Of the Tenth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-1067

PAUL S. GIRAGOSIAN,

Plaintiff, Appellant,

v.

FREDERICK RYAN and TOWN OF ARLINGTON, MA,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

 Torruella, Baldock, and Lipez, *

Circuit Judges.

Dean Carnahan for appellant.

Edward M. Marlenga for appellees. 

November 10, 2008
 Appellant also argues the district court erred in ruling 1

that he failed to state a cause of action under the Fourth and

Fourteenth Amendments. We do not address this issue, however,

because we hold that appellant’s federal action is barred by the

doctrine of res judicata. 

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BALDOCK, Circuit Judge. Appellant Paul Giragosian owned

and operated a gun shop in Arlington, Massachusetts for

approximately thirty-one years. In March 2007, Arlington’s Chief

of Police, Frederick Ryan, revoked and forfeited appellant’s

licenses to carry and sell firearms. Subsequently, appellant filed

a 42 U.S.C. § 1983 suit in federal district court alleging that

Ryan and the Town of Arlington violated his rights under the Fourth

and Fourteenth Amendments. The district court granted appellees’

motion to dismiss. 

The issues before us on appeal are (1) whether

appellant’s § 1983 claims are barred by res judicata, and

(2) whether the district court erred by converting appellees’

motion to dismiss into a motion for summary judgment. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm on the basis

of claim preclusion.1

I.

In addition to selling firearms at his gun shop in

Arlington, Massachusetts, appellant conducted training sessions on

the use of firearms. In January 2007, while appellant was training

a customer to use a handgun, the customer intentionally shot

himself in the head, dying as a result of the wound.
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On the same day of the incident, the Arlington Police

Department conducted an investigation and concluded that appellant

was not at fault for the customer’s suicide. One day later,

appellee Frederick Ryan, Arlington’s Chief of Police, suspended

appellant’s licenses to carry and sell firearms, pursuant to

Massachusetts General Laws chapter 140, pending further

investigation by the Arlington Police Department and the Middlesex

County District Attorney’s Office. Ryan also requested that the

United States Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) investigate appellant’s business for any potential

violations of federal law.

Appellant subsequently challenged the suspension of his

licenses in Massachusetts state court. In March 2007, after the

Arlington Police Department and the Middlesex District Attorney

completed their investigations confirming that appellant was not at

fault for the customer’s suicide, the Cambridge District Court

granted appellant’s request to vacate the license suspensions.

Rather than reinstating the licenses, Ryan sent a letter

to appellant revoking appellant’s licenses to carry firearms and

forfeiting his dealer licenses. Ryan’s letter listed several

reasons for the revocations and forfeitures, including, but not

limited to, (1) failure to report stolen firearms, (2) failure to

undergo a firearms safety instructor course mandated by the

Massachusetts state court following a similar customer suicide in
 The ATF report noted that appellant (1) manufactured ten 2

firearms without a manufacturing license, (2) failed to contact the

FBI for a background check prior to the sale of six firearms, (3)

failed to report the sale of multiple handguns to three

individuals, and (4) failed to properly document the gun shop’s and

appellant’s personal inventory of firearms.

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2002, and (3) various violations of state and federal law found

during the ATF investigation requested by Ryan.2

In April 2007, appellant filed a § 1983 action in federal

district court alleging Ryan and the Town of Arlington violated his

Fourth Amendment right to be free from unreasonable searches and

seizures, as well as his Fourteenth Amendment due process rights.

Appellant sought reinstatement of his firearms licenses pursuant to

Massachusetts law and damages under § 1983. One day later,

appellant filed a separate action in state court also seeking

reinstatement of his firearms licenses.

In May 2007, as the state and federal actions proceeded

simultaneously, appellant filed a motion in federal district court

for a temporary restraining order (“TRO”) to enjoin the state court

from ruling until the conclusion of the federal case. Appellant

argued that the state court judge “greeted Defendant Ryan with an

excess of cordiality,” demonstrating the state court’s “bias and

favoritism” towards Ryan. The district court denied appellant’s

motion.

In June 2007 the state court refused reinstatement of

appellant’s licenses, finding “sufficient grounds to conclude that
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the decision of [Ryan] in revoking [appellant’s] firearms licenses

was reasonable and not arbitrary, capricious or an abuse of

discretion.” See Giragosian v. Ryan, No. 07-10730 (Mass. Dist. Ct.

June 7, 2007). Following the state-court’s ruling, a federal

magistrate judge requested supplemental briefing from the parties

regarding the state-court judgment’s effect on appellees’ pending

motion to dismiss. Appellees’ argued in their supplemental

memorandum that the state-court judgment barred appellant’s federal

cause of action pursuant to the doctrine of res judicata (both

issue and claim preclusion). Appellant argued the federal district

court should ignore the state-court judgment because of the state

court judge’s lack of impartiality and numerous errors of law. 

In August 2007, the federal magistrate judge recommended

the district court grant appellees’ Rule 12(b)(6) motion to

dismiss. The magistrate judge ruled (1) issue preclusion barred

the federal district court from reexamining whether Ryan’s actions

were arbitrary, capricious, or an abuse of discretion, (2) the

post-deprivation review process available in state court provided

appellant adequate process, and (3) qualified immunity shielded

Ryan and the Town of Arlington from suit. The district court

rejected the magistrate judge’s recommendation as to qualified

immunity. The district court ruled that the federal magistrate

judge relied on information outside the four corners of the

complaint in finding qualified immunity. Thus, that issue could
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only be resolved on a motion for summary judgment. The district

court, however, agreed with the magistrate judge’s conclusion that

appellant failed to “state a cause of action for a violation of due

process rights under the Fourteenth Amendment to the Constitution

or Fourth Amendment rights.” Accordingly, the district court

granted appellees’ motion to dismiss.

II.

The issues we address on appeal concern the legal

sufficiency of appellant’s complaint. Our review, therefore, is

de novo. See Torromeo v. Town of Freemont, 438 F.3d 113, 115 (1st

Cir. 2006). We, like the district court, assume the truth of all

well-pled facts and give appellant the benefit of all reasonable

inferences drawn therefrom. See Alvarado Aguilera v. Negrón, 509

F.3d 50, 52 (1st Cir. 2007).

A.

We first consider whether appellant’s § 1983 action is

barred by the doctrine of res judicata. “Disposition of [a]

federal action, once [a] state-court adjudication is complete, [is]

governed by preclusion law.” Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 544 U.S. 280, 293 (2005). “Under the full faith and

credit statute, 28 U.S.C. § 1738, a judgment rendered in a state

court is entitled to the same preclusive effect in federal court as

it would be given within the state in which it was rendered.” In

re Sonus Networks Inc., 499 F.3d 47, 56 (1st Cir. 2007) (citing
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Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81

(1984)). Therefore, we look to Massachusetts law to determine the

preclusive effect of the state-court judgment. Id. 

In Massachusetts, res judicata encompasses both claim

preclusion and issue preclusion. Id. (citing Kobrin v. Bd. of

Registration in Med., 832 N.E.2d 628, 634 (Mass. 2005)). Claim

preclusion prevents the relitigation of all claims that a “litigant

had the opportunity and incentive to fully litigate . . . in an

earlier action.” Id. Massachusetts evaluates three elements under

the doctrine of claim preclusion: “(1) the identity or privity of

the parties to the present and prior actions; (2) identity of the

cause[s] of action; and (3) a prior final judgment on the merits.”

McDonough v. City of Quincy, 452 F.3d 8, 16 (1st Cir. 2006). When

assessing the second element of claim preclusion, Massachusetts

courts find “[c]auses of action [to be] identical if they ‘derive[]

from the same transaction or series of connected transactions.’”

Id. (quoting TLT Const. Corp. v. A. Anthony Tappe & Assoc., 716

N.E.2d 1044, 1052 (Mass. App. Ct. 1999)).

While Massachusetts’ case law does not directly address

the relevance of the order in which parallel actions are filed, the

general rule is that “when two actions are pending which are based

on the same claim, or which involve the same issue, it is the final

judgment first rendered in one of the actions which becomes

conclusive in the other action . . ., regardless of which action
 While the district court dismissed appellant’s suit on 3

alternate grounds, we focus our discussion on claim preclusion.

See Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008) (“In reviewing

a Rule 12(b)(6) dismissal, ‘we are not wedded to the [district]

court’s rationale and may affirm an order of dismissal on any basis

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was first brought.” Restatement (Second) of Judgments § 14, cmt.

a (1982); see also Blair v. Equifax Check Servs., Inc., 181 F.3d

832, 838 (7th Cir. 1999) (“When the cases proceed in parallel, the

first to reach judgment controls the other, through claim

preclusion (res judicata).”); Hogue v. Royse City, 939 F.2d 1249,

1255 (5th Cir. 1991) (“[B]ecause a later-filed claim can be

preclusive of an earlier-filed claim, simultaneous filing of

multiple claims in different forums based on the same cause of

action will not avoid the application of res judicata.”). 

While parallel litigation may force a court to “recognize

the claim- and issue-preclusive effects of a state-court judgment,

. . . federal jurisdiction over an action does not terminate

automatically on the entry of judgment in the state court.” Exxon

Mobil, 544 U.S. at 293 (internal quotation omitted). Application

of res judicata “should be addressed from the perspective of

fairness and efficient judicial administration since the doctrine

of claim preclusion is not applied rigidly where such interests

would not be served.” Tinkham v. Jenny Craig, Inc., 699 N.E.2d

1255, 1258 (Mass. App. Ct. 1998).

 With such concerns in mind, we proceed to consider the

applicability of claim preclusion to the present case. Following 3
made apparent from the record.’” (quoting McCloskey v. Mueller, 446

F.3d 262, 266 (1st Cir. 2006))). 

-9-

the revocations and forfeitures of his various licenses, appellant

chose to pursue relief in both state and federal court. Of course,

appellant could have pursued all of his claims in a single suit in

either forum. In his federal complaint and subsequent memoranda in

opposition to appellees’ motion to dismiss, appellant requested the

federal court exercise pendent jurisdiction over appellant’s state

claim (the review for reasonableness of the license revocations

pursuant to Mass. Gen. Laws ch. 140 § 131(f) and § 122). Appellant

also admitted at oral argument that he could have filed his § 1983

claim in state court. Accordingly, we employ Massachusetts’ three

part test to determine whether claim preclusion applies. See

McDonough, 452 F.3d at 16.

All three elements required for claim preclusion under

Massachusetts law are easily satisfied here. First, the identity

of the parties in the state and federal actions are the same. See

id. Second, the facts described in both the state and federal

complaints are identical, leaving no doubt that the two causes of

action “derive[] from the same transaction or series of connected

transactions.” Id. In other words, the only transaction at issue

in both the state and federal actions is Ryan’s revocation and

forfeiture of appellant’s licenses. Third, prior to the conclusion

of the federal proceeding, the state court issued a “final judgment
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on the merits” when it determined that Ryan reasonably revoked

appellant’s firearms licenses. Id.

Appellant appears to have recognized the potential

problem with pursuing simultaneous actions in state and federal

court, as he requested a TRO from the district court enjoining a

possible state-court judgment. Appellant similarly requested the

state court delay its decision until the conclusion of his federal

action. At the very least, appellant understood that a federal

court would not be able to reinstate his licenses, under state law,

if the state court first rendered its own decision.

In support of his TRO, appellant argued he was concerned

about bias because of the state court judge’s cordial reception of

Ryan at the initial state-court proceeding. Such a slight and

subjective concern does not warrant disregard for a prior, valid,

state-court judgment. We have already rejected the notion that

“‘distrust of state courts . . . would justify a limitation on the

preclusive effect of state judgments.’” Willhauck, v. Halpin, 953

F.2d 689, 705 (1st Cir. 1991) (quoting Migra, 465 U.S. at 84).

Instead, “notions of comity, the need to prevent vexatious

litigation, and a desire to conserve judicial resources” guide our

analysis. Migra, 465 U.S. at 84.

Appellant had a full and fair opportunity to litigate his

§ 1983 claim in state court. See Mulrain v. Bd. of Selectmen, 944

F.2d 23, 26 (1st Cir. 1991) (federal court dismissed case noting
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the plaintiff could have raised both his § 1983 and state law

claims in state court). Alternatively, appellant could have

pursued relief solely in federal court. See Mancuso v. Kinchla,

806 N.E.2d 427, 439 (Mass. App. Ct. 2004) (state court dismissed

case noting that both state and federal claims could have been

brought in federal court). Permitting appellant to litigate his

claims in federal court at this juncture would frustrate the

purposes of claim preclusion, which are to “protect ‘against the

expense and vexation attending multiple lawsuits, conserv[e]

judicial resources, and foste[r] reliance on judicial action by

minimizing the possibility of inconsistent decisions.’” Taylor v.

Sturgell, 128 S.Ct. 2161, 2171 (2008) (quoting Montana v. United

States, 440 U.S. 147, 153-54 (1979)). 

Because appellant voluntarily proceeded in both forums,

he is now subject to the consequences of claim preclusion. No

unfairness attends this result as “the splitting of [appellant’s]

claims was voluntary” and appellant was “fully aware of them.”

Hayes v. Town of Orleans, 660 N.E.2d 383, 387 (Mass. App. Ct.

1996). We hold, therefore, that appellant’s § 1983 claims against

Ryan and the Town of Arlington are barred by the doctrine of res

judicata.

B.

Appellant argues the district court improperly converted

his motion to dismiss into a motion for summary judgment without
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providing adequate notice and an opportunity to be heard. When

ruling on a Rule 12(b)(6) motion to dismiss, a district court is

generally limited to considering “facts and documents that are part

of or incorporated into the complaint.” Trans-Spec Truck Serv.,

Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008). These

limitations, however, are not absolute. A district court may also

consider “documents incorporated by reference in [the complaint],

matters of public record, and other matters susceptible to judicial

notice.” In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 20

(1st Cir. 2003). If the district court relies on other material

outside the complaint, not subject to the qualifications listed

above, it must convert a motion to dismiss into a motion for

summary judgment. Trans-Spec Truck Serv., 524 F.3d at 321. Before

such a conversion occurs, however, parties must have a “‘reasonable

opportunity to present all material made pertinent to such a

motion.’” Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228

F.3d 24, 31 (1st Cir. 2000) (quoting Fed. R. Civ. P. 12(b)).

Conversion is improper if it “would come as a ‘surprise’ or be

‘unfair’ to the party against whom judgment is rendered.” Id.

(citing Chaparro-Febus v. International Longshoreman Ass’n, Local

1575, 983 F.2d 325, 332 (1st Cir. 1992)).

Appellant argues the district court improperly considered

materials outside of the complaint in ruling on his motion to

dismiss. Appellant contends the district court should not have
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considered, absent a summary judgment hearing, (1) the ATF report

outlining appellant’s violations of law, and (2) appellant’s

rebuttal to the Rule 12(b)(6) motion. We need not consider whether

the district court properly referenced these documents, however,

because we have dismissed appellant’s claims on the basis of res

judicata. The only materials necessary to support this ruling are

the documents pertaining to the state-court judgment against

appellant.

A court may consider matters of public record in

resolving a Rule 12(b)(6) motion to dismiss. In re Colonial

Mortgage, 324 F.3d at 15-16. Matters of public record ordinarily

include “documents from prior state court adjudications.” Boateng

v. InterAmerican Univ., Inc., 210 F.3d 56, 60 (1st Cir. 2000).

Further, use of the state-court judgment is not a “surprise” or

otherwise “unfair.” Appellant was aware the federal magistrate

judge was considering the state-court documents and he was given an

opportunity to present material pertinent to the documents’ effect

on his federal action. Thus, consideration of the state-court

judgment in this case is entirely proper. 

For the foregoing reasons, the judgment of the district

court is affirmed.