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

### MAR 8 2000 

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

F. MICHAEL CREUSERE,

Plaintiff-Appellant,

v. SUSANNA MURPHY, individually and in her official capacity as Superintendent of Tularosa Municipal Schools, Tularosa, NM; GARNETT E. TWYMAN, individually and in his official capacity as Superintendent of Henry County Public Schools, New Castle, KY; MICHAEL DORAME, individually and in his positions of Assistant Superintendent, Acting Superintendent, and Superintendent of Tularosa Municipal Schools, Tularosa, NM; DONALD MENDONCA, individually and in his official positions of chairman and member of the Tularosa Municipal School Board, Tularosa, NM; MANUEL RODRIGUES, individually and in his official position as member of the Tularosa Municipal School Board, Tularosa, NM; GODFREY CORDOVA, individually, and in his official position as member of the Tularosa Municipal School Board, Tularosa, NM; DAVE SHEPPARD, individually and in his official position as member of the Tularosa Municipal School Board, Tularosa, NM; REGINALD TORTILLA, No. 99-2181 (D.C. No. CIV-97-98-LH/DJS)

(D. N.M.)-2-

individually and in his official position as member of the Tularosa Municipal School Board, Tularosa, NM; ROBERT SAINZ, individually and in his official position as member of the Tularosa Municipal School Board, Tularosa, NM; BOBBY MONTOYA, individually and in his official position as member of the Tularosa Municipal School Board, Tularosa NM; TULAROSA MUNICIPAL BOARD OF EDUCATION; RONALD GEISHEIMER, individually and in his official capacities as Principal and the Administrative Team at Tularosa High School, Tularosa, NM; ROBERT CERNY, individually and in his official capacities as Assistant Principal and the Administrative Team at Tularosa High School, Tularosa, NM; PAM MILLER, individually and in her official capacities as Athletic Director and the Administrative Team at Tularosa High School, Tularosa, NM; HENRY COUNTY BOARD OF EDUCATION, of New Castle, Henry County, KY,

Defendants-Appellees, and JOHN MURPHY, individually and as a co-conspirator of Susanna Murphy in her official capacity of Superintendent of Tularosa Municipal Schools, Tularosa, NM and as a co-conspirator of Garnett E.* This order and judgment is not binding precedent, e xcept under the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 10th Cir. R. 36.3. -3- Twyman in his official capacity of Superintendent of Henry County Public Schools, New Castle, KY; JOHN DOES, all unnamed persons, individually and in their official capacity as members of the Tularosa Municipal School Board, Tularosa, NM from 1994 to present,

Defendants.

ORDER AND JUDGMENT *

Before TACHA , ANDERSON , and LUCERO , Circuit Judges.

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). T he case is therefore ordered submitted without oral argument. Plaintiff F. Michael Creusere appeals from an orderof the district court granting summary judgment to defendants. We affirm

. Mr. Creusere was employed as a science teacher in the Tularosa, New Mexico School District from 1986 to 1994. Mr. Creu sere offers two reasons as1 Mr. Creusere’s appeal in the Kentucky action was di smissed as the notice

of appeal was untimely. See Creusere v. Twyman , No. 98-5783 (6th Cir. Dec. 13, 1999). -4- to why his employment with the school district ende d. He states he informed the Board of Education in January 1994, that he would n ot return at the expiration of his contract due to the negative, anti-academic atm osphere. He also states that his contract was not renewed due to his expressed opini ons about matters of public concern including the funding of athletic programs at the expense of academic programs thus forcing students to chose between ath letics and academics. Mr. Creusere was then hired by the Henry County, Ke ntucky School District as a science teacher and coach for the 199 4-95 school year. He was terminated by Henry County at the end of that school year for insubordination, conduct unbecoming a teacher, inefficiency, incompe tency and neglect of duty. Mr. Creusere commenced an action in the federal dis trict court in the Eastern District of Kentucky against many of the same defendants as present here. The defendants are employed in various capacities w ith either the Tularosa or Henry County school districts. He brought claims u nder 42 U.S.C. §§ 1983, 1985, and the First, Fifth, Ninth, and Fourteenth Amendme nts. The Kentucky Eastern District court dismissed the action against the NewMexico defendants for failure to state a claim. The court granted the Kentucky d efendants’ motion for summary judgment. 1-5-

Mr. Creusere then commenced this action. Here, Mr. Creusere raises many of the same issues he raised in Kentucky. He also names many of the same defendants. The district court granted the defenda nts’ motions for summary judgment holding that his claims against the New Me xico defendants were barred by res judicata and collateral estoppel . The court granted the Kentucky defendants motion for summary judgment on the basis that it lacked personal jurisdiction over those defendants. On appeal, Mr. Creusere argues that a conspiracy ex isted and the district court should have granted his default motion agains t defendant John Murphy. Mr. Creusere asserts that res judicata and collateral estoppel do not apply against the New Mexico defendants because his issues could not be heard in a single forum and he has valid claims against both the New Mexico and Kentucky defendants . Mr. Creusere argues the district court’s orders were confusing as it did not reduce them to writing. “We review the entry of summary judgment de novo, d rawing all reasonable inferences in favor of the nonmovants.” Hulsey v. Kmart, Inc. , 43 F.3d 555, 557 (10th Cir. 1994). The moving party must show there is no genuine issue as to any material fact and it is ent itled to judgment as a matter of law. See id. The nonmovant must establish, at a minimum, an in ference of the presence of each element essential to the case. Se e id.2 Although the Kentucky district court dismissed the action against the New

Mexico defendants, “[a] ruling that a party has fai led to state a claim on which relief may be granted is a decision on the merits with full res judicata effect.” See State Farm Mut. Auto. Ins. Co. v. Dyer , 19 F.3d 514, 518 n.8 (10th Cir. 1994) (quotation omitted). -6- The district court granted summary judgment to the New Mexico defendants on the basis of res judicata and collateral estoppel . The court determined that Mr. Creusere had brought the same c laims against the same parties in Kentucky. 2Mr. Creusere argues that the Kentucky district co urt did not have jurisdiction over the New Mexico defendant s because service was never properly effected. A defect in the district court’s jurisdiction over a party is a personal defense which may be asserted or waived by a party. Objections to personal jurisdiction and service of process must b e asserted in the answer or in a pre-answer motion. If a party files a pre-answer motion and fails to assert the defenses of lack of personal jurisdiction or insufficiency of service, he waives these defens es. FDIC v. Oaklawn Apartments , 959 F.2d 170, 174-75 (10th Cir. 1992) (quotation and citations omitted). The New Mexico defendants waived any defense relati ng to service of process by failing to assert it. Therefore, the Ke ntucky district court properly exercised jurisdiction over them. Collateral estoppel precludes the relitigation of a n issue that has been decided in a previous action. See Murdock v. Ute Indian Tribe of Uintah &-7-

Ouray Reservation , 975 F.2d 683, 687 (10th Cir. 1992). Res judicatabars the relitigation of claims that arise from the same cause of action and that were or could have been advanced in a prior proceeding. See Nwosun v. General Mills Restaurants, Inc., 124 F.3d 1255, 1257 (10th Cir. 1997). We agree wi th the district court that the claims Mr. Creusere raises here are barred by these two doctrines. See Murdock , 975 F.2d at 687-90 (collateral estoppel) (identif ying elements which must be satisfied); Nwosun , 124 F.3d at 1257 (res judicata) (same). We disagree with Mr. Creusere that he coul d not have brought all his claims in the same action. The district court granted summary judgment for the Kentucky defendants because it did not have subject matter jurisdictionover them since they did not have the requisite minimum contacts with New Mexico . The record shows that the only contacts the Kentucky defendants had with New Mexico were several phone calls by defendant Twyman to Tularosa school officials requesting confirmation of Mr. Creusere’s employment informati on. Twyman received several faxes in response. Mr. Creusere has not sh own that the Kentucky defendants engaged in any actions which would permi t the New Mexico district court to exercise personal jurisdiction over them pursuant to N.M. Stat. Ann. § 38-1-16(A).-8-

Mr. Creusere argues that the district court should have granted his motion for default against defendant John Murphy as a cons pirator in this action. Mr. Murphy is not a named appellee in this appeal and we do not address this issue as Mr. Murphy had no notice that he was subje ct to the jurisdiction of this court on appeal and had no opportunity file a brief. See United States v. Morales , 108 F.3d 1213, 1223 (10th Cir. 1997). However, we note that Mr. Creusere has failed to meet the requirements for showing a consp iracy. The bald conclusory statement in his complaint will not suffice. See Brown v. Zavaras , 63 F.3d 967, 972 (10th Cir. 1995). Our review shows that the district court’s orders w ere clear. If Mr. Creusere were confused, he should have requeste d clarification from the court. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED for substantially the reason s set forth in its order of May 20, 1999. The mandate shall issue forthwith.

Entered for the Court

Stephen H. Anderson Circuit Judge