United States Court of Appeals

For the Eighth Circuit

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No. 13-3123

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Donald Stephens,

lllllllllllllllllllll Plaintiff - Appellant,

v.

Leslie Jessup; Amtote International, Inc.,

lllllllllllllllllllll Defendants - Appellees.

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Appeal from United States District Court 

for the Western District of Arkansas - Hot Springs

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 Submitted: December 10, 2014

 Filed: July 20, 2015

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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

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COLLOTON, Circuit Judge.

Donald Stephens went gambling at the Oaklawn Jockey Club in Hot Springs,

Arkansas, and wound up in a dispute with security personnel and a local police

officer, Leslie Jessup, who accused him of theft. Stephens later sued the officer and

Amtote International, Inc., alleging false imprisonment, conversion, defamation,

violation of his civil rights, and intentional infliction of emotional distress. The

district court dismissed the action against Amtote International for failure to state a
claim. We conclude that Stephens did not perfect an appeal of that order. The district

court separately dismissed the claims against Jessup, ruling that they were barred by

the doctrine of issue preclusion. We express no view on the merits of those claims,

but we conclude that they are not precluded by previous litigation, so we reverse and

remand for further proceedings.

I.

According to the complaint, Stephens visited the Oaklawn Jockey Club for a

night of gambling on February 6, 2010. After winning a sum of money playing slot

machines, Stephens cashed out his ticket and left the casino. He returned later that

evening and purchased another gaming ticket for use in the slot machines. 

While playing on this ticket, he was approached by several uniformed casino

security personnel and Jessup, a uniformed Hot Springs police officer. Jessup and the

security personnel accused Stephens of stealing the cashed-out ticket from another

patron who had been playing the slot machine. They detained Stephens while casino

employees reviewed surveillance footage to determine whether the ticket was stolen. 

The complaint next alleges that Jessup threatened to “arrest [Stephens] and take him

to jail immediately” if he did not return the money that he received from cashing in

the stolen ticket. Jessup recited Miranda warnings, escorted Stephens to his vehicle,

and retrieved the money won at the casino. 

In November 2010, Stephens sued Oaklawn in the Circuit Court of Pulaski

County, Arkansas. That complaint alleged that Oaklawn, through its “agents,

servants, and employees . . . acting within the scope and course of their employment,”

committed false imprisonment, conversion, defamation, violation of civil rights, and

intentional infliction of emotional distress. The court granted summary judgment in

favor of Oaklawn on the civil rights claim, and the remaining claims proceeded to

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trial. A jury ultimately returned a verdict in favor of Oaklawn. Neither Jessup nor

Amtote International was a party to the state court action.

Stephens then filed suit against Jessup and Amtote International in February

2013, alleging the same five causes of action against these new defendants. Jessup

moved to dismiss the complaint, arguing that the claims were barred by the doctrine

of res judicata. Amtote International moved separately to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6), arguing that Stephens failed to state a claim against

it. On July 29, 2013, the district court granted Amtote’s motion to dismiss for failure

to state a claim. In a separate order entered on July 30, the court granted Jessup’s

motion, holding that the doctrine of issue preclusion barred Stephens from proceeding

against Jessup. Stephens filed a notice of appeal and argues now that both orders were

flawed.

II.

Amtote International argues that we lack jurisdiction to review the July 29 order

granting its motion to dismiss, because Stephens’s notice of appeal identified only the

July 30 order dismissing the claims against Jessup. The argument is well taken. To

vest this court with jurisdiction, an appellant must comply with the requirements of

Federal Rule of Appellate Procedure 3 to “designate the judgment, order, or part

thereof being appealed.” Fed. R. App. P. 3(c)(1)(B); see Smith v. Barry, 502 U.S. 244,

248 (1992); Schell v. Bluebird Media, No. 14-1649, 2015 WL 3429443, at *3 (8th Cir.

May 29, 2015). Stephens did not designate for appeal the order dismissing his claim

against Amtote International.

Stephens’s notice states that he is appealing “from the (Order) entered in this

action on the 30th day of July, 2013.” Although we liberally construe notices of

appeal, we cannot waive the jurisdictional requirements of Rule 3, and “a notice which

manifests an appeal from a specific district court order or decision precludes an

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appellant from challenging an order or decision that he or she failed to identify in the

notice.” Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1058 (8th Cir. 2002). 

The district court entered two separate orders on separate motions to dismiss, but the

notice of appeal states only that Stephens appeals the July 30 order dismissing claims

against Jessup. We therefore conclude that we lack jurisdiction to review the district

court’s July 29 order granting Amtote International’s motion. 

III.

Stephens contends that the district court erred by concluding that his claims

against Jessup are precluded by the 2010 judgment in Arkansas state court. Under the

Full Faith and Credit Act, 28 U.S.C. § 1738, federal courts must “give the same

preclusive effect to state court judgments that those judgments would be given in the

courts of the State from which the judgments emerged.” Kremer v. Chem. Constr.

Corp., 456 U.S. 461, 466 (1982). We review the district court’s decision de novo. 

Edwards v. City of Jonesboro, 645 F.3d 1014, 1019 (8th Cir. 2011). 

Arkansas preclusion law “has two facets, one being issue preclusion and the

other claim preclusion.” Huffman v. Alderson, 983 S.W.2d 899, 901 (Ark. 1998). The

district court concluded that issue preclusion barred Stephens’s claims against Jessup. 

In Arkansas, issue preclusion requires the presence of four elements: “(1) the issue

sought to be precluded must be the same as that involved in the prior litigation; (2) the

issue must have been actually litigated; (3) the issue must have been determined by

a final and valid judgment; and (4) the issue must have been essential to the

judgment.” Beaver v. John Q. Hammons Hotels, L.P., 138 S.W.3d 664, 666 (Ark.

2003). Issue preclusion “may be asserted by a stranger to the first judgment, but the

party against whom it is asserted . . . must have had a full and fair opportunity to

litigate the issue in that first proceeding.” Craven v. Fulton Sanitation Serv., Inc., 206

S.W.3d 842, 844 (Ark. 2005).

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The district court dismissed the claims against Jessup because it thought “the

issues regarding Jessup’s conduct have already been decided in the 2010 lawsuit in

Jessup’s favor.” We respectfully disagree, because the record does not show

conclusively that the issues raised in the present action were actually litigated and

determined in the 2010 case. The 2010 lawsuit alleged that Oaklawn was liable for

the conduct of its agents and employees, including Jessup, under a respondeat

superior theory. The claims were resolved in favor of Oaklawn, but we do not know

why. Neither the order granting summary judgment on the civil rights claim, nor the

general jury verdict on the remaining claims, explains the basis for decision.

There are at least two possibilities. One is that the court and jury found

insufficient evidence that Jessup committed a tort or civil rights violation, so that

Oaklawn was not liable under the doctrine of respondeat superior. But another is that

Jessup was acting outside the scope of his agency or employment with Oaklawn, such

that Oaklawn was not liable for any tort committed by Jessup. Under the second

possibility, the issue of Jessup’s personal liability to Stephens for the alleged torts has

not been actually litigated and determined. Because the record does not establish that

the issues raised in this action were actually litigated in 2010, the doctrine of issue

preclusion does not justify dismissal of the claims against Jessup.

Jessup argues that we should affirm on an alternative ground that claim

preclusion bars this action, but we conclude that this doctrine also fails to support

dismissal. Claim preclusion in Arkansas bars a claim in a second suit when five

elements are satisfied:

(1) the first suit resulted in a final judgment on the merits; (2) the first

suit was based upon proper jurisdiction; (3) the first suit was fully

contested in good faith; (4) both suits involve the same claim or cause of

action; and (5) both suits involve the same parties or their privies.

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Ark. Office of Child Support Enf’t v. Williams, 995 S.W.2d 338, 339 (Ark. 1999). The

fifth element is lacking here. Oaklawn and Jessup are not the same party, and they are

not “privies” under the circumstances of this case. 

Claim preclusion is inapplicable for largely the same reasons that issue

preclusion does not bar the action. Under Arkansas law, “[p]rivity exists when two

parties are so identified with one another that they represent the same legal right.” 

Crockett v. C.A.G. Invs., Inc., 381 S.W.3d 793, 799 (Ark. 2011). In the principal-agent

context, the Arkansas Supreme Court “has all but done away with the privity

requirement, choosing instead to focus on whether or not the plaintiff is attempting

to relitigate an issue that has already been decided.” Jayel Corp. v. Cochran, 234

S.W.3d 278, 282 (Ark. 2006).

Whether claim preclusion applies turns on what was established in the first

action about the relationship between Jessup and Oaklawn. If it had been conceded

in the 2010 action that Jessup acted within the scope of his employment or agency

with Oaklawn, then the only issue in the case would have been Jessup’s negligence,

and Stephens could not relitigate the same thing in a second action. Davis v.

Perryman, 286 S.W.2d 844, 847-48 (Ark. 1956). But if there was no such concession,

then claim preclusion does not apply, because it cannot “be known with certainty that

the earlier decision against the plaintiff was based on the issue of negligence.” Frisby

v. Hurley, 364 S.W.2d 801, 802 (Ark. 1963). The first decision might have turned on

whether Jessup acted outside the scope of his agency or employment.

On this record, we cannot say that Stephens is trying to relitigate an issue that

was previously decided or that Jessup and Oaklawn represent the same legal right. 

Stephens alleged in the 2010 case that Jessup acted “within the scope and course of

[his] employment,” but Oaklawn denied this allegation in its answer, and the record

does not show that Oaklawn conceded this point. The decisions of the court and jury

do not establish that the allegation was proved. In the 2013 complaint, Stephens did

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not even allege that Jessup acted within the scope of his agency or employment with

Oaklawn. Accordingly, without a concession in both cases that Jessup was acting

within the scope of his agency or employment during the events in question, there is

not a substantial identity of parties, and the doctrine of claim preclusion does not bar

Stephens’s action against Jessup. See Frisby, 364 S.W.2d at 802.

For the foregoing reasons, district court’s order dismissing Stephens’s claims

against Jessup is reversed, and the case is remanded for further proceedings. 

Stephens’s appeal of the order dismissing claims against Amtote International is

dismissed for lack of jurisdiction.

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