NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

WILLIAM J. MYERS, JR., Plaintiff/Appellant,

v.

FREESCALE SEMICONDUCTOR INC, Defendant/Appellee.

No. 1 CA-CV 17-0745

Appeal from the Superior Court in Maricopa County

No. CV2016-092450

The Honorable David King Udall, Judge

AFFIRMED

COUNSEL

Williams J. Myers, Jr., Chandler

Plaintiff/Appellant

Ogletree Deakins Nash Smoak & Stewart PC, Phoenix

By Leah S. Freed 

Counsel for Defendant/Appellee

FILED 11-29-2018
MYERS, JR. v. FREESCALE

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

C A T T A N I, Judge:

¶1 William J. Myers, Jr., appeals from the final judgment 

dismissing his complaint with prejudice. Forreasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Myers is a former employee of Freescale Semiconductor, Inc. 

Freescale terminated Myers’s employment in 2011 after conducting a sexual 

harassment investigation.

¶3 In 2012, Myers sued Freescale for wrongful termination based 

on age and sex discrimination, defamation, and conversion (the “First 

Lawsuit”). After Freescale removed the case to federal district court, 

Freescale moved for summary judgment and submitted a declaration by 

Victoria Brush, its human resources manager, summarizing her 

investigation of Myers for sexual harassment (the “Brush Declaration”). In 

response, Myers alleged that Brush’s signature on the Brush Declaration 

had “obviously been forged.” The district court granted Freescale’s motion 

for summary judgment and terminated the case, finding that Myers’s “age 

and gender discrimination claims fail for lack of evidence.” The court 

found that Myers had not offered any evidence that Freescale’s reasons for 

firing him were pretextual and held that the “uncontroverted evidence”

established that Freescale articulated legitimate non-discriminatory reasons 

for terminating Myers and that Freescale’s reasons were sincere.

¶4 Several months later, Myers filed four post-judgment motions 

in district court alleging various causes of action for libel, fraud, contempt,

slander, and perjury against Freescale employees and Freescale’s attorney 

of record. The district court denied Myers’s motions and ordered them 

stricken, declaring the motions “groundless, harassing and frivolous.” The 

district court also ordered the clerk not to accept any further pleadings from 

Myers without prior judicial authorization.

¶5 Almost two years later, Myers filed a motion alleging “Fraud 

on the Court.” Myers attached the affidavit of Judith A. Housley (the 
MYERS, JR. v. FREESCALE

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3

“Housley Affidavit”), in which Housley opined that the signatures on the 

Brush Declaration and another statement signed by Brush came from two 

different authors. The district court denied Myers’s motion, finding it was 

barred by the requirement that Federal Rule of Civil Procedure (“Federal 

Rule”) 60(b) motions be filed within a reasonable time, and by the 

requirement that Federal Rule 60(b)(3) motions based on fraud be filed

within one year after entry of judgment. The United States Court of 

Appeals for the Ninth Circuit dismissed as untimely Myers’s appeal (to 

which he again attached the Housley affidavit to show fraud on the court 

and forgery).

¶6 In 2013, Myers filed a new complaint for unpaid wages and 

conversion (the “Second Lawsuit”), which the district court dismissed on 

claim preclusion grounds. The district court awarded Freescale its 

attorney’s fees, finding that Myers’s action was “groundless and frivolous.”

¶7 In 2015, Myers filed a complaint against Freescale in superior 

court alleging defamation and “Termination of Employment” (the “Third 

Lawsuit”). The court dismissed the lawsuit with prejudice on claim 

preclusion and statute of limitations grounds, and awarded Freescale its 

costs and attorney’s fees.

¶8 Later in 2015, Myers filed another complaint against Freescale 

for “Forgery/Fraud” stemming from the Brush Declaration in the First 

Lawsuit, as well as defamation, termination of employment, and 

conversion (the “Fourth Lawsuit”). The superior court dismissed the case 

with prejudice on claim preclusion grounds and awarded Freescale its 

attorney’s fees based on a finding that Myers had filed the Fourth Lawsuit 

“without substantial justification.” See Ariz. Rev. Stat. (“A.R.S.”) § 12-

349(A)(1).

¶9 In 2016, Myers filed the instant lawsuit (the “Fifth Lawsuit”), 

alleging fraud on the court and breach of good faith and fair dealing. The 

fraud on the court claim was premised on Freescale allegedly presenting 

false statements in the First Lawsuit and again asserted that the Brush 

Declaration was a forgery. Myers also referenced Freescale’s investigation 

into the sexual harassment claims against him that led to his termination, 

alleging that the investigation was limited and that no women had ever 

accused him of sexual harassment. The breach of good faith and fair 

dealing claim was based on Freescale’s alleged wrongful termination of 

Myers, asserting that he was improperly replaced by a younger, lowersalaried employee. In his prayer for relief, Myers requested that Freescale 

implement policies to end its unlawful employment practices.
MYERS, JR. v. FREESCALE

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¶10 Freescale moved for summary judgment, contending that

claim preclusion barred Myers’s fraud claim and that the forgery allegation 

was baseless. With respect to the breach of good faith and fair dealing 

claim, Freescale argued claim preclusion, as well as preemption under

Arizona’s Employment Protection Act. Freescale also asserted that the 

claim was time barred. Freescale submitted another declaration from Brush 

confirming that the signature on the Brush Declaration was her true and 

correct signature. In addition, Freescale filed a counterclaim for abuse of 

process.

¶11 The superior court granted Freescale’s motion for summary 

judgment, finding that claim preclusion barred all of Myers’s claims and 

that the good faith and fair dealing claim was preempted by the Arizona 

Employment Protection Act.

¶12 Myers filed two motions for relief of judgment, as well as a 

motion to vacate the judgment on his fraud on the court claim. The superior 

court denied all three motions. The court granted Freescale’s request for 

attorney’s fees and costs, awarding a total of $40,023.75.

¶13 Myers timely appealed.

DISCUSSION

I. Jurisdiction.

¶14 This court has jurisdiction to consider an appeal from a “final 

judgment,” one that disposes of all claims and parties. A.R.S. § 12-

2101(A)(1); Kim v. Mansoori, 214 Ariz. 457, 459, ¶ 6 (App. 2007). To be 

considered final, a judgment disposing of all claims and parties must 

include a certification of finality under Arizona Rule of Civil Procedure 

54(c). See Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, 427–28, ¶ 

12 (App. 2016). But a judgment that does not dispose of all claims and 

parties does not become final and appealable simply because it includes 

Rule 54(c) language. Madrid v. Avalon Care Ctr.-Chandler, L.L.C., 236 Ariz. 

221, 224, ¶ 11 (App. 2014). We review de novo the superior court’s 

determination of finality. Id. at 223, ¶ 3.

¶15 Myers argues that the superior court’s judgment is defective 

because, notwithstanding Rule 54(c) finality language, the ruling did not 

expressly address Freescale’s abuse of process counterclaim. But the record 

and the parties’ appellate briefing establish that the superior court 

implicitly dismissed Freescale’s counterclaim, a dismissal that Freescale has 
MYERS, JR. v. FREESCALE

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not challenged. Accordingly, the judgment is final and we have jurisdiction

under A.R.S. § 12-2101(A)(1).

II. Claim Preclusion.

¶16 Myers argues that the court erred by dismissing his fraud on 

the court claim on the basis of claim preclusion; he does not challenge the 

dismissal of his good faith and fair dealing claim. We review a prior 

judgment’s claim preclusive effect de novo. Howell v. Hodap, 221 Ariz. 543, 

546, ¶ 17 (App. 2009). Because a federal court issued the judgment in the

First Lawsuit, federal law defines its preclusive effect. In re Gen. 

Adjudication of All Rights to Use Water in the Gila River Sys. & Source, 212 Ariz. 

64, 69, ¶ 13 (2006).

¶17 Claim preclusion bars a claim when a prior suit “(1) involved 

the same ‘claim’ or cause of action as the later suit, (2) reached a final 

judgment on the merits, and (3) involved identical parties or privies.”

Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005) (citation

omitted). Myers does not dispute that the First Lawsuit reached a final 

judgment on the merits and involved identical parties, but rather argues 

that the First Lawsuit involved a completely different claim.

¶18 To determine whether an identity of claims exists, we 

consider four criteria:

(1) whether the two suits arise out of the same transactional 

nucleus of facts; (2) whether rights or interests established in 

the prior judgment would be destroyed or impaired by 

prosecution of the second action; (3) whether the two suits 

involve infringement of the same right; and (4) whether 

substantially the same evidence is presented in the two 

actions.

Id.; see also Costantini v. Trans World Airlines, 681 F.2d 1199, 1201–02 (9th Cir.

1982). The most important criterion is whether the two suits arise out of the 

same transactional nucleus of facts. Costantini, 681 F.2d at 1202. This 

analysis focuses on whether two events “are related to the same set of facts 

and whether they could conveniently be tried together.” W. Sys., Inc. v. 

Ulloa, 958 F.2d 864, 871 (9th Cir. 1992) (citing Restatement (Second) of 

Judgments § 24(2) (1982)).

¶19 Here, the First Lawsuit and the Fifth Lawsuit arise out of the 

same transactional nucleus of facts—Freescale’s actions related to Myers’s

termination of employment—and could have conveniently been tried 
MYERS, JR. v. FREESCALE

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together. See Mpoyo, 430 F.3d at 987 (reasoning that the second lawsuit 

related to employer’s conduct leading to employee’s termination was 

barred by claim preclusion). Myers opposed summary judgment in the 

First Lawsuit by asserting that the signature on the Brush Declaration 

(which described Freescale’s investigation of Myers’s conduct leading to his 

termination) had “obviously been forged,” but the district court 

nevertheless ruled against him. And after the district court entered 

judgment in the First Lawsuit, Myers filed a post-judgment motion alleging 

“Fraud on the Court” based on the same Housley Affidavit attached to the 

Fifth Lawsuit’s complaint. The district court denied the motion. Thus, 

Myers’s allegations in the Fifth Lawsuit concerning the authenticity (and 

accuracy) of the Brush Declaration, as well as Freescale’s actions during the 

investigation into harassment claims against him, were previously litigated 

and decided against him in the First Lawsuit. See W. Radio Servs. Co. v. 

Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997) (claim preclusion bars relitigation of claims that have already been litigated or could have been 

litigated in a prior action).

¶20 As evidenced throughout the litigation, Myers alleged fraud 

upon the court in the Fifth Lawsuit to revive his original discrimination 

claim from the First Lawsuit. The complaint in the Fifth Lawsuit made 

multiple references to Freescale’s actions during the sexual harassment 

investigation, alleging that Freescale never conducted an extensive internal 

investigation and that no women had ever alleged that Myers 

inappropriately touched them. In the prayer for relief in the complaint, 

Myers again referenced the original discrimination claim and requested 

that Freescale be ordered to create workplace policies to eradicate its 

unlawful employment practices. And, again based on the same actions, 

Myers moved (unsuccessfully) to amend his complaint in the Fifth Lawsuit 

to add all three of his claims from the First Lawsuit—age discrimination, 

conversion, and defamation. Furthermore, he later requested punitive 

damages and alleged that the case began with a “slanderous email” from a 

senior executive at Freescale and resulted in the human resources manager 

defaming Myers.

¶21 Myers’s ultimate goal in this case clearly mirrored that of his 

previous cases; in fact, he acknowledged in superior court that he has “been 

suing [Freescale] for damages from [w]rongful termination for more than 

four and a half years with no Jury Trial.” Thus, the Fifth Lawsuit arises out 

of the same transactional nucleus of facts as the previous lawsuits.

¶22 With respect to the remaining three criteria, see Mpoyo, 430 

F.3d at 987, Freescale’s interest in finality of the judgment in the First 
MYERS, JR. v. FREESCALE

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Lawsuit would be impaired if the Fifth Lawsuit were allowed to continue. 

Both the First and the Fifth Lawsuits involve alleged infringement of the 

same rights related to the investigation into Myers and termination of his 

employment, although the Fifth Lawsuit is one step removed (alleging lies 

about the investigation). Finally, Myers presented the same evidence—the 

Housley Affidavit—in the Fifth Lawsuit as he did in the First Lawsuit’s 

post-judgment motions. Accordingly, the superior court did not err by 

finding Myers’s claim for fraud on the court to be barred by claim 

preclusion.

III. Myers’s Discovery Motions.

¶23 Myers also argues that the superior court erred by not 

permitting him to complete discovery. We review the superior court’s 

discovery and disclosure rulings for an abuse of discretion. Marquez v. 

Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 2013).

¶24 Myers contends that the superior court improperly (1) denied 

his motions to compel production of documents related to Freescale’s 

sexual harassment investigation, (2) denied his request for the court to 

conduct an in camera review of Freescale’s privilege log, and (3) failed to 

permit Myers to depose Freescale’s custodian of records. But Myers’s brief 

on appeal fails to offer any legal authority to support his contentions and 

fails to otherwise explain how the superior court’s rulings were an abuse of 

discretion. See ARCAP 13(a)(7)(A); Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 

62 (App. 2009) (failure to develop argument on appeal results in waiver).

¶25 Moreover, the record does not support Myers’s claims of 

error. Freescale avers that it fully complied with its disclosure obligations, 

including providing a privilege log for undisclosed items, and Myers offers 

no record evidence to controvert that avowal. And Myers in fact deposed 

Brush, who was also Freescale’s listed custodian of records, concerning the 

documents produced by Freescale. Finally, Myers failed to even argue that 

the documents he requested for in camera review were not privileged, 

much less make a “factual showing to support a reasonable, good faith 

belief that the document is not privileged.” See Lund v. Myers, 232 Ariz. 309, 

312, ¶ 15 (2013). We thus affirm the superior court’s discovery rulings.

IV. Post-Judgment Motions.

¶26 Myers contends that the superior court erred by denying his 

post-judgment motions asserting fraud on the court. We review this denial 

for an abuse of discretion. Searchtoppers.com, L.L.C. v. TrustCash LLC, 231 

Ariz. 236, 241, ¶ 20 (App. 2012).
MYERS, JR. v. FREESCALE

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¶27 First, Myers failed to develop any legal argument to support 

this claim of error on appeal. See ARCAP 13(a)(7)(A). Moreover, the 

allegations in Myers’s post-judgment motions (which largely restated the 

allegations of his complaint) do not affect the basis of the superior court’s 

ruling that because Myers had previously litigated the same claims, his 

claims in the Fifth Lawsuit were barred by claim preclusion as a matter of 

law. Thus, the superior court did not abuse its discretion by denying 

Myers’s post-judgment motions.

V. Attorney’s Fees and Costs on Appeal.

¶28 Freescale requests an award of its attorney’s fees and costs on 

appeal, as relevant here, under A.R.S. § 12-349 and ARCAP 25. The statute 

permits an award of reasonable attorney’s fees if a party brings a claim 

“without substantial justification,” meaning a claim that “is groundless and 

is not made in good faith.” A.R.S. § 12-349(A)(1), (F); see also ARCAP 25 

(authorizing sanction of costs or attorney’s fees for a frivolous appeal).

¶29 Based on our review of the record and the briefing on appeal, 

we conclude that Myers brought this action and filed this appeal without 

substantial justification, and that the appeal is frivolous. See A.R.S. § 12-

349(A)(1), (F). Myers has filed five lawsuits related to the sexual 

harassment investigation and his termination of employment. In three 

prior cases (the Second, Third, and Fourth Lawsuits), courts have found

Myers’s lawsuits barred by claim preclusion. Despite the initial dismissal 

of the First Lawsuit and the three previous dismissals based on claim 

preclusion, Myers brought the Fifth Lawsuit asserting the same claims, 

which remain barred by claim preclusion. A plaintiff who repeatedly

brings litigation over the same issue after courts have previously stated he

is barred from doing so, does so “without substantial justification.” See

A.R.S. § 12-349(F). Accordingly, and having considered all relevant factors 

set forth in § 12-350, we award Freescale reasonable attorney’s fees and 

costs on appeal as a sanction against Myers under A.R.S. § 12-349 and 

ARCAP 25, contingent upon Freescale’s compliance with ARCAP 21.
MYERS, JR. v. FREESCALE

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CONCLUSION

¶30 For the foregoing reasons, we affirm. We award reasonable 

attorney’s fees and costs on appeal to Freescale upon compliance with 

ARCAP 21.