## 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.-2-

Trevor J. MacLennan of Ramirez & MacLennan, Wheat R idge, 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 Defendant s-Appellees.

Before EBEL , HENRY , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. Plaintiff Patricia Styskal appeals the district cou rt’s dismissal with prejudice of her claims against Appellees Mike Witm an, John Kielian, and Dale Beverly. She contends that because the district co urt 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 c laims without prejudice to enable her to refile them in state court. Exercisi ng 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-3-

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 g arage. 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 conspire d against her. The sheriff’s department refused to respond and protect her when she complained about Appellees’ behavior. The Board improperly determin ed that the buildings on her property could not be simultaneously used as reside nces under the county zoning ordinance and building codes, and informed her thatshe must “completely revamp a bathroom in the structure in which [she] was forc ed to render uninhabitable,” Aplt. App. at 111 ¶ 46. Plaintiff sued the Board and Sheriff Jordan under 4 2 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 vi olation of her Fourteenth Amendment right to equal protection of the laws, be cause she is an unmarried woman. She also alleged state-law claims against Appellees for trespass, negligence, and conspiracy, asserting that “those c laims are substantially part of the same case and/or controversy” as the federal qu estions presented in her-4-

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 anorder ruling on the motions to dismiss. First, the court agreed with P laintiff’s concession that her takings claim against the Board should be dismissedwithout prejudice. Second, the court granted motions by the Board and Sheriff Jordan to dismiss Plaintiff’s equal protection claims, but gave Plaintiff until D ecember 16, 2002, to amend her complaint or face dismissal with prejudice. Third, the court dismissed with prejudice Plaintiff’s state-law claims against Appe llees, finding that it lacked supplemental jurisdiction to hear these claims “bec ause they are not sufficiently related to the § 1983 claims to form part of the sa me case or controversy as the[] federal claims.” Id . at 120. Plaintiff failed to amend her complaint to cure deficiencies in her equal protection claims againstthe Board and Sheriff Jordan; and on January 7, 2003, the district court dismisse d with prejudice those claims “and her Complaint as a whole.” Id . at 123. On April 10, 2003, Plaintiff moved the district cou rt to enter judgment in the action to enable her to appeal its decision. T he district court granted Plaintiff’s motion and entered judgment on April 14 , 2003. Plaintiff timely-5-

appealed to this court. She challenges the dismiss al 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 overher state-law claims against Appellees, its dismissal of those claims should no t 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.” Ap lt. Br. at 9. Appellees counter that the district court could hav e properly dismissed Plaintiff’s state-law claims on the merits, and that even if iterred by dismissing these claims with prejudice, Plaintiff failed to object or to mo ve to amend the judgment under Federal Rule of Civil Procedure 60. We need not co nsider Appellees’ arguments, however, because Plaintiff’s appeal is based on a m isconception of the meaning of dismissal “with prejudice.” Plaintiff could find substantial support for her co ntention that a dismissal for lack of jurisdiction should be “without prejudi ce.” 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) (affirmin g dismissal with prejudice of Federal Tort Claims Actclaim for lack of-6-

jurisdiction). The premise underlying these decisi ons is that a dismissal of a claim withprejudice necessarily has claim-preclusive effects in other jurisdictions. See Gold , 159 F.3d at 1311; 9 Wright & Miller, Federal Prac tice & 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 div ersity jurisdiction had dismissed the plaintiff’s claim “on the merits and with preju dice” on statute-of-limitations grounds. The question before the Court was whetherthe plaintiff’s identical claim filed in Maryland state court was barred by t hat dismissal. The defendant, arguing claim preclusion, relied on Federal Rule of Civil Procedure 41(b), which states: Involuntary Dismissal: Effect Thereof. For failur e of the plaintiff to prosecute or to comply with these rules or any orde r of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its ord er for dismissal otherwise specifies, a dismissal under this subdivi sion and any dismissal not provided for in this rule, other thana 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” bec ause 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.” S emtek , 531 U.S. at 501.-7-

The Supreme Court accepted the defendant’s characte rization 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’ a djudication is one that actually ‘passes directly on the substance of a particular c laim,’ id . at 501-02 (quoting Restatement (Second) of Judgments § 19, cmt. a at 1 61 (1982) (brackets omitted)), the Court said that nevertheless “over t he years the meaning of the term ‘judgment on the merits’ ‘has gradually undergone c hange,’” id . at 502 (quoting R. Marcus, M. Redish, & E. Sherman, Civil Procedure : A Modern Approach 1140-41 (3d ed. 2000).) According to the Court, th e term “has come to be applied to some judgments . . . that do not pass upon the s ubstantive 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 merit s” is simply “the opposite of a ‘dismissal without prejudice.’” Id . at 505. And according to the Court, “The primary meaning of ‘dismissal without p rejudice’ . . . is dismissal without barring the plaintiff from returning later, to the same court, with the same underlying claim.” Id . As the Court summed up:1 For 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 th e meaning of the phrase in Fed. R. Civ. P. 41(b))), the doctrine of claim preclusio n would ordinarily prevent further proceedings on the claim in a later state a ction. But if the federal court’s dismissal is based on a procedural ground, the fede ral ruling is unlikely to have any preclusive effect in state court, even though t he dismissal may bar the plaintiff from returning to federal court. See Steele , 355 F.3d at 1215 (Hartz, J., concurring). -8-

We think, then, that the effect of the ‘adjudicatio n upon the merits’ default provision of Rule 41(b)--and, presu mably, of the explicit order in the present case that used the la nguage of that default provision--is simply that, unlike a dismiss al ‘without prejudice,’ the dismissal in the present case barre d refiling in the United States District Court for the Central Distri ct of California. That is undoubtedly a necessary condition, but it i s not a sufficient one, for claim-preclusive effect in other courts. Id . at 506. From this statement we may fairly “inferthat when a [federal] court rules that a dismissal is with prejudice, it is say ing 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 Co lorado. 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 co urt dismissal is styled. 1 As a result, the relief sought by Plaintiff—restyling th e federal court dismissal as-9-

“without prejudice”—is beside the point. The state court’s decision regarding whether claim preclusion prevents a state lawsuit w ill 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 nece ssarily preclude Plaintiff from refiling her state-law claims against Appellee s in state court. Although it does preclude her from refiling them in federal cou rt, 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 prej udice” necessarily bars her from refiling her state-law claims in state court. Because this concern is illfounded, we AFFIRM the judgment below.