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Martini v. Ferrin

*fn* submitted pasadena california: March 24, 1993.

HERMAN L. DI MARTINI, PLAINTIFF-APPELLANT,
v.
LYNN JAY FERRIN, SPECIAL AGENT, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-85-00001-LDG. Lloyd D. George, District Judge, Presiding

Before: Goodwin, Pregerson, and Reinhardt, Circuit Judges.

MEMORANDUM

Herman Louis Di Martini appeals from the district court's dismissal of his action against FBI agent Lynn Jay Ferrin ("Agent Ferrin") under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). We affirm.

BACKGROUND

Di Martini claims that Agent Ferrin attempted to suborn perjury from him in a law enforcement investigation of organized crime figures and that, when he refused, Agent Ferrin retaliated by directing Di Martini's employer to fire him from employment as a card dealer in the casino at the Sands Hotel. Di Martini brought this Bivens action seeking monetary damages and injunctive relief for alleged violations of his constitutional rights under the First, Fifth, Ninth and Tenth Amendments.

The district court dismissed Di Martini's claims except for his Fifth Amendment Due Process claim. Agent Ferrin then moved for summary judgment on the basis of qualified immunity. The district court denied the motion, and this court affirmed. See DiMartini v. Ferrin, 889 F.2d 922 (9th Cir. 1989), amended, 906 F.2d 465 (9th Cir. 1990), cert. denied, 111 S. Ct. 2796 (1991). Upon remand to the district court, however, this court clarified that Di Martini had to prove that he had a legitimate claim of entitlement to continued employment at the Sands Hotel under Nevada law in order to pursue his due process claims. See DiMartini, 906 F.2d 467 & n.4.

Along with his wife, DiMartini also filed an action in Nevada state court against the Sands Hotel, pursuing claims for breach of contract, breach of covenant of good faith and fair dealing, and wrongful discharge from employment in violation of the public policy of Nevada. The state court granted summary judgment to defendant, the Sands Hotel, after making the following findings of fact: (1) Di Martini's employment with the hotel was at-will under Nevada law (i.e. Di Martini had no employment contract), [see Red at addendum], and (2) there was no violation of public policy under Nevada law because there was no evidence of an unlawful discharge based on coercion to suborn perjury or retaliation for Di Martini's refusal to commit perjury. [See Red at addendum].

The district court in the instant case then granted Agent Ferrin's motion to dismiss. The district court reasoned that the state court's findings of fact precluded Di Martini's due process claims under the doctrine of collateral estoppel or "issue preclusion."

The district court's dismissal of Di Martini's claims is reviewed de novo, as a question of law. See Oscar v. University Students Co-Op Ass'n, 965 F.2d 783, 785 (9th Cir. 1992). Review of the district court's application of the doctrine of collateral estoppel, or "issue preclusion," is also reviewed as a question of law. Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir. 1992).

Discussion

A. Collateral Estoppel

Di Martini argues that the district court erred when it applied the doctrine of collateral estoppel. Di Martini suggests that the federal district court had to make an independent determination of the issue whether Di Martini had an entitlement under Nevada law. We reject Di Martini's arguments.

The Full Faith and Credit Act requires that federal courts must honor the prior judgments of state courts and give those judgments "the same full faith and credit . . . they have by law or usage in the courts of [the] State . . . from which they are taken." 28 U.S.C. § 1738. As the Supreme Court has explained: "It is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). Given this well-settled law, Di Martini's suggestion that the district court erred by not making a full and independent determination of the entitlement issue is clearly without merit. The relevant question, as the district court recognized, is whether the collateral estoppel requirements of the state of Nevada are met here. If so, the federal courts are bound by the preclusive effect caused by the prior determination of a given issue in state courts. See Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988).

Nevada law provides that collateral estoppel, or "issue preclusion," forecloses the relitigation of any issue where (1) the issue decided in the prior case is identical with the issue in the subsequent case; (2) there was a final judgment on the merits in the prior case; and (3) the party against whom estoppel is asserted was a party, or in privity with a party, to the prior proceeding. See Horvath v. Gladstone, 637 P.2d 531, 533 (Nev. 1981); Paradise Palms Community Ass'n v. ...


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