NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-1211

CITIZEN ELECTRONICS COMPANY, LTD., Plaintiff-Appellant,

v.

OSRAM GMBH and OSRAM OPTO SEMICONDUCTORS GMBH, Defendants-Appellees.

Steven P. Weihrouch , Oblon, Spivak, McClelland, Maier & Neustadt, P.C., of Alexandria, Virginia, argued for pl aintiff-appellant. With him on the brief were Richard D. Kelly and Alexander E. Gasser . Of counsel was Kenneth D. Wilcox

. Charles H. Sanders , Fish & Richardson P.C., of Boston, Massachusetts, argued for defendants-appellees. With him on t he brief were Alan D. Smith and Christopher D. Agnew . Also on the brief was Christian A. Chu , of Washington, DC. Appealed from: United States District Court for the District of Columbia Judge Ellen S. HuvelleNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-1211

CITIZEN ELECTRONICS COMPANY, LTD., Plaintiff-Appellant,

v. OSRAM GMBH and OSRAM OPTO SEMICONDUCTORS GMBH, Defendants-Appellees.

__________________________ DECIDED: March 29, 2007

__________________________

Before MICHEL, Chief Judge , LOURIE and BRYSON, Circuit Judges

. MICHEL, Chief Judge

. Citizen Electronics Company, Ltd. (“CE”) appeals from a final orde r of the United States District Court for the District of Co lumbia dismissing its declaratory judgment (“DJ”) complaint against OSRAM GmBH and OSRAM OPTO Semiconductors GmBH (collectively, “OSRAM”) for lack of subject matter jurisdiction. Citizen Elecs. Co. v. OSRAM GmBH , No. 05-1560 (D.D.C. Dec. 20, 2005) (“ Citizen II ”). The district court held that CE’s DJ complaint was barred under the doctrine of res judicata because CE had already litigated the issue of subject matter jurisdiction in Citizen Electronics Co. v.OSRAM GmBH , 377 F. Supp. 2d 149 (D.D.C. 2005) (“ Citizen I ”). Because the district court correctly determined that it lacked s ubject matter jurisdiction over CE’s DJ complaint, we affirm

. INTRODUCTION CE and OSRAM are competitors in the fiel d of white light em itting diode (“white LED”) technology. OSRAM is t he owner or assignee of U. S. Patent Nos. 6,066,861, 6,245,259, 6,277,301, 6,576,930, 6,592,780, 6,613, 247, and 6,812,500, all directed to white LED technology. On January 18, 2005, CE filed an action against OSRAM for a declaratory judgment that its white LEDs did not infringe upon OSRAM’s patents, or that the patents were invalid. On April 27, 2005, OSRAM filed a motion to dismiss the DJ action under Fed. R. Civ. P. 12(b)(1) for lack of subject matter juri sdiction. In its motion, OSRAM stated that “[i]n response to Citizen’s provoking a fight by filing this surprise declaratory judgment action, OSRAM has taken action to protect it s patent rights in Europe.” Specifically, on March 14, 2005, OSRAM filed a patent infr ingement case against CE in Germany on related foreign patents directed to white LED te chnology. On July 14, 2005, the district court ruled in favor of OSRAM, dismissing CE’s DJ action. Citizen I , 377 F. Supp. 2d at 157. The district court held that CE fa iled to prove that there was an “actual controversy” under the Declar atory Judgment Act, 28 U.S.C. § 2201(a), on January 18, 2005, the time the suit was filed. While no ting that OSRAM had filed suit in Germany against CE, the district cour t nonetheless found it to be irrelevant since this event occurred after the filing of CE’s complaint. Citizen I , 377 F. Supp. 2d at 155 n.7. CE did not appeal the district court’s decision.

2006-1211 2On August 2, 2005, CE filed a second DJ action against OSRAM. 1 To support its allegation of an “actual contro versy,” CE reiterated the ev ents allegedly leading to an “actual controversy” in its first compla int and listed the following “new” facts for consideration by the district court: (1) that on May 2, 2005, OS RAM issued a report on its website describing the action against CE in Germany; and (2) also on May 2, 2005, OSRAM issued a press release mentioning ac tion taken by OSRAM in the International Trade Commission pursuant to Sect ion 337 of the Tariff Act of 1940 seeking to exclude from entry into the U.S. certain white LEDs manufactured, imported, or sold by another company, Dominant Semiconductors, and stating, “Our objective in ta king legal action against Citizen and issuing warni ngs to Dominant is to prev ent unauthorized use of our technology.” In response to the second DJ complaint, OSRAM again filed a motion to dismiss for lack of subject matter jurisd iction, arguing that the new fa cts in the second complaint were barred from consideration by the district court under the principles of res judicata. CE filed an amended complaint on November 11, 2005, adding the fa ct that OSRAM’s German complaint was formally served on CE under the Hague Convention on September 28, 2005. On December 20, 2005, the district court ruled in favor of OSRAM and dismissed CE’s second DJ action. In its opinion, the di strict court first ack nowledged that the case presented a “novel issue of whether jurisdicti onal facts that occurred after plaintiff filed its first suit but prior to the Court’s dismissa l of that suit may be relied on in a second suit to cure the jurisdictional defect.” Citizen II , slip op. at 3. Relying on the decisions

1 CE’s second DJ action did not include U.S. Patent No. 6,812,500.

2006-1211 3made by the Court of Appeals for the District of Columbia Circuit in Dozier v. Ford Motor Co. , 702 F.2d 1189, 1191 (D.C. Cir. 1983) and GAF Corp. v. United States , 818 F.2d 901, 912-13 (D.C. Cir. 1987), the district court held that CE was estopped under the doctrine of res judicata from relying on events prior to July 14, 2005—the dismissal date of CE’s first DJ action—as evidence of an “a ctual controversy.” Since the district court refused to consider any facts known prior to its dismissal of the first DJ action, the only event that it considered with regard to the second DJ action was service of process, which the court found to be insufficient to cure the jurisdic tional defect. Citizen II , slip op. at 8. This appeal followed. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION We review a district court’s app lication of res judicata de novo, Shell Petroleum, Inc. v. United States , 319 F.3d 1334, 1338 (Fed. Cir. 2003), but apply the law of the pertinent regional circuit. Epic Metals Corp. v. H.H. Robertson Co. , 870 F.2d 1574, 1576 (Fed. Cir. 1989). It is well settled that the principles of res judicata 2 apply to questions of jurisdiction as well as to other issues. American Sur. Co. v. Baldwin , 287 U.S. 156, 166 (1932); see also Underwriters Nat’l Assurance Co. v. N. C. Life & Accident & Health Ins. Guar. Ass’n , 455 U.S. 691, 706 (1982). In the District of Columbia Circuit, a prior dismissal for lack of subject matter jurisd iction precludes relitigation of the same

2 The parties agree that res judicata is an umbrella term covering two types of preclusive effects of judgments: claim pr eclusion and issue preclu sion. The type of res judicata invoked by the district court here is issue preclusion.

2006-1211 4jurisdictional issue in a later suit, unles s the doctrine of “curable pleading defects” applies. Dozier , 702 F.2d at 1191. “The ‘curable def ect’ exception applies where a ‘precondition requisite’ to the court’s proceeding with the origin al suit was not alleged or proven, and is supplied in the second suit—f or example, the Government’s filing of an affidavit of good cause in a den aturalization proceed ing, proper servic e of process, or residency adequate to invoke diversity jurisdiction.” Id. at 1192 (internal citations omitted). Here, CE alleges that the event s subsequent to its January 18, 2005 filing date, i.e., OSRAM’s filing of a patent infrin gement suit against CE in Germany on March 14, 2005, OSRAM’s website report and press re lease of May 2, 2005, and service of process on September 28, 2005, cure any juri sdictional defect that CE may have had in its first DJ action. In cont rast, OSRAM argues that CE is estopped from relying in the second DJ complaint on events that occurred bef ore dismissal of CE’s first DJ action on July 14, 2005 as supporting an allegatio n of an “actual controversy.” Although CE contends on appeal that Fede ral Circuit law appl ies, its argument on this point is precluded by its agreement below t hat D.C. Circuit law applies. Under D.C. Circuit law, the “curable defect” doctrine is limited to events that occur after the original dismissal for lack of jurisdiction, here July 14, 2005. Id. at 1192 n.4. As the district court correctly observed, Dozier explicitly holds that “a plaintiff cannot relitigate a jurisdictional dismissal by relying upon those fa cts that existed at th e time of the first dismissal.” Citizen II , slip op. at 6 (citing Dozier , 702 F.2d at 1192 n.4). Here, the German suit of March 14, 2005 and OSRAM’s st atements of May 2, 2005 existed at the time of dismissal of CE’s first DJ action. Therefore, CE is es topped from relying on these events as supporting an “actual contro versy” in its August 2, 2005, second DJ

2006-1211 5complaint. CE points to GAF Corp. , 818 F.2d at 912-13, as evidence that later D.C. Circuit decisions undermine the holding of Dozier . However, the D.C. Circu it explicitly stated in GAF Corp. , “A claim of jurisdiction is not precluded if, however, in the interim subsequent to the initial dismissal there are developments tending to ‘cure’ the jurisdictional deficiency ident ified in the first suit.” GAF Corp. , 818 F.2d at 912-13 (emphasis added). Thus, CE’s argument must fail. Finally, CE argues that D.C. Circuit law conflicts with Federal Circuit standards for DJ actions purportedly espoused in Arrowhead Industrial Water, Inc. v. Ecolochem, Inc. , 846 F.2d 731, 734 (F ed. Cir. 1988) and GAF Building Materials Corp. v. Elk Corp. of Dallas , 90 F.3d 479, 483 (Fed. Cir. 1996). Specific ally, CE asserts that our decisions in these cases would have prec luded CE from filing an amend ed complaint prior to the district court’s first dismissal on July 14, 2005. We decline to read these cases as creating a conflict with D.C. Circuit law or even rele vant here, as neither GAF Building Materials nor Arrowhead are directed to issue preclusion or res judicata in general. Assuming they were relevan t, to the extent that a conf lict may exist our precedent clearly requires us to follow D.C. Circu it law, not Federal Circuit law. Since CE was estopped from relying on th e events of March 14, 2005 and May 2, 2005, the district court did not err in holding that service of process did not cure its lack of subject matter jurisdiction over CE’s DJ action.

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