NOT FOR PUBLICATION 

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OKSANA BAIUL, an individual, 

Plaintiff-Appellant, 

 v. 

NBC SPORTS, a division of 

NBCUNIVERSAL MEDIA, LLC, a 

Delaware limited liability company; et al., 

Defendants-Appellees, 

and 

MENDELSON ENTERTAINMENT 

GROUP, a California limited liability 

company and DOES, 1 - 9, 

Defendants.

No. 16-56658

D.C. No. 2:15-cv-05163

AMENDED

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Hon. Dean D. Pregerson, District Judge, Presiding

Argued and submitted April 12, 2018

Pasadena, CA

Filed April 27, 2018: Amended June 12, 2018

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUN 13 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-56658

Before: BEA and MURGUIA, Circuit Judges, and BASTIAN,

** District Judge.

Plaintiff-Appellant Oksana Baiul (“Baiul”) appeals the judgment of the 

Central District of California, which granted Defendants’ motion to dismiss her 

claims as barred by res judicata. We have jurisdiction under 28 U.S.C. § 1291, 

and we affirm. 

1. The district court did not err in denying Baiul’s motion to remand. Baiul 

argues that remand was required because one defendant—On Ice, Inc. (“OII”)—

did not consent to the removal by Defendant NBCUniversal Media, LLC (“NBC”). 

The defendant unanimity rule in 28 U.S.C. § 1446(b)(2)(A) requires that “all 

defendants who have been properly joined and served must join in or consent to 

the removal of the action.” Here, Baiul did not serve OII until after NBC had 

already removed the case on the basis of diversity jurisdiction. Thus, at the time of 

removal, all defendants who had been “properly joined and served”—i.e., NBC 

only—“join[ed] in or consent[ed] to the removal of the action,” which is all that §

1446(b)(2)(A) requires. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1

(9th Cir. 1988) (noting that the unanimity “rule applies, however, only to 

defendants properly joined and served in the action”) (citing Salveson v. W. States 

 

** The Honorable Stanley Allen Bastian, United States District Judge for 

the Eastern District of Washington, sitting by designation.
3 16-56658

Bankcard Ass’n, 731 F.2d 1423, 1429 (9th Cir. 1984) (“Our circuit rule is that a 

party not served need not be joined; the defendants summonsed can remove by 

themselves.”)); see also Lewis v. Rego Co., 757 F.2d 66, 69 (3d Cir. 1985) 

(“[O]nce a case has been properly removed the subsequent service of additional 

defendants who do not specifically consent to removal does not require or permit 

remand on a plaintiff’s motion.”). Because there was no defect in the removal 

under § 1446, there was no basis for the district court to remand under 28 U.S.C. §

1447.

2. The district court did not err in dismissing Baiul’s action based on res 

judicata. First, Baiul argues that the district court lacked authority to construe 

NBC’s motion for judgment on the pleadings (“MJP”) under Rule 12(c) of the 

Federal Rules of Civil Procedure as a motion to dismiss under Rule 12(b)(6). But 

this court has noted that the two motions are “functionally identical.” Gregg v. 

Hawaii, Dep’t of Pub. Safety, 870 F.3d 883, 887 (9th Cir. 2017) (“Because a Rule 

12(c) motion is functionally identical to a Rule 12(b)(6) motion, the same standard 

of review applies to motions brought under either rule.” (internal quotation marks 

and citation omitted)); see also Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 

1980) (construing a motion to dismiss as a motion for judgment on the pleadings). 

Furthermore, construing the MJP as a motion to dismiss did not result in a 

violation of Rule 12(g)(2). Fed. R. Civ. P. 12(g)(2) (prohibiting second-in-time 
4 16-56658

motions to dismiss that raise “a defense or objection that was available to the party 

but omitted from its earlier motion.”). The New York action was dismissed with 

prejudice after NBC had filed its first motion to dismiss the instant action, and

therefore the res judicata defense was not “available” to NBC at that time.

Second, Baiul argues that the district court erred in applying the federal 

preclusion analysis to determine the preclusive effect of the New York judgment. 

This court has held that “California’s law of res judicata dictates what preclusive 

effect is to be accorded to the prior judgment against appellant,” but “California 

law . . . determines the res judicata effect of a prior federal court judgment by 

applying federal standards.” Costantini v. Trans World Airlines, 681 F.2d 1199, 

1201 (9th Cir. 1982). Since Costantini was decided, California courts have stated 

that this is true at least where, as here, the rendering federal court sat in federalquestion jurisdiction. See, e.g., Louie v. BFS Retail & Commercial Operations, 

LLC, 101 Cal. Rptr. 3d 441, 448 (Cal. Ct. App. 2009) (“[W]here a prior federal 

judgment was based on federal question jurisdiction, the preclusive effect of the 

prior judgment of a federal court is determined by federal law.” (emphasis in 

original)); Butcher v. Truck Ins. Exch., 92 Cal. Rptr. 2d 521, 528 (Cal. Ct. App. 

2000) (“California follows the rule that the preclusive effect of a prior judgment of 

a federal court is determined by federal law, at least where the prior judgment was 

on the basis of federal question jurisdiction.”). Costantini is this court’s only 
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citable precedent on point. Therefore, the district court did not err in applying the 

federal preclusion analysis.

Finally, the district court correctly held that the instant action was barred by 

the judgment in the New York action. “In order for res judicata to apply there 

must be: 1) an identity of claims, 2) a final judgment on the merits, and 3) identity 

or privity between parties.” W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 

(9th Cir. 1997). Baiul has not disputed, in her Opening Brief or in her opposition 

filed with the district court, that there was an identity of claims or identity between 

the parties. Accordingly, Baiul waived both issues. Greenwood v. FAA, 28 F.3d 

971, 977 (9th Cir. 1994); Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir. 

2000).

Baiul argues that the Southern District of New York’s dismissal of the New 

York action with prejudice was not a final judgment on the merits because (1) an 

appeal was pending and (2) the dismissal was based on a foreign limitations 

period, rather than the merits.1 Neither argument is persuasive. First, “[i]n federal 

 

1

In her opening brief, Baiul also argues that the New York judgment was not “final” 

as to the non-NBC Defendants because the dismissal of the New York action was 

“with prejudice” only as to NBC. However, Baiul failed to develop this argument in 

her opposition to NBC’s MJP which the other Defendants joined. Because the 

district court did not have an opportunity to address this argument, it is waived. 

Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir. 2000); see also United States 

v. Kimble, 107 F.3d 712, 715 n.2 (9th Cir. 1997) (holding argument “not coherently 

developed” in the party’s brief “to have been abandoned”).
6 16-56658

courts, a district court judgment is ‘final’ for purposes of res judicata,” and “[t]his 

is so even during the pendency of an appeal.” Sosa v. DIRECTV, Inc., 437 F.3d 

923, 928 (9th Cir. 2006). Second, the Southern District of New York held that 

each of Baiul’s claims were (1) preempted by the Copyright Act, and (2) 

insufficient to “state a plausible claim,” as well as (3) time-barred. Thus, the 

Southern District of New York judgment was “on the merits” twice over. The 

district court correctly held that Baiul’s instant claims are precluded.

AFFIRMED.