* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10 TH C IR . R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 29 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MICHAEL L. SAVILLE, Plaintiff - Appellant,

v. INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation, Defendant - Appellee. No. 03-4172 (2:02-CV-598-TC) (D. Utah)

ORDER AND JUDGMENT *

Before HENRY , BALDOCK , and BRISCOE , Circuit Judges. In light of the Appellant’s Motion to Waive Oral Ar gument, we vacated oral arguments in this matter and excused counsel f rom appearing in Oklahoma City, Oklahoma. Having now examined the briefs, th e supplemental briefs and appendix, and the record, this panel has determined unanimously to decide and submit this case on the briefs. See F ED . R. A PP . P. 34(f); 10 TH C IR . R. 34.1(G).2

In their supplemental briefs, both parties acknowle dge that the appeal in this case ( Saville II

) is now moot because the district court has reache d a final decision in Mr. Saville’s earlier-filed case ( Saville I ). See Aplt’s Supl. Br. at 2 (“With respect to the issue of mootness, Mr. Savill e recognizes that Judge Benson’s recent decision in Saville I is a final decision and, as a practical matter, probably does render Mr. Saville’s appeal in the in stant case (“ Saville II ”) moot.”); Aple’s Supl. Br. at 4 (“the court should . . . summarily dismiss his present appeal as moot . . . .”). Whether we should dismiss the case with prejudice, however, is disputed. Mr. Saville advocates a dismissal without prejudice , which would leave open the possibility of him refiling this appeal in Saville II if he successfully appeals Judge Benson’s recent decision in Saville I . IBM urges us to dismiss the appeal with prejudice as a matter of law and asserts that under res judicata principles, we must either dismiss the appeal as moot or affirm the dis trict court’s judgment. “Under res judicata, or claim preclusion, a final j udgment on the merits of an action precludes the parties or their privies fr om relitigating issues that were or could have been raised in the prior action.” Satsky v. Paramount Comm., Inc. , 7 F.3d 1464, 1467 (10th Cir. 1993) (internal quotatio ns omitted). Res judicata requires the satisfaction of four elements: (1) the prior suit must have ended with a judgment on the merits; (2) the parties must be i dentical or in privity; (3) the3

suit must be based on the same cause of action; and (4) the plaintiff must have had a full and fair opportunity to litigate the cla im in the prior suit. Nwosun v. Gen. Mills Rests., Inc. , 124 F.3d 1255, 1257 (10th Cir. 1997). Mr. Saville concedes that the second, third, and fo urth elements of res judicata are satisfied. He acknowledges in his ope ning brief that “the parties are the same, and, for the sake of argument, Mr. Savill e is willing to concede that although the suits are based on different causes of action, the suits are based on the same set of underlying facts and transactions.” Aplt’s Br. at 9. He also concedes the “opportunity” element: “Mr. Saville do es not dispute that he had multiple opportunities to bring his claim of discri mination in violation of the Age Discrimination in Employment Act into the Fair Labo r Standards Act lawsuit (referred to herein as ‘ Saville I ’).” Aplt’s Reply Br. at 1. Mr. Saville asserted in his original briefs that re s judicata principles could not apply to Saville II

because the first element of res judicata remained unsatisfied: Saville I

had not yet proceeded to a final judgment on the m erits. In the first sentence of the section of his brief enti tled “Summary of Argument,” he states “[t]he claims in Saville I had not yet proceeded to any judgment, much less a final judgment, therefore, the trial court should not have applied any res judicata principles such as claim preclusion or the rule aga inst claim splitting to bar the claim in Saville II .” Aplt’s Br. at 7. He even asserted that “[c]ert ainly, if the4

claims in Saville II

could have been brought in Saville I, and if Saville I had proceeded to some final disposition or judgment, th en the second, later, suit of Saville II would and should be precluded.” Aplt’s Br. at 11. Judge Benson recently granted summary judgment in I BM’s favor in Saville I

. See Order & Opinion, Case 2:00-cv-681 in the District Court for the District of Utah, entered February 24, 2005. Coupled with Mr. Saville’s acknowledgment in his reply brief that “he had multiple opportunities to bring his claim of discrimination in violation of the Age Discriminati on in Employment Act into the Fair Labor Standards Act lawsuit,” Aplt’s Reply Br. at 1, this final judgment on the merits in Saville I

compels us to conclude that Mr. Saville has conced ed each element of res judicata as to the appeal in Saville II . Our review of the case also reveals that each element of res judicata is satisf ied. For the foregoing reasons, Mr. Saville’s appeal in Saville II, Tenth Circuit case number 03-4172, is moot. We hereby dismiss th e appeal with prejudice.

Entered for the Court Robert H. Henry Circuit Judge