### The Honorable Rodney S. Webb, United States District Judge for 1 

### the District of North Dakota. ___________ No. 95-3697

___________ Sheri Lommen, * * Appellant, * * Appeal from the United States v. * District Court for the * District of North Dakota. City of East Grand Forks; * Vernon Rasmussen, * * Appellees. *

___________ Submitted: June 14, 1996 Filed: October 3, 1996

___________ Before BOWMAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge. Sheri Lommen appeals from the decision of the United States District Court for the District of North Dakota granting summary judgment 1 to Vernon Rasmussen and the City of East Grand Forks, Minnesota. Th e district court applied res judicata and full faith and credit to a judgmen t of a Minnesota state court that dismissed Lommen's claim on the basis of official immunity. Lommen argues that the district court's judgment is no t barred because: (1) t he Minnesota state court judgment was not final; (2) the state court judgment was not on the merits; (3) the state cour t judgment need not be so recognized because it frustrates the law and publi c policies of North Dakota; and (4) she is not foreclosed from

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litigating under North Dakota law the issues that were not litigated in th e Min nesota case. In addition, Lommen asserts further arguments based o n choice of law issues. Finally, Lommen argues that the court denied equal prot ection to her by treating other plaintiffs in the same collisio n differently. We affirm.

Lommen was a passenger in the rear seat of a 1983 Camaro that wa s stopped a t an intersection in Grand Forks, North Dakota. As the Camar o started forward when the stoplight changed, a pickup truck sped through th e intersection. A patrol car, driven by Officer R asmussen of the East Grand For ks, Minnesota Police Department, was pursuing the pickup truck. Th e patrol car struck the rear quarter of the Camaro, and Lommen suffere d injuries when she was thrown through the rear window of the Camaro.

Lomme n brought an action in a Minnesota state trial court agains t Rasmussen and the City of East Grand Forks alleging Rasmussen's negligence

. On motion for summary judgment, the state trial court held that official immuni ty applied, thus shielding Rasmussen and the City from liability

. It further observed the existence of discretiona ry function immunity under th e law of North Dakota, but found it unnecessary to resolve th e application of this law because Minnesota law should be applied. Lommen appealed, and the Court of Appeals of Minnesota affirmed in a 2-1 decision , applying essentially the same analysis employed by the trial court. Lomme n then filed a petition for review to the Supreme Court of Minnesota. The court granted the petition, but some months ther eafter determined that the order was improvidently granted and dismissed the appeal.
Five days after the Minnesota Court of Appeals decision, Lommen filed a complaint in the Un ited States District Court for the District of North Dakota asserting essentially the same claims against Rasmussen and the Cit y of East G rand Forks. After the decision of the Minnesota Supreme Cour t that dismissed Lommen's

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appeal, the district court granted summary judgment on the basis that the doctrines of res judicata and full faith and credit required that th e judgment of the Minnesota state courts be given preclusive effect.

We re view the district court's grant of summary judgment de novo

. Con ner v. Reckitt & Colman, Inc. , 84 F.3d 1100, 1102 (8th Cir. 1996)

. Summary judgment is appropriate if there are no disputed issues of materia l fact thereby entitlin g both the City of East Grand Forks and Rasmussen to judgment as a matter of law. Fed. R. Civ. P. 56(c).

The Full Faith and Credit Statute, 2 8 U.S.C. § 1738 (1994), requires that federal courts g ive state court judgments the same preclusive effect that such a judgment would be given in the courts of the state rendering the judgment. Allen v. McCurry , 449 U.S. 90, 96 (1980); Kremer v. Chemica l Constr. Corp. , 456 U. S. 461, 466 (1982); Tolefree v. City of Kansas City , 980 F.2d 1171, 1173-74 (8th Cir. 1992), cert. de nied , 510 U.S. 905 (1993). Section 1 738 does not permit federal courts to apply their own rules t o determine the effect of state court judgments, but instead mandates that a federal court implement the preclusion rules o f the state from which the judgment originated. Kremer , 456 U.S. at 482; Migra v. Warren City Sch. Dist. Bd. of Educ ., 465 U.S. 75, 81 (1984). We therefore look to Minnesot a law to determine the preclusive effect of the judgment of the Minnesot a state courts.

Unde r Minnesota law, "[t]he doctrine of res judicata exists i n order t o relieve parties of the burden of relitigating issues alread y determined in a prior action, that a party may n ot be `twice vexed for the
same cause.'" Beutz v. A.O. Smith Harvestore Prods., Inc. , 431 N.W.2d 528 , 531 (Minn. 1988) (quo ting Shimp v. Sederstrom , 233 N.W.2d 292, 294 (Minn. 1975 )). Application of the doctrine of res judicata "constitutes a n absolute bar to a second suit for the same cause of action, and i s conclusive between

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parties an d privities, not only as to every matter which was actuall y litigated, but also as to every matter which might have been litigated , therein." Demers v. City of Minneapolis , 486 N.W.2d 828, 830 (Minn. Ct. App. 1992 ) (quoting Beutz , 431 N.W.2d at 531). The doctrine of re s judicata applies when three requirements have been met: (1) there is a final judgment on the merits; (2) the second suit consists of the sam e
cause of action; and (3) the parties involved in both suits are the same parties or parties in privity. Id. at 830.

Lo mmen's first suit, filed in a Minnesota state trial court, wa s brought against Rasmussen and the City of East Grand Forks allegin g Rasmussen's negligence. Lommen's second suit, f iled in a federal district court in North Dakota, asserted essentially the same claims agains t Rasmussen and the City of East Grand Forks as Lommen had asserted in the Minnesota state court. Thus, elements two and t hree of the above test are easily satisfied.

Lommen ar gues, however, that there was no final judgment on th e merits, because the state court judgment dismissed the action on a governmental immunity defense. Lommen bases her argument on Wade v. City of Pittsburgh , 765 F.2d 405 (3d. Cir. 1985). In Wade , a plaintiff first sued the City of Pittsburgh for negligence in state court. The plaintiff' s cla ims were based solely on negligence and did not refer to the Civi l Rights Acts. Id. at 407. The state court applied Pennsylvania law that provided for immunity for municipalities and granted summary judgment to Pittsburgh. Id. Plaintiff then filed a suit in federal court against the police officers, as well as the city, for alleged violations of the federa l Civil Rights Acts. I d. In Wade , the Third Circuit was required to apply the Pennsylvania law of res judicata. Id. After a careful analysis of th e law o f Pennsylvania, the court concluded that if a judgment is entere d prior to the development of the merits and is based on a collateral defens e applicable only to the first suit, res judicata would not apply. Id. at 410. The Third

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Circuit held, therefo re, that the plaintiff's claims based on federal law
were not barred by the doctrine of res judicata because the judgment of th e state court was not b ased on a factual development of the occurrence, but on a statutory immunity--a defense having no app lication to the wrongdoing of the city or the injury sustained by the plaintiff. Id. at 410.
Lommen argues that as in Wade , the s tate court dismissal of her case
was not based on a factual development of the automobile accident at issue , but on statutory immunity grounds. According to Lommen, because th e defense at issue in the first suit was collatera l, the judgment was not on the merits. We reject this argument. In this case the Pennsylvania law of res judicata is not controlling, but rather the Minnesota law of res judicata. Under the Minnesota Rules of Civil Procedure, a judgment based upon an order for dismissal constitutes a final adjudication on the merits

. Specifically, Rule 41.02(c) states:
Unless the court specifi es otherwise in its order, a dismissal pursuan t to this rule and any dismissal not provided for i n this rule or in Rule 41. 01, other than a dismissal for lack of jurisdiction, for forum non conveniens, or for failure to join a p arty indispensable pursuant to Rule 19, operates as a n adjudication upon the merits.
Min n. R. Civ. P. 41.02(c). In this case, the Minnesota state court' s judgm ent explicitly stated that Lommen's action was "dismissed wit h prejudice and on its merits." In addition, a Minnesota appellate cour t previously has recogn ized that a final adjudication on the merits existed where sum mary judgment had been granted in a prior suit against th e plaintiffs because the defendants were entitled to quasi-judicial immunity

. Myers v. Price , 463 N.W.2d 773, 776-77 (Minn. Ct . App. 1990). Whether the judgm ent was based on rejection of Lommen's claim, or acceptance of a n affirmative defense, is irrelevant.

### -6- Lommen's additional arguments are without merit and do not warran t further discussion.
We affirm the district court's grant of summary judgment in favor of Rasmussen and the City of East Grand Forks.



### A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.