc. 35)(“Response”)(ad-mitting this fact). The First Complaint names as defendants all of the individuals and entities now named as Defendants in the Current Complaint; it also names De-fendanb-Appellee City Council of Santa Fe as an appellee. See First Complaint ¶¶ 7-13, at 11-12; Motion ¶ 2, at 4; Response ¶ 2, at 2 (admitting this fact). The First Complaint alleged, among its five claims, two federal causes of action relevant to this case: (i) a cause of action in Count III, under the Fifth and Fourteenth Amendments to the Constitution of the United States, for a taking of property without just compensation, see First Complaint ¶¶ 104-105, at 28; and (ii) a cause of action in Count V, under 42 U.S.C. § 1983, for violations of unspecified “rights and privileges guaranteed by the Constitution,” First Complaint ¶¶ 107-108, at 30-31. See Motion ¶ 3, at 4; Response ¶ 3, at 3 (admitting this fact).
On May 12, 2012, the defendants in that action removed the case to the United States District Court for the District of New Mexico. See Notice of Removal, No. CIV 12-0513 KBM/RHS (Doc. 1) (D.N.M. May 5, 2012); Motion ¶ 4, at 5; Response ¶ 4, at 3 (admitting this fact). On June 13, 2012, NM Consolidated filed a Stipulation of Dismissal of All ■ Federal Claims Against Defendants with Prejudice, No. CIV 12-0513 KBM/RHS (Doc. 13) (D.N.M. June 13, 2012), dismissing all federal claims against all defendants in that action with prejudice. See Motion ¶ 6, at 5; Response ¶ 6, at 3 (admitting this fact); id. ¶ 1, at 6; Defendants’ Reply in Support of Their Motion for Summary Judgment That Federal Claims in the Third Amended Complaint Are Barred by the Doctrine of Res Judicata ¶ 1, at 2, filed September 5, 2014 (Doc. 44)(“Reply”)(admitting this fact). NM Consolidated’s counsel and the Defendants’ counsel signed the Stipulation. Stipulation at 2-3; Motion ¶ 7, at 5; Response ¶ 7, at 3 (admitting this fact). The Stipulation dismissed, with prejudice, Count Ill’s Fifth Amendment takings claim and Counts V’s federal due-process, equal-protection, conspiracy, and § 1983 claims. See Stipulation at 2; Motion ¶ 8, at 5; Response ¶ 8, at 4 (admitting this fact). The Stipulation further provides:
It is the intent of this stipulation that any federal claim brought in this matter, express or implied, is dismissed with prejudice, however, no claims based on the Constitution, Statutes or Common Law of the State of New Mexico will be dismissed. . Plaintiff shall be free to allege any claim based on the Constitution, Statutes or Common Law of the state of New Mexico on remand to the District Court of the First Judicial District.
Stipulation at 2; Motion ¶ 9, at 5-6. See Response ¶ 9, at 4 (admitting this fact). The Stipulation preserved the counts based upon state causes of action. See Response ¶ 2, at 6; Reply ¶ 2, at 3 (admitting this fact). With the federal claims dismissed, the Honorable Karen B. Mol-zen, United States Magistrate Judge for the District of New Mexico, remanded the case to state court. See Order of Remand, No. CIV 12-0513 KBM/RHS (Doc. 16) (D.N.M. July 11, 2012); Motion ¶ 10, at 6; Response ¶ 10, at 4 (admitting this fact).
The ease proceeded in state court under cause No. D-101-CV-2012-01054. See Response ¶ 3, at 6; Reply ¶ 3, at 3 (admitting this fact). On or about January 22, 2013, NM Consolidated served subpoenas on the New Mexico School for the Arts (“NM School”) and the New Mexico School for the Arts/Arts Institute (“NM Institute”), requesting documents and tangible items relating to any dealings between the two organizations and the City of Santa Fe in regard to NM Consolidated’s property, St. Catherine’s Industrial School. Response ¶ 4, at 6; Reply ¶ 4, at 3 (admitting this fact). The two organizations responded to the subpoenas by producing at least six documents in which City of Santa Fe officials expressed interest in acquiring St. Catherine’s during the same time period that NM' Consolidated had a zoning petition before the City Council. See Response ¶ 5, at 6-7; id. ¶ 12, at 8; Reply ¶ 5, at 3 (admitting this fact); id. ¶ 12, at 6 (admitting this fact). City of Santa Fe officials had expressed interest in acquiring St. Catherine’s, but the City of Santa Fe did not have sufficient funds to purchase it or to pay fair market value in condemnation proceedings. See Response ¶6, at 7; Reply ¶ 6, at 5. The zoning hearing before the City of Santa Fe’s Historic Design Review Board (“SF Design Board”) requested the relocation of historic buildings on the St. Catherine’s campus. See Response ¶ 7, at 7; Reply ¶ 7, at 5 (admitting this fact); Electronic Mail Transmission from John Polk to David Rasch Re: St. Catherine’s Indian School, filed August 15, 2014 (Doc. 35-12). In March, 2011, the United States Department of Veterans Affairs posted a Notice of Availability and a Draft Environmental Assessment of the School property for comment, giving notice that it intended to purchase property around St. Catherine’s school to expand the Santa Fe National Cemetery. See Response ¶ 8, at 7; Reply ¶ 8, at 5. NM Consolidated filed the petition to relocate the buildings with the SF Design Board on September 12, 2011, the SF Design Board denied the petition on January 10, 2012,- and the City Council of Santa Fe formally denied NM Consolidated’s appeal from the SF Design Board on March 28, 2012. See Response ¶ 11, at 7; Reply ¶ 11, at 6 (admitting this fact); City of Santa Fe Historic Design Review Board Findings of Fact ahd Conclusions of Law, filed August 15, 2014 (Doc. 35-13).
On May 10, 2013, NM Consolidated filed an Amended Notice of Appeal and Petition for Certiorari and Second Amended Complaint for Damages for Deprivation of Rights Under the Federal and New Mexico Constitutions, Interference with Contractual Relations, Taking, Inverse Condemnation and Civil Conspiracy in the First Judicial District Court for the State of New Mexico (“Second Complaint”). Motion ¶ 11, at 6; Response ¶ 11, at 4 (admitting this fact). The Second Complaint named two new defendants: (i) the NM School, which NM Consolidated identified as a “New Mexico charter school formed under the laws of the State of New Mexico governing such schools, and is a part of the átate and local public schools administration and ... [a] state actor”; and (ii) the NM Institute, which NM Consolidated identified as a “New Mexico nonprofit corporation, acting on behalf of and for the Charter School or as agents of the Charter School.” Motion ¶ 12, at 6-7; Response ¶ 12, at 4 (admitting this fact). On July 15, 2013, NM Consolidated withdrew its Second Complaint. See Motion ¶ 13, at 7; Response ¶ 13, at 4 (admitting this fact).
On September 20, 2013, in a new and separate action in federal court, NM Consolidated filed a Complaint for Damages for Deprivation of Rights Pursuant to 42 U.S.C. § []1983, Interference with Contractual Relations and Civil Conspiracy, No. CIV 13-0907 WPL/KBM (Doc. 1) (D.N.M. Sept. 20, 2013)(“Third Complaint”), against the NM School and the NM Institute. Motion ¶ 14, at 7; Response ¶ 14, at 4 (admitting this fact). On October 17, 2013, the Honorable Sarah M. Singleton, New Mexico District Judge for the First Judicial District, issued an Order Granting in Part and Denying in Part Plaintiffs Motion for Leave to File a Third Amended Complaint, No. D-101CV-2012-01054 (NM.Dist.Ct. Oct. 17, 2013) (“Order”), which allowed NM Consolidated to allege claims under- 42 U.S.C. § 1983 to the extent that they had not been alleged in the First Complaint or Second Complaint. See Motion ¶ 16, at 8; Response ¶ 16, at 4-5 (admitting this fact). Judge Singleton stated:
1. The 42 USC § 1983 claims that were not alleged in the [F]irst and [Second complaint can be raised in the [Current Complaint], Specifically, those allegations include that there were third parties who had some financial interest in obtaining the property at issue in this case, or who somehow colluded with the City of Santa Fe in an effort to gain the property and to prevent Plaintiff from achieving its desire to sell a portion of the property, are allowed.
2. The [Stipulation filed in Federal Court, as written, precludes what was raised in the [First] complaint either expressly or impliedly, but it does not preclude claims that are based on newly discovered] evidence that alleges new theories for potential violations of 42 USC § 1983.
3. The amendment as to 42 USC § 1983 is denied because the case law requires some sort of race or class based animus and that is not alleged.
4. The claim under federal law for the taking of property without compensation, which to some extent are the bulk of which [sic] was dismissed with prejudice by the Federal Court, are allowed so long as the new facts would support a federal takings claim.
5. No ruling is made regarding how the Federal Court should treat the prior Stipulation of Dismissal entered into by the parties.
Order ¶¶ 1-5, at 1-2. See Motion ¶¶ 17-18, at 8; Response ¶¶ 17-18, at 5 (admitting these facts).
PROCEDURAL BACKGROUND
On February 12, 2014, NM Consolidated filed the Current Complaint in the state court, reasserting its claims for takings and deprivation of property rights under § 1983. See Motion ¶ 19, at 8; Response ¶ 19, at 5 (admitting this fact). The Current Complaint drops the claims that the Second Complaint had alleged against the NM School and the NM Institute. See Motion at 9; Response ¶ 20, at 5 (admitting-this fact). The Defendanh-Appellees removed the case to federal court once again, giving rise to the current proceeding. See Motion ¶ 21, at 9; Response ¶ 21, at 5 (admitting this fact); Notice of Removal, filed February 24, 2014 (Doc. 1). The Current Complaint mentions the NM School and the NM Institute in connection with the allegations against the Defendant-Appellees, and alleges:
a. Since at least September 2011, during the time the Plaintiffs proposal was pending before the HDRB, there were discussions between members of the Governing Council of NMSA, members of the Board of Directors of the Arts Institute and City officials and City Council members regarding purchase of the Plaintiffs property by the City and a lease between the City and NMSA/Art Institute.
b. On information and belief supported by documentary evidence, on or about September 21, 2011, City Manager Robert Romero, City Attorney Geno Zamora and City Finance Director Mel Morgan agreed with officials of NMSA/Art Institute to “acquire” the Plaintiffs property “through all means necessary.”
e. On or about September 2, 2011, over three (3) months before the Plaintiffs hearing before the HDRB and over four (4) months before the Proposed Relocation was denied by the HDRB, officials of NMSA/Art Institute agreed to solicit Robert Romero and Geno Zamora to create a Resolution for the City Council to acquire the Plaintiffs property and to solicit Mayor Cross to present the Resolution to the City Council after the Plaintiffs proposal was denied by the HDRB.
Current Complaint ¶¶ 57a-c, at 11-12 (emphasis in original). See Motion ¶ 22, at 9; Response ¶ 22, at 5 (admitting this fact).
The First Complaint also mentioned the NM School in connection with allegations about the Defendant-Appellants’ alleged plans to acquire NM Consolidated’s property through purchase or condemnation, and alleged that there was talk that the City of Santa Fe desired to acquire the property and move NM School onto the grounds. See Motion ¶ 23, at 9; Response ¶ 23, at 5 (admitting this fact); First Complaint ¶ 38, at 17; id. ¶¶ 70-72, at 21. There are no allegations in either the First Complaint or the Current Complaint that the NM School is a for-profit business or that the City of Santa Fe’s efforts to acquire NM Consolidated’s property for NM School represents a non-public use, which would violate the Takings Clause, U.S. Const, amend. V. See Motion ¶ 24, at 10; Response ¶24, at 6 (admitting this fact). The Current Complaint presents additional facts in support of NM Consolidated’s allegations that the City of Santa Fe intended to acquire NM Consolidated’s property for the NM School and the NM Institute, and that the City took concerted steps to do so while NM Consolidated was petitioning the SF Design Board and the City Council to relocate some of the historic buildings on its property. See Motion ¶ 25, at 10; Response ¶ 25, at 6 (admitting this fact).
The Defendant-Appellees filed the Motion June 25, 2014. They argue that they are entitled to summary judgment on the ground that the Stipulation entered in federal court in the initial case — -the one that the First Complaint initiated — bars the federal claims in the Current Complaint. See Motion at 16-19. They argue that, “[t]o establish that res judicata applies, the party asserting the defense must satisfy four (4) 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 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.” Motion at 14 (emphasis in original)(citing Nwosun v. Gen. Mills Restaurants, Inc., 124 F.3d 1255, 1257 (10th Cir.1997)). They address these prongs in sequence. First, they argue that the Stipulation was effectively a “judgment on the merits,” because “NMCCS stipulated to a voluntary dismissal with prejudice of not only the takings and Section 1983 deprivation of property claims in Counts III and V of the [First Complaint], but also to claims alleging federal due process, equal protection, conspiracy and other claims pursuant to 42 U.S.C. § 1983.” Motion at 16-17 (emphasis in original). They assert that “Tenth Circuit case law is clear” that when an order of dismissal under Rule 41(a)(1)(A)© is with prejudice, it operates as a final adjudication on the merits. Motion at 17 (citing Schmier v. McDonald’s LLC, 569 F.3d 1240, 1242 (10th Cir.2009)).
Second, they assert that “there is no dispute” that the parties in the First Complaint’s ease and in this case are the same. Motion at 17. Third, they argue that the Current Complaint “is based on the same cause of action” as the First Complaint. Motion at 17. They address the seemingly contrary implication in Judge Singleton’s Order:
Although Judge Singleton found that the Stipulation did not preclude federal claims that are based on newly discovered evidence alleging new theories for potential violations of Section 1983, the [Current] Complaint does not satisfy this requirement.... NMCCS already alleged in the [First] Complaint that the City had the intent of acquiring NMCCS’s property to move the NMSA onto the grounds ever since 2005 and that it was prepared to spend $2,000,000 to purchase it for that purpose or to condemn it. The [Current] Complaint simply presents additional factual allegations to argue that the City Defendants followed through on this intent while NMCCS’s petition to relocate several of the historic buildings on its property was pending before the HDRB and/or before it went on appeal to the City Council. The fact that a government has intentions to acquire private property for a public purpose through either purchase or its eminent domain powers does not violate the takings clause unless it does not offer just compensation. Thus, there is no new theory of recovery for violation of Section 1983 on this set of facts.
And, NMCCS voluntarily dismissed any claims for conspiracy under Section 1983 in its Stipulation. Accordingly, any allegations that the City Defendants conspired with the NMSA/Institute to deprive NMCCS of its property in violation of Section 1983 would certainly have to be considered federal claims that were “implied” in the [First] Complaint and the Stipulation governing that Proceeding.
Motion at 18 (citations omitted). As to the last prong, the Defendant-Appellees again assert that its satisfaction is “undisputed.” Motion at 18. They assert that no evidence exists to show that NM Consolidated “encountered any procedural limitations” in the First Complaint’s case, and, thus, NM Consolidated’s opportunity to litigate its claims to completion then and there were full and fair. Motion at 19.
In its Response, NM Consolidated defends the viability of its claims, unsurprisingly, exclusively on the third prong. See Response at 9-12. It argues that the First Complaint and the Current Complaint “are based on a different set of facts and different alleged wrongs.” Response at 9 (emphasis omitted)(capitalization altered). It asserts that ¶ 57a-k of the Current Complaint sets forth a “series of contacts ... that would not have formed a basis for a federal claim if the City had not been considering the Plaintiffs Petition to relocate buildings on the St. Catherine’s campus at the same time.” Response at 9. NM Consolidated devotes substantial space to reiterating the factual bases and legal theory behind its claims, but relatively little time distinguishing the First Complaint — and the claims that the Stipulation forfeited — from those in the Current Complaint. See Response at 9-12. To the extent that it identifies a new theory, it is that the SF Design Board’s and City Council’s improprieties constitute a due-process violation, and the Current Complaint alleges that violation, while the First Complaint focused solely on impropriety of the substantive decision. See Response at 9-12. It states that “[t]he exhibits [— meaning the six documents that the NM School and the NM Institute produced in discovery — ] show that the claims in the [Current] Complaint are based on different facts and circumstances tha[n] those expressed in the [First] Complaint.” Response at 12.
In their Reply, the Defendant-Appellees contend that NM'Consolidated’s due-process argument “is pure speculation and not supported by the[six] exhibits.” Reply at 7. They assert that NM Consolidated alleged all the same claims and theories in its First Complaint that it now alleges in the Current Complaint, and that the exhibits, at most, “simply provide additional evidence to support their initial claims.” Reply at 8. They also note that the article from the New Mexican, to which NM Consolidated cites in support of many of its contentions, was published in September, 2011, several months before NM Consolidated filed the First Complaint. See note 8, supra, and accompanying text. The Defendant-Appellees sum up their argument as follows:
[The Current] Complaint does not contain any new federal causes of action. NMCCS’s due process claims are brought pursuant to 42 U.S.C. § 1983 and allege that the City Defendants acted under color of state law to deprive NMCCS of its property rights under the laws and Constitution of the United States. These are the same claims that NMCCS alleged in Count V of its [First] Complaint, which were dismissed with prejudice when this case was removed to federal court the first time.
Likewise, NMCCS’s taking claim in Count II of [the Current] Complaint is based upon allegations that the City Defendants placed restrictions on the beneficial use of NMCCS’s property. This claim has nothing to do with the exhibits described above and/or NMSA and the Institute. Rather, it is based upon the same Fifth Amendment takings claim that NMCCS alleged in its [First] Complaint and that takings claim was subsequently dismissed with prejudice.
Reply at 8-9 (emphasis in original) (citations omitted).
The Court held a hearing on December 19, 2014. See Transcript of Hearing (taken December 19, 2014)(“Tr.”). At the hearing, NM Consolidated clarified its position that it is free to assert claims that, while identical in name or characterization to the claims in the First Complaint, arise out of evidence discovered after the date that the Stipulation was executed, June 13, 2012. See Tr. at 12:5-13:5 (Court, Anderson, Polk). NM Consolidated asserted that it filed the Current Complaint “incorporating federal claims based entirely upon facts that were ... not known prior to entering into th[e Stipulation.” Tr. at 14:2^1 (Polk). The Court asked whether some of the Current Complaint’s claims are based on events that occurred before June 13, 2012, to which NM Consolidated responded:
Not really, Your Honor. [Although] there may have been a few events that occurred before that, ... the problem of it is ... that we had our appeals ... denied, and we did not know that the city and the school and their folks were acting in concert to prohibit us from developing the property.
Tr. at 14:25-15:8 (Court, Polk).
The remainder of the Court’s questioning of NM Consolidated focused on NM Consolidated advancing its argument that, while the facts giving rise to a cause of action may have accrued before the First Complaint, (i) subsequent evidence supports a new theory of federal due-process, takings, and § 1983 claims, thus making the Current Complaints new and distinct from the ones that the Stipulation dismissed; and (ii) NM Consolidated did not uncover all the evidence supporting those claims until after the Stipulation, and NM Consolidated could not have intended to dismiss a claim about which it knew nothing.
THE COURT: Well, but that just sounds like a takings claim, and wasn’t that — wasn’t that what — what you gave up?
MR. POLK: Well, they all merge together in many ways, Judge. I mean, you know, we’re dealing with the same fundamental principles here. The — ■ the — it depends on how you — how you view it. A takings claim is they just walked in and said, we’re going to take this property or we’re going to flat refuse to allow you to develop it under any circumstances. They didn’t do that. They went through this charade.
Tr. at 18:10-18 (Court, Polk).
The Defendant-Appellees reiterated their position from the briefing, adding that “res judicata bars a party from litigating claims that were either actually raised or could have been raised in a previous' action.” Tr. at 19:20-22 (Anderson). The Court returned to NM Consolidated, which conceded that the “[Stipulation covers the Fifth Amendment claim and it covers the 1983 claim[, but that njothing else is covered.” Tr. at 27:22-23 (Polk). The Court asked what other claims there could possibly be in this case, other than § 1983 claims, and NM Consolidated replied that it could sue directly under the Fifth and Fourteenth Amendments, without need for § 1983. See Tr. at 27:25-28:8 (Polk, Court).
NM Consolidated appeared to lose confidence in its legal position toward the end of the hearing, and began asking the Court whether and how it could use rule 60(b) to “reraise the federal claims” that the Stipulation dismissed. Tr. at 29:10 (Polk). NM Consolidated noted: ‘We were not aware we got caught because we didn’t know what they were doing....” Tr. at 29:19-20 (Polk). NM Consolidated expressed further interest in restyling its defense of the Motion into a rule 60(b) motion — presumably filed in the First Complaint’s case — to reform the Stipulation. See Tr. at 33:7-34:5 (Polk)(“I could rephrase this into a 60(b) very — very easily-[I]f you could give me 10 or 20 days to file a 60(b) motion ... I think we could flesh out the record.”). The Court dissuaded NM Consolidated from filing a rule 60(b) motion and stated that it would work the issues out via its ruling on the Motion. See Tr. at 35:1-3 (Court)(“I think it might be better just to hold off and let me sort of sort this out with this [M]otion rather than filing new motions.”).
LAW REGARDING SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). “The movant bears the initial burden of ‘show[ing] that there is an absence of evidence to support the non-moving party’s case.’ ” Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M.2013) (Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence — using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial.” Celotex Corp. v. Catrett, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting) (emphasis in original). Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
1. The Genuine-Dispute Standard.
The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact ... is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. CIV 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006); Fed. R.Civ.P. 56(e)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the factfinder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448, 20 L.Ed. 867 (1871)); Vit-kus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
2. General Analytical Principles.
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. 2505. Third, the court must resolve all reasonable inferences and doubts in favor of the nonmov-ing party, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
3. Summary Judgment in the Qualified-Immunity Context.
In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Supreme Court of the United States concluded that summary judgment was appropriate where video evidence “quite clearly contradicted” the plaintiffs version of the facts. 550 U.S. at 378-81, 127 S.Ct. 1769. The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed.R.Civ.P. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.
550 U.S. at 380-81, 127 S.Ct. 1769 (emphasis in original).
The United States Court of Appeals for the Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), and explained:
[Bjecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury Could believe it, a court should not adopt that version of the facts[.]” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir.2008) (quoting Scott [v. Harris], 550 U.S. at 380, 127 S.Ct. 1769).
Thomson v. Salt Lake Cnty., 584 F.3d at 1312. In Rhoads v. Miller, 352 Fed.Appx. 289 (10th Cir.2009) (unpublished) (Tymko-vich, J.), the Tenth Circuit “explained that the blatant contradictions of the record must be supported by more than other witnesses’ testimony[.]” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010) (Browning, J.) (citation omitted).
In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris, 550 U.S. 372, 377, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). “[T]his usually means adopting ... the plaintiffs version of the facts,” 550 U.S. at 378, 127 S.Ct. 1769, unless that version “is so utterly discredited by the record that no reasonable jury could have believed him,” 550 U.S. at 380, 127 S.Ct. 1769. In Scott, the plaintiffs testimony was discredited by a videotape that completely contradicted his version of the events. 550 U.S. at 379, 127 S.Ct. 1769. Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’ testimony. There is only other witnesses’ testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads’ alcoholism and memory problems go to the weight of his testimony, not its admissibility. ... Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistance or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law. under Graham v. Connor, 490 U.S. 386, 395-96, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and this court’s precedent.
Rhoads v. Miller, 352 Fed.Appx. at 291-92 (internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and “determine whether plaintiffs factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court” before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J., concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988) (Johnson, J., dissenting))(observing.that, even if factual disputes exist, “these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs’ facts”).
4. The Sham-Affidavit Rule.
The Tenth Circuit has stated that “[t]here is authority for the proposition that in determining whether a material issue of fact exists, an affidavit may not be disregarded because it conflicts with the affiant’s prior sworn statements.” Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986) (citing 10B Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice & Procedure § 2738, at 473-74 (2d ed. 1983) (“Wright & Miller”); 6 James Wm. Moore, Moore’s Federal Practice ¶ 56.22[1], at 56-1325 to 56-1326 (1985 ed.)). There are situations, however, where courts “disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue.” Franks v. Nimmo, 796 F.2d at 1237 (citing Foster v. Areata Assocs., Inc., 772 F.2d 1453, 1462 (9th Cir.1985); Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984); Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657-58 (11th Cir.1984); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364 (8th Cir.1983); Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)). The policy underlying these decisions is the “conclusion that the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.” Franks v. Nimmo, 796 F.2d at 1237 (citation omitted).
To determine whether a contradicting affidavit seeks to create a sham fact issue, [the Tenth Circuit] ha[s] looked to three factors: whether: “(1) the affi-ant was cross-examined during his earlier testimony; (2) the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence; and (3) the earlier testimony reflects confusion which the affidavit attempts to explain.”
Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th Cir.2001) (quoting Rios v. Bigler, 67 F.3d 1543, 1551 (10th Cir.1995)). In Ralston v. Smith & Nephew Richards, Inc., the Tenth Circuit found that the district court did not abuse its discretion in excluding later contradictory declarations in rendering its summary judgment ruling. See 275 F.3d at 973. The Tenth Circuit noted that there was no question that the declarant was cross-examined in his deposition, “that he had access to the pertinent evidence at the time of his deposition,” and “that there was nothing in the earlier deposition testimony reflecting any level of confusion or uncertainty concerning” the declarant’s testimony “requiring clarification or explanation.” 275 F.3d at 973.
5. Deferring Summary Judgment.
Rule 56(d) provides:
(d) When Facts Are Unavailable to the Nonmovant.
If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order. Fed.R.Civ.P. 56(d). Before 2010, this rule was rule 56(f); rule 56(d) “carries forward without substantial change the provisions of former subdivision (f).” Fed.R.Civ.P. 56(d) advisory committee committee’s notes to the 2010 amendments. “A party who seeks relief under subdivision (d) may seek an order deferring the time to respond to the summary judgment motion.” Fed.R.Civ.P. 56(d) advisory committee committee’s notes to the 2010 amendments. The rule permits a nonmovant to show by affidavit or declaration the need for additional discovery; a formal affidavit is thus not required. See Fed.R.Civ.P. 56(d). The rule permits a “written un-sworn declaration, certificate, verification, or statement subscribed in proper form as true under penalty of perjury to substitute for an affidavit.” Fed.R.Civ.P. 56(c) advisory committee committee’s notes to the 2010 amendments.
When a party files an affidavit or declaration, and moves for additional discovery time under rule 56(d), the party invokes the court’s discretion. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1553-54 (10th Cir.1993). “Unless dilatory or lacking in merit,” a party’s 56[ (d) ] application “should be liberally treated.” Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554 (citations omitted)(internal quotation marks). “The general principle of Rule 56(d) is that summary judgment should be refused where the nonmoving party has not had the opportunity to discover information that is essential to opposition.” Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir.2000). Rule 56(d) does not require, however, that summary judgment not be entered until discovery is complete. See Price ex rel. Price v. W. Res., Inc., 232 F.3d at 784.
“Rule 56[ (d) ] is not a license for a fishing expedition.... ” Lewis v. Ft. Collins, 903 F.2d 752, 758 (10th Cir.1990). To invoke rule 56(d), the party filing the affidavit or declaration must state with specificity how the desired time would allow it to meet its burden in opposing summary judgment. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554. A party opposing summary judgment may not invoke rule 56(d) based solely upon the assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment'are unavailable. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554. Moreover, while the summary judgment movant’s exclusive control of information weighs heavily in favor of relief under 56(d), see Price ex rel. Price v. W. Res., Inc., 232 F.3d at 783, merely asserting such is insufficient to justify denial of summary judgment, see Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554. Furthermore, “if the party filing the Rule 56[ (d) ] affidavit has been dilatory, or the information sought is either irrelevant to the summary judgment motion or merely cumulative, no extension will be granted.” Jensen v. Redevelopment Agency of Sandy City, 998 F.2d at 1554 (denying a rule 56(d) request and stating that “the record reflect[ed] that plaintiffs were dilatory in pursuing discovery prior to the filing of their 56[ (d) ] affidavit”). See Johnson v. Holmes, 377 F.Supp.2d 1039, 1044-45 (D.N.M.2004) (Browning, J.) (denying a 56(d) request where plaintiff did not explain why, during the discovery period that the court allowed, he did not obtain the discovery sought in his motion). The Tenth Circuit has summarized rule 56(d)’s requirements as follows:
A prerequisite to granting relief pursuant to Rule 56[ (d) ] is an affidavit furnished by the nonmovant. Although the affidavit need not contain evidentia-ry facts, it must explain why facts precluding summary judgment cannot be presented. This includes identifying the probable facts not available and what steps have been taken to obtain these facts. In this circuit, the nonmovant also must explain!, with specificity,] how additional time will enable him to rebut movant’s allegations of no genuine issue of fact.
Price ex rel. Prince v. W. Res., Inc., 232 F.3d at 783 (internal quotations and citations omitted). See Tadlock v. Lahood, 550 Fed.Appx. 541, 547 (10th Cir.2013) (unpublished) (citing Price ex rel. Price v. W. Res., Inc. for the requirements of rule 56(d) after the 2010 amendment); Douglass v. United Auto Workers Local Union 31, 188 Fed.Appx. 656, 658 (10th Cir.2006) (stating that the affidavit must state how the additional time would enable the party to meet its burden “with specificity”). A rule 56(d) affidavit or declaration must state, with specificity, what additional discovery is believed necessary. See Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1264 (10th Cir.2006); Chavez v. Perry, 142 Fed.Appx. 325, 334 (10th Cir.2005) (“To resist summary judgment on this basis (56[ (d) ]), a party must specifically identify what facts it seeks to discover and show how those facts would materially aid its case on the dispositive issues.”). If a party does not file an affidavit or declaration, a district court does not abuse its discretion in denying discovery. See Tadlock v. Lahood, 550 Fed.Appx. at 547.
LAW REGARDING RES JUDICATA IN FEDERAL-QUESTION CASES
“Under res judicata ... a final judgment on the merits of an action precludes the parties or them privies from relitigating issues that were or could have been raised in the prior action.” Wilkes v. Wyo. Dep’t of Emp’t Div. of Labor Standards, 314 F.3d 501, 503-04 (10th Cir.11112002). The general rule is that “[t]he ap-pealability of a judgment ... does not hinder its preclusive effect.” MACTEC, Inc. v. Gorelick, 427 F.3d 821, 832 (10th Cir.2005) (citing 18A Wright & Miller § 4433, at 78-85 (2d ed.2002)). Accord Leo v. Garmin Intern., Inc., 464 Fed.Appx. 737, 740 (10th Cir.2012) (unpublished)(“[I]t does not matter that [the plaintiffs] first appeal had not been resolved at the time [he] filed his second suit because under the federal law of claim preclusion, the district court’s order was final for res judicata purposes.”). Courts occasionally refer to the two different effects of judgments under the doctrine of res judicata with various and sometimes conflicting terminology. See 18 Wright & Miller § 4402, at 7 (“The effects of former adjudication have been discussed and determined in varying and occasionally conflicting terminology.”). “[T]he broad ‘res judicata’ phrase refers to the distinctive effects of a judgment separately characterized as ‘claim preclusion’ and ‘issue preclusion.’ ” 18 Wright & Miller § 4402, at 7. The United States Court of Appeals for the Fifth Circuit has presented a summary that explains the two doctrines:
The rules of res judicata, as the term is sometimes sweepingly used, actually comprise two doctrines concerning the preclusive effect of a prior adjudication. The first such doctrine is “claim preclusion,” or true res judicata. It treats a judgment, once rendered, as the full measure of relief to be accorded between the same parties on the same “claim” or “cause of action.” When the plaintiff obtains a judgment in his favor, his claim “merges” in the judgment; he may seek no further relief on that claim in a separate action. Conversely, when a judgment is rendered for a defendant, the plaintiffs claim is extinguished; the judgment then acts as a “bar.” Under these rules of claim preclusion, the effect of a judgment extends to the litigation of all issues, relevant to the same claim between the same parties, whether or not raised at trial. The aim of claim preclusion is thus to avoid multiple suits on identical entitlements or obligations between the same parties, accompanied, as they would be, by the redetermination of identical issues of duty and breach.
The second doctrine, collateral estop-pel or “issue preclusion,” recognizes that suits addressed to particular claims may present issues relevant to suits on other claims. In order to effectuate the public policy in favor of minimizing redundant litigation, issue preclusion bars the relit-igation of issues actually adjudicated, and essential to the judgment, in a prior litigation between the same parties. It is insufficient for the invocation of issue preclusion that some question of fact or law in a later suit was relevant to a prior adjudication between the parties; the contested issue must have been litigated and necessary to the judgment earlier rendered.
Kaspar Wire Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d 530, 535-36 (5th Cir.1978) (citations omitted). The following principles apply in federal-question cases — and are generally consistent with state-law res judicata rulés — but “[f]or judgments in diversity cases, federal law incorporates the rules of preclusion applied by the State in which the rendering court sits.” Taylor v. Sturgell, 553 U.S. 880, 891 n. 4, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (citing Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001)).
1. Claim Preclusion alkla Res Judi-cata.
“The doctrine of res judicata, or claim preclusion, ‘bars a second suit involving the same parties or their privies based on the same cause of action.’ ” Roybal v. City of Albuquerque, No. CIV 08-0181 JB/LFG, 2009 WL 1300048, at *5 (D.N.M. Feb. 2, 2009) (Browning, J.) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5,, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). “Under Tenth Circuit law, claim preclusion applies when three elements exist: (1) a final judgment on the merits in an earlier action; (2) identity of the parties in the two suits; and (3) identity of the cause of action in both suits.” MACTEC, Inc. v. Gorelick, 427 F.3d at 831. The Tenth Circuit has adopted the “transactional” approach from § 24 of the Restatement (Second) of Judgments to determine what constitutes a “cause of action” for claim preclusion. Wilkes v. Wyo. Dep’t of Emp’t Div. of Labor Standards, 314 F.3d at 504. Under this approach, a cause of action includes “all claims or legal theories of recovery that arise from the same transaction, event, or occurrence.” Wilkes v. Wyo. Dep’t of Emp’t Div. of Labor Standards, 314 F.3d at 504 (quoting Nwosun v. Gen. Mills Rest., Inc., 124 F.3d 1255, 1257 (10th Cir.1997)). Claim preclusion does not, however, “extend from criminal prosecutions to civil actions.” 18B Wright & Miller § 4474, at 420.
The Supreme Court, in Taylor v. Sturgell, clarified when preclusion may appropriately be applied to those who were not actual parties in the earlier litigation. The Supreme Court stated: “ ‘It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.’ ” 553 U.S. at 884, 128 S.Ct. 2161 (quoting Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 85 L.Ed. 22 (1940)). The Supreme Court eliminated the broad doctrine of virtual representation, which allowed preclusion on the grounds of a sufficiently close relationship and which had prevailed in some federal circuits. See Taylor v. Sturgell, 553 U.S. at 884, 890, 903-904, 128 S.Ct. 2161. Instead, the Supreme Court approved six exceptions to the general rule against non-party preclusion: (i) when the non-party “agrees to be bound by the determination of issues in an action between others,” 553 U.S. at 893, 128 S.Ct. 2161 (quoting Restatement (Second) of Judgments § 40) (internal quotation marks omitted); (ii) based on pre-existing substantive legal relationships that “include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor,” 553 U.S. at 894, 128 S.Ct. 2161 (citation omitted)(internal quotation marks omitted); (iii) when the non-party was “adequately represented by someone with the same interests who” was a party in the prior lawsuit, 553 U.S. at 894, 128 S.Ct. 2161 (citation omitted)(internal quotation marks omitted); (iv) when the non-party assumed control over the earlier litigation, see 553 U.S. at 895, 128 S.Ct. 2161; (v) when the non-party is suing on behalf of the party to the earlier litigation, see. 553 U.S. at 895, 128 S.Ct. 2161; and (vi) where a “a special statutory scheme” forecloses successive litigation, provided the scheme is consistent with due process, 553 U.S. at 895, 128 S.Ct. 2161. The Supreme Court did not eliminate all aspects of virtual representation — the situations other courts labeled virtual representation were too diverse and could be justified on traditional grounds. Instead, the Supreme Court declared that “[t]he preclusive effects of a judgment in a federal-question case decided by a federal court should ... be determined according to the established grounds for nonparty preclusion described in” Taylor v. Sturgell, 553 U.S. at 904, 128 S.Ct. 2161.
2. Issue Preclusion a/k/a Collateral Estoppel.
Where the causes of action are not identical, the second aspect of the doctrine of res judicata, termed “collateral estop-pel” or “issue preclusion,” may still preclude parties from relitigating issues in a second, not identical cause of action, where the particular issues were litigated in a prior case. See In re Corey, 583 F.3d 1249, 1251 (10th Cir.2009) (“The doctrine of issue preclusion prevents a party that has lost the battle over an issue in one lawsuit from relitigating the same issue in another lawsuit.”). The Tenth Circuit has stated: “Under federal law, issue preclusion attaches only when an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment.” In re Corey, 583 F.3d at 1251 (quoting Arizona v. California, 530 U.S. 392, 414, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000); Restatement (Second) t of Judgments § 27 cmt. e)(alterations omitted)(internal quotation marks omitted). See Restatement (Second) of Judgments § 27 (“When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”). The Tenth Circuit’s test for issue preclusion under res judicata consists of four elements:
(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been fully adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.
Adams v. Kinder-Morgan, Inc., 340 F.3d 1083, 1093 (10th Cir.2003) (quoting United States v. Botefuhr, 309 F.3d 1263, 1282 (10th Cir.2002)).
“It is well established that a prior criminal conviction may work an estoppel in favor of the Government in a subsequent civil proceeding.” Emich Motors Corp. v. Gen. Motors Corp., 340 U.S. 558, 568, 71 S.Ct. 408, 95 L.Ed. 534 (1951). See Considine v. United States, 683 F.2d 1285, 1286 (9th Cir.1982) (“A prior conviction will estop a party from contesting in a later civil suit any element necessarily established in the criminal trial.”). The Tenth Circuit has stated that whether a defendant is estopped from relitigating an issue after a criminal trial “is whether the question was ‘distinctly put in issue and directly determined’ in the criminal prosecution.” Metros v. U.S. Dist. Court for the Dist. of Colo., 441 F.2d 313, 316 (10th Cir.1970) (quoting Emich Motors Corp. v. Gen. Motors Corp., 340 U.S. at 569, 71 S.Ct. 408). Thus, “[i]n the case of a criminal conviction based on a jury verdict of guilty, issues which were essential to the verdict must be regarded as having been determined by the judgment.” Metros v. U.S. Dist. Court for the Dist. of Colo., 441 F.2d at 316 (quoting Emich Motors Corp. v. Gen. Motors Corp., 340 U.S. at 569, 71 S.Ct. 408) (internal quotation marks omitted).
With respect to issues determined in a criminal prosecution: (1) A judgment in favor of the prosecuting authority is pre-clusive in favor of the government: (a) In a subsequent civil action between the government and the defendant in the criminal prosecution, as stated in § 27 with the exceptions stated in § 28.
Restatement (Second) of Judgments § 85.
LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff’s constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir.2012) (“The requisite causal connection is satisfied if [the defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] constitutional rights.”)(quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006)). The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). “An entity cannot be held liable solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor.” Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011) (Browning, J.) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 689, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees’ tortious acts. See Barney v. Pulsipher, 143 F.3d 1299,