United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2856

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Larry Pohlmann, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Bil-Jax, Inc., *

*

Defendant - Appellee. *

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Submitted: February 10, 1999

Filed: June 2, 1999

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Before WOLLMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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LOKEN, Circuit Judge.

A scaffold collapsed in August 1989, injuring carpenter Larry Pohlmann.

Pohlmann sued the manufacturer, Bil-Jax, Inc., in a Missouri state court. Bil-Jax

answered, asserting lack of personal jurisdiction as a defense. After a trial, the jury

returned a $2,000,000 verdict in favor of Pohlmann. The trial court ordered a new trial

or a remittitur to $362,339. Pohlmann refused the remittitur and appealed the grant of

a new trial. The Missouri Court of Appeals remanded with directions to dismiss the

complaint “without prejudice” for lack of personal jurisdiction. Pohlmann v. Bil-Jax,

Inc., 954 S.W.2d 371, 374 (Mo. App. 1997). 
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Pohlmann then filed this action in Missouri state court. The second complaint

recited the dismissal of his prior suit without prejudice, reasserted causes of action for

strict liability and negligence, and added claims for punitive damages and prejudgment

interest. Bil-Jax removed, invoking the district court’s diversity jurisdiction, and

moved to dismiss on the ground that the prior Missouri Court of Appeals decision

precluded Pohlmann from relitigating the personal jurisdiction issue. The district court

agreed, dismissing the complaint for lack of personal jurisdiction because “the personal

jurisdiction issue has already been decided by the Missouri courts.” Pohlmann appeals.

Concluding that the preclusion issue is not so cut-and-dried, we reverse and remand.

The district court’s jurisdiction over the person of defendant Bil-Jax in this

diversity case turned on whether Bil-Jax was amenable to the personal jurisdiction of

the state court and had been validly served prior to removal. See Fed. R. Civ. P.

4(k)(1)(A); Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97 (1987). To resolve

that issue, we must determine whether Pohlmann’s second suit is precluded because

the Missouri Court of Appeals dismissed his first suit, without prejudice, for lack of

personal jurisdiction. The district court correctly stated the governing principle of

federal law -- “federal courts must give state court judgments the same preclusive effect

they would be given by other courts in the state from which the judgment emerged.”

Butler v. City of North Little Rock, 980 F.2d 501, 503 (8th Cir. 1992). 

Pohlmann argues the Missouri Court of Appeals decision is entitled to no

preclusive effect because it was a dismissal without prejudice that did not adjudicate

the merits of his claims and left him free to commence another action. We generally

agree that dismissal of a case without prejudice does not result in claim preclusion (to

use more venerable terminology, it creates no res judicata bar). But an issue actually

decided in a non-merits dismissal is given preclusive effect in a subsequent action

between the same parties (in the older terminology, the first adjudication creates a

collateral estoppel). Many cases have given this kind of preclusive effect to rulings on

personal jurisdiction as well as other jurisdiction issues. See, e.g., Deckert v.
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Wachovia Student Fin. Servs., 963 F.2d 816 (5th Cir. 1992); Kitces v. Wood, 917 F.

Supp. 338 (D.N.J. 1996); 18 J. WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE §

132.03[5][c] (3d ed.1999). The Supreme Court of Missouri invoked this doctrine in

holding that a dismissal without prejudice for lack of subject matter jurisdiction barred

another action in Missouri for the same cause. See Healy v. Atchison, Topeka & Santa

Fe R.R., 287 S.W.2d 813, 815 (Mo. 1956). Indeed, that Court has frequently noted the

potential preclusive effect of non-merits dismissals in deciding that such dismissals are

appealable orders. See Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1,

3 (Mo. banc 1997) (dismissal for lack of jurisdiction); Douglas v. Thompson, 286

S.W.2d 833, 834 (Mo. 1956) (dismissal because petition lacked required plaintiff’s

address). If the Missouri Supreme Court would apply this doctrine to preclude

relitigation of the issue of personal jurisdiction, we must affirm. 

Under Missouri law, the first question in deciding whether collateral estoppel

applies is “whether the issue decided in the prior adjudication was identical with the

issue presented in the present action.” Oates v. Safeco Ins. Co., 583 S.W.2d 713, 719

(Mo. banc 1979). In this case, the district court defined “the issue” as “the question

of personal jurisdiction in Missouri.” But in Missouri, as in other jurisdictions, the

issue of personal jurisdiction turns on whether the trial court has jurisdiction over the

person of a defendant at the time the suit is commenced. See Bridges v. Bridges, 559

S.W.2d 753 (Mo. App. 1977); accord Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d

44, 52 (2d Cir. 1991); ASARCO, Inc. v. Glenara, Ltd., 912 F.2d 784, 787 n.1 (5th Cir.

1990); 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 1051, at 161-62 (2d ed. 1987). In some cases, resolving that issue

requires findings as to the parties’ contacts with the forum State “at the time of the

events underlying the dispute.” Steel v. United States, 813 F.2d 1545, 1549 (9th Cir.

1987). But the court’s personal jurisdiction is time sensitive in each case. The issue

of whether the Missouri trial court had personal jurisdiction over Bil-Jax when

Pohlmann commenced his first suit in November 1993 is not identical to the issue

whether that court had personal jurisdiction over Bil-Jax when the second suit was filed
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in December 1997. Thus, collateral estoppel does not apply so as to preclude, to use

the district court’s phrase, “the question of personal jurisdiction in Missouri.”

This proposition is demonstrated by hypothetically changing a critical fact in one

of the above-cited cases. In Kitces v. Wood, 917 F. Supp. at 340, a New Jersey

plaintiff sued a Pennsylvania defendant for an auto accident that occurred on a bridge

between New Jersey and Pennsylvania. The New Jersey court determined the accident

occurred on the Pennsylvania side of the bridge and dismissed the suit for lack of

personal jurisdiction over the Pennsylvania defendant. Plaintiff then sued in

Pennsylvania, but that suit was dismissed as time-barred, so plaintiff filed a third suit

in the District of New Jersey. The Court dismissed the third suit as precluded by the

New Jersey court’s prior personal jurisdiction dismissal. On the facts of that case, we

agree. But suppose that between the dismissal of the second suit and the filing of the

third defendant had moved to New Jersey, and that plaintiff had personally served the

third summons on defendant at her New Jersey home. Now the New Jersey courts

(federal and state) would indisputably have personal jurisdiction over defendant in the

third suit because the critical jurisdictional facts had changed. Cf. Burnham v. Superior

Court, 495 U.S. 604 (1990). In general, collateral estoppel does not preclude

relitigating a jurisdictional issue when “subsequent events . . . create a new legal

situation or alter the legal rights or relations of the litigants.” 46 AM. JUR. 2D

JUDGMENTS § 631. 

In our view, there are practical reasons why this distinction has not resulted in

the relitigation of personal jurisdiction issues in the many cases where plaintiffs

unsuccessfully sought to invoke a court’s long-arm jurisdiction over a foreign

corporation. Most corporate defendants raise serious personal jurisdiction issues in an

early motion to dismiss. Typically, in response to such a motion, the court will grant

plaintiff reasonable discovery on the personal jurisdiction issue. The issue is then

decided on a full jurisdictional fact record, with the court making supporting findings

of fact if it decides to dismiss for lack of personal jurisdiction. When that decision
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becomes final, the adjudicated jurisdictional facts will be given preclusive effect, and

any attempt by plaintiff to file a second suit in the courts of that State will result in a

quick dismissal, unless critical jurisdictional facts have changed in the interim. The

jurisdictional fact-finding in the first suit dooms the second because, even in

jurisdictions where collateral estoppel is limited to questions of fact, not issues of law,

questions of material fact that are determinative of legal issues may not be relitigated

except, perhaps, to avoid injustice. 

In contrast to the more typical cases, Bil-Jax in this case lay in the weeds for

two-and-one-half years and then sprung its jurisdictional trap by a motion for directed

verdict at the close of Pohlmann’s case in the trial of the first lawsuit. By then, Bil-Jax

no doubt hoped that Pohlmann’s claims were time-barred in all other jurisdictions. The

trap caught its prey, and Pohlmann’s first suit was dismissed for lack of personal

jurisdiction. There were no jurisdictional findings in the trial court, simply a ruling by

the appellate court that the trial record did not establish the trial court’s personal

jurisdiction over Bil-Jax when the first suit was commenced in November 1993. That

ruling sheds little if any light on the different legal issue whether Missouri courts,

including the district court, had personal jurisdiction over Bil-Jax when the second suit

was commenced in December 1997. In these circumstances, we conclude the Supreme

Court of Missouri would not dismiss the second suit on the ground that “the question

of personal jurisdiction in Missouri” was preclusively determined in the first suit.

Accordingly, the judgment of the district court is reversed and the case is remanded for

further proceedings not inconsistent with this opinion.

A true copy.

Attest:

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