F I L E D

United States Court of Appeals

Tenth Circuit

APR 13 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICIA STYSKAL,

Plaintiff-Appellant,

v. No. 03-1179

WELD COUNTY BOARD OF

COUNTY COMMISSIONERS; ED

JORDAN, Sheriff, in his official

capacity, 

Defendants,

and

MIKE WITMAN; JOHN KIELIAN,

DALE BEVERLY, JOHN AND JANE

DOES 1-20, whose true names are

presently unknown,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 02-K-81)

Submitted on the briefs:

John W. McKendree, Law Offices of John W. McKendree, Denver, Colorado, for

Plaintiff-Appellant.
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Trevor J. MacLennan of Ramirez & MacLennan, Wheat Ridge, Colorado,

Kimberly B. Schutt of Wick Campbell Bramer Ukasik & Trautwein, LLC, Fort

Collins, Colorado, Jeffrey J. Richards and Michael S. Simpson of Anstine Hill

Richards & Simpson, Denver, Colorado, for Defendants-Appellees.

Before EBEL , HENRY , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. 

Plaintiff Patricia Styskal appeals the district court’s dismissal with

prejudice of her claims against Appellees Mike Witman, John Kielian, and Dale

Beverly. She contends that because the district court held that it lacked

supplemental jurisdiction under 28 U.S.C. § 1367 to hear her state-law claims

against Appellees, it should have dismissed those claims without prejudice to

enable her to refile them in state court. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm. 

Plaintiff filed suit in the United States District Court for the District of

Colorado against Appellees, 20 John and Jane Does, and two other named

defendants, the Weld County Board of Commissioners (the Board) and Weld
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County Sheriff Ed Jordan. According to her second amended complaint: In

November 1994 Plaintiff purchased property in Weld County, Colorado, that

included two residential buildings and a detached garage. Appellees are

Plaintiff’s neighbors, and hold an easement for an irrigation ditch across her

property. They engaged in various conduct constituting a trespass under Colorado

law, negligently damaged her property, and conspired against her. The sheriff’s

department refused to respond and protect her when she complained about

Appellees’ behavior. The Board improperly determined that the buildings on her

property could not be simultaneously used as residences under the county zoning

ordinance and building codes, and informed her that she must “completely revamp

a bathroom in the structure in which [she] was forced to render uninhabitable,”

Aplt. App. at 111 ¶ 46. 

Plaintiff sued the Board and Sheriff Jordan under 42 U.S.C. § 1983,

contending that the Board’s enforcement of the county zoning ordinance

constituted a taking in violation of the Fourteenth Amendment, and that the Board

and Sheriff Jordan discriminated against her, in violation of her Fourteenth

Amendment right to equal protection of the laws, because she is an unmarried

woman. She also alleged state-law claims against Appellees for trespass,

negligence, and conspiracy, asserting that “those claims are substantially part of

the same case and/or controversy” as the federal questions presented in her
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complaint. Aplt. App. at 105 ¶ 8. All defendants moved to dismiss. Appellees

argued that the district court lacked supplemental jurisdiction over Plaintiff’s

state-law claims against them. 

On November 26, 2002, the district court entered an order ruling on the

motions to dismiss. First, the court agreed with Plaintiff’s concession that her

takings claim against the Board should be dismissed without prejudice. Second,

the court granted motions by the Board and Sheriff Jordan to dismiss Plaintiff’s

equal protection claims, but gave Plaintiff until December 16, 2002, to amend her

complaint or face dismissal with prejudice. Third, the court dismissed with

prejudice Plaintiff’s state-law claims against Appellees, finding that it lacked

supplemental jurisdiction to hear these claims “because they are not sufficiently

related to the § 1983 claims to form part of the same case or controversy as the[]

federal claims.” Id. at 120. Plaintiff failed to amend her complaint to cure

deficiencies in her equal protection claims against the Board and Sheriff Jordan;

and on January 7, 2003, the district court dismissed with prejudice those claims

“and her Complaint as a whole.” Id. at 123. 

On April 10, 2003, Plaintiff moved the district court to enter judgment in

the action to enable her to appeal its decision. The district court granted

Plaintiff’s motion and entered judgment on April 14, 2003. Plaintiff timely
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appealed to this court. She challenges the dismissal of her claims against

Appellees, but not the dismissal of those against the Board and Sheriff Jordan. 

Plaintiff’s sole argument on appeal is that because the district court

declined to exercise supplemental jurisdiction over her state-law claims against

Appellees, its dismissal of those claims should not have been with prejudice. 

According to Plaintiff, the district court “should have instead dismissed them

without prejudice so that they could be pursued in state court.” Aplt. Br. at 9. 

Appellees counter that the district court could have properly dismissed Plaintiff’s

state-law claims on the merits, and that even if it erred by dismissing these claims

with prejudice, Plaintiff failed to object or to move to amend the judgment under

Federal Rule of Civil Procedure 60. We need not consider Appellees’ arguments,

however, because Plaintiff’s appeal is based on a misconception of the meaning

of dismissal “with prejudice.” 

Plaintiff could find substantial support for her contention that a dismissal

for lack of jurisdiction should be “without prejudice.” See Gold v. United Food

& Commercial Workers, 159 F.3d 1307, 1311 (10th Cir. 1998); Textile

Productions, Inc. v. Mead Corp., 134 F.3d 1481, 1486 (Fed. Cir. 1998); Crotwell

v. Hockman-Lewis Ltd., 734 F.2d 767, 769 (11th Cir. 1984). But see Steele v.

Federal Bureau of Prisons, 355 F.3d 1204, 1213-14 (10th Cir. 2003) (affirming

dismissal with prejudice of Federal Tort Claims Act claim for lack of
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jurisdiction). The premise underlying these decisions is that a dismissal of a

claim with prejudice necessarily has claim-preclusive effects in other

jurisdictions. See Gold, 159 F.3d at 1311; 9 Wright & Miller, Federal Practice &

Procedure § 2373 at 396-98 (2d ed. 1995). 

That premise, however, was recently rejected by the United States Supreme

Court. In Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001), a

federal district court in California exercising diversity jurisdiction had dismissed

the plaintiff’s claim “on the merits and with prejudice” on statute-of-limitations

grounds. The question before the Court was whether the plaintiff’s identical

claim filed in Maryland state court was barred by that dismissal. 

The defendant, arguing claim preclusion, relied on Federal Rule of Civil

Procedure 41(b), which states: 

Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to

prosecute or to comply with these rules or any order of court, a

defendant may move for dismissal of an action or of any claim

against the defendant. Unless the court in its order for dismissal

otherwise specifies, a dismissal under this subdivision and any

dismissal not provided for in this rule, other than a dismissal for lack

of jurisdiction, for improper venue, or for failure to join a party

under Rule 19, operates as an adjudication upon the merits. 

The defendant pointed out that the dismissal in the California federal court

“operate[d] as an adjudication upon the merits” because the court’s order did not

“otherwise specif[y]” and was not a dismissal “for lack of jurisdiction, for

improper venue, or for failure to join a party.” Semtek, 531 U.S. at 501. 
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The Supreme Court accepted the defendant’s characterization of the federal

court dismissal but rejected the proposition that “all judgments denominated ‘on

the merits’ are entitled to claim-preclusive effect.” Id. Acknowledging that

“[t]he original connotation of an ‘on the merits’ adjudication is one that actually

‘passes directly on the substance of a particular claim,’ id. at 501-02 (quoting

Restatement (Second) of Judgments § 19, cmt. a at 161 (1982) (brackets

omitted)), the Court said that nevertheless “over the years the meaning of the term

‘judgment on the merits’ ‘has gradually undergone change,’” id. at 502 (quoting

R. Marcus, M. Redish, & E. Sherman, Civil Procedure: A Modern Approach

1140-41 (3d ed. 2000).) According to the Court, the term “has come to be applied

to some judgments . . . that do not pass upon the substantive merits of a claim, id.

at 502, and “it is no longer true that a judgment ‘on the merits’ is necessarily a

judgment entitled to claim-preclusive effect,” id. at 503. The court concluded

that the phrase “adjudication upon the merits” in Rule 41(b) does not mean that

the judgment must result in claim preclusion. Id. at 503-05. 

The Court decided that “adjudication upon the merits” is simply “the

opposite of a ‘dismissal without prejudice.’” Id. at 505. And according to the

Court, “The primary meaning of ‘dismissal without prejudice’ . . . is dismissal

without barring the plaintiff from returning later, to the same court, with the same

underlying claim.” Id. As the Court summed up: 
1For example, if the federal court’s ruling is based on the substance of the

claim (what has often been termed an “adjudication on the merits,” see Semtek,

531 U.S. at 501-05 (but holding that this is not the meaning of the phrase in Fed.

R. Civ. P. 41(b))), the doctrine of claim preclusion would ordinarily prevent

further proceedings on the claim in a later state action. But if the federal court’s

dismissal is based on a procedural ground, the federal ruling is unlikely to have

any preclusive effect in state court, even though the dismissal may bar the

plaintiff from returning to federal court. See Steele, 355 F.3d at 1215 (Hartz, J.,

concurring). 

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We think, then, that the effect of the ‘adjudication upon the

merits’ default provision of Rule 41(b)--and, presumably, of the

explicit order in the present case that used the language of that

default provision--is simply that, unlike a dismissal ‘without

prejudice,’ the dismissal in the present case barred refiling in the

United States District Court for the Central District of California. 

That is undoubtedly a necessary condition, but it is not a sufficient

one, for claim-preclusive effect in other courts. 

Id. at 506. From this statement we may fairly “infer that when a [federal] court

rules that a dismissal is with prejudice, it is saying only that the claim cannot be

refiled in that court.” 355 F.3d at 1215 (Hartz, J., concurring) (internal quotation

marks omitted). 

Thus, the dismissal with prejudice by the district court in this case does not

necessarily mean anything more than that Plaintiff cannot refile her claim in the

United States District Court for the District of Colorado. Whether she is barred

from filing her claim in Colorado state court is a matter of claim-preclusion law

that is not determined solely by how the federal court dismissal is styled.1 As a

result, the relief sought by Plaintiff—restyling the federal court dismissal as
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“without prejudice”—is beside the point. The state court’s decision regarding

whether claim preclusion prevents a state lawsuit will depend upon the basis of

the federal court’s dismissal, not the nomenclature employed by the federal court

to describe the dismissal. 

In sum, the district court’s judgment does not necessarily preclude Plaintiff

from refiling her state-law claims against Appellees in state court. Although it

does preclude her from refiling them in federal court, we need not concern

ourselves with whether the district court erred in that regard, because Plaintiff

does not argue the point. Plaintiff’s sole concern on this appeal is that the district

court’s denomination of the dismissal as ‘with prejudice” necessarily bars her

from refiling her state-law claims in state court. Because this concern is illfounded, we AFFIRM the judgment below.