Jay Josephs v. Gallatin County

MEMORANDUM ** Jay Josephs (“Josephs”) appeals the district court’s grant of summary judgment against him and in favor of Gregory Bishop in Josephs’ action arising out of the death of his former wife, Kathryn Lei-brock-Josephs. 1 See 42 U.S.C. § 1983. We reverse. The district court determined that res judicata (claim preclusion) 2 applied to the action against Bishop because Josephs had previously brought an action against Galla-tin County (1) which arose out of the same claim, (2) on which a final judgment on the merits had resulted and, (3) as to which the identical parties to this action, or their privies, were involved. See Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir.2005); see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1078 (9th Cir.2003) (holding that where the same parties, or their privies, are involved, the issue is whether the claim “could have been asserted.”) Regardless of the other elements, 3 Bishop cannot fulfill the requirements of the third element. Bishop was not a party to the first action. Moreover, he was not in *673 privity with the other defendants in that action. Gallatin County obtained judgment in that action on the basis that it was not hable, despite any actions by its employees; it did not actually defend the actions of its employees. See Waggy v. Spokane County Wash., 594 F.3d 707, 713 (9th Cir.2010) (a public entity is only liable if harm is caused by its own policies or customs). Thus, while an employer-employee relationship may be sufficient to establish privity, 4 that is only true when there is adequate representation of the employee’s interests, 5 and that plainly did not occur here. Similarly, while an indem-nitor-indemnitee relationship 6 can provide privity, 7 it only does so when the indemnitor is sued as the indemnitor of the indem-nitee in the prior litigation, and not for his own actions, 8 and that did not occur here. In fine, privity is lacking. Thus, claim preclusion does not apply, 9 and we must reverse the grant of summary judgment on the federal claim. Moreover, we “must reverse the decision to dismiss” the state claims. See Idaho v. Howmet Turbine Component Co., 814 F.2d 1376, 1380 (9th Cir.1987). REVERSED and REMANDED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. [1] Josephs brought this action on behalf of his former wife’s estate and on behalf of their minor children. [2] Although the district court referred to issue preclusion, it is plain that the court applied claim preclusion and that its reference to issue preclusion was merely a mislabeling. Cf. Collins v. Comm’r, 857 F.2d 1383, 1385-86 (9th Cir.1988) (indicating that mislabeling does not change the analysis). [3] Josephs, by the way, agrees that the prior judgment was final. [4] See Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir.1984) (per curiam); see also Scott v. Rosenberg, 702 F.2d 1263, 1266 (9th Cir.1983) (prior decision involving employees of same entity). [5] See Adams v. Cal. Dep't of Health Servs., 487 F.3d 684, 691-92 (9th Cir.2007); Pedrina v. Chun, 97 F.3d 1296, 1301-02 (9th Cir.1996). [6] See Mont.Code Ann. § 2-9-305. [7] FTC v. Garvey, 383 F.3d 891, 898 (9th Cir.2004). [8] Id. [9] Josephs also argues about issue preclusion, but does so for the first time in his reply brief. We will not consider that question. See Katie A. v. L.A. County, 481 F.3d 1150, 1162 (9th Cir.2007); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999).