Appendix — Kustina v. City of Seattle

83-1548 [™PrT'ss

MAR 15 1984

IN THE ,

CLERK

UCTOBER TEM, 1983 —

FRANK KUSTINA, Appellant,

Ve

THE CITY OF SEATTLE, and THE HISTIC

SEATTLE PRESERVATION and DEVELOPMENT

AUTHC.ITY, Appellees,

APPENDIX TO PETITION FO. A “RIT OF

C&:TICRARI T:) THE UNITE? STATES CL.CUIT

COURT OF APPEALS FOR THE NINTH CIRCUIT

\See page A-l of PETITION for listing

of Opinions of the Courts Below)

Frank Kustina

5201 Ballard Ave N. ji,

Seattle, “a 98107

206-789-2155

Appellant Pro se

A-|

APPENDIX

I. Opinions of the Courts Below

King Cy Superior Court dtd June 14, 1978

“— of Appeals of the State of Wa dtd Apr 9,

1979

Fed Dist Ct Order dtd Aug 11, 1980

Fed Dist Ct Order dtd June 10, 1981

Fed Dist Ct Order dtd Dec 10, 1981

Fed Dist Ct Order dtd Oct 1, 1982

Fed Dist Ct Order dtd Nov 24, 1982

a Fed Ct of Appeals Order dtd Dec 14,

|

9th Cir Fed Ct of Appeals Order dtd Feb 2, 1984

IOMNMON w>

I]. Other Appended Materials

A. — State Complaint

B. Federal Complaint

od Brief of Appellant before the Wa State Appeals

Court due to the cost of reproduction | copy is

provided the Clerk and attached to original

appendix only

Civil Docket Entry #19 Motion for Relief from

Order

E. Civil Docket Entry #7 Exhibit A att'd to Affidavit

of John Turnbull—MINUTES of Sept 14th

meeting

F, Seattle Ordinance 105462

G. WaAGO 1971 No. 33 page 31

H. ByLaws and Procedures for the Ballard Avenue

Landmarks Board

I. Washington Practice Rules for Superior Court

CR8(a) and sec. 5101

- Washington Practice Rules for Superior Court

CR 56

6A C.J.S. 422, 428

6 U.S.C. 470 Nat'l Historic Preservation Act

§ U.S.C. 1254

8 U.S.C. 1343

8 U.S.C sections 1911, 1913, & 1914

2 U.S.C. 1985(3)

— of Washington Art. 1, sections 2,3,4,

OMOZErR

hRmwmwhrvenre——

APPELLANT DOES NOT HAVE FUNDS TO COM-

MERCIALLY PRINT THE APPENDIX ITEMS. THEY

CAN BE PROVIDED ON 8'2 x 11 PAPER AT NO ADDI-

TIONAL COST.

IN QUESTION IS THE COST TO SPEAK UNDER THE

FIRST AMENDMENT.

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON FQR KING COUNTY

FRANK KUSTINA,

Plaintiff,

VSe

HISTORIC SEATTLE PRESERVATION AND

DEVELOPMENT AUTHORITY, a public corpora-

tion; THE CITY OF SEATTLE, a municipal

corporation; PAUL SCHELL, JANES HORNELL,

ALFRED PETTY, each a former or present

municipal official; GEORGE E. BENSON,

TIM HILL, PAUL KRAABEL, PHYLLIS LAMPHERE,

WAYNE D. LARKIN, JOHN R. MILLER, RANDY

REVELLE, SAM SMITH, JEANETTE '"ILLIAMS,

each a former or present municipal

official; ‘’ES UHLMAN, a municipal

official,

Defendants.

NO. 833 228

JUDGMENT OF DISMISSAL

UNDER CR 12(b) and CR 56(b)

This matter having come on regularly

for hearing before the undersigned Judge

of the above-entitled court upon the

motions of defendants for judgment

dismissing plaintiff's complaint with

prejudice pursuant to Cr 12(b) and

CR 56(b);: the court having reviewed

the pleadings, motions, affidavits,

memoranda and other documents on file

herein and having heard argument from

counsel and from plaintiff, and it

appearing to the court that plaintiff's

complaint fails to set forth any claim

upon which relief could be granted,

that there is no genuine issue of

material fact and that defendants'

motions should be granted for the reason

that plaintiff's action wes brought

beyond the 270 day time required by law,

and is at any rate barred by principles

of estoppel and laches, for the reason

that plaintiff has not alleged,

identified or sustained any legal injury,

is not aggrieved and lacks standing, and

for the reason that the uncontroverted

affidavits on file herein establish that

plaintiff's claims predicated upon Sea-

ttle Ordinance 105462 are without merit

as a matter of law and are at any rate

moot; Now, Therefore,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that plaintiff's complaint is

__ dismissed with prejudice and with costs

to defendants.

DONE IN OPEN COURT this l4th

(handwritten) day of June, 1978.

/s/ Jack Scholfield

JUOGE

Presented by:

/s/ Charles . Brown

CHARLES D. BRON

Of counsel for Defencants

Except Historic Seattle

Preservation & Development Authority

APPROVED FOR ENTRY

/s/ John J. vystel

JOHN J. LYSTEL

Attorney for Historic Seattle Preserva-

tion and Development Authority

APPROVED AS TU FOR™, NOTICE OF

PRESENTATION ‘’AIVED:

/s/ Feenk Kustina

FRANK KUSTINM, Plaintiff

IN THE COURT OF APPEALS OF THE STATE

OF WASHINGTON

FRANK KUSTINA,

Appellant,

Ve

HISTCRIC SEATTLE PRESERVATION AND

DEVELOPMENT AUTHORITY, a public corpora-

tion; THE CITY O SEATTLE, a municipal

corporation; PAUL SCHELL, JAMES HORNELL,

ALFRED PETTY, each a former or present

municipal official; GEORGE £&. BENSON,

TIM HILL, PAUL KRAABEL, PHYLLIS

LAMPHERE, AYNE D. LARKIN, JOHN R.

MILLER, RANDY REVELLE, SAM SMITH,

JEANETTE ‘"1LLIAMS, each a former or

present municipal official; ‘JES UHLMAN,

a municipal official,

Respondents.

NO. 6698-1

DIVISION ONE Filed: Apr 9, 1979

DORE, FRED, J. --Plaintiff alleged

that he was the owner of property in

Ballard, and he brought this action

against the Ballard Avenue Landmark

District demanding the removal of two

small historic residential houses that

Historic Seattle Preservation and

Development Authority (Historic Seattle)

had acouired, renovated and moved to

their present location in Ballard.

Along with Historic Seattle, plaintiff's

complaint named as defendants the City

of Seattle, the former director of

Seattle's Department of Community

Development, the acting director of that

depertment, the Superintendent of

Buildings for the City of Seattle, all

members of the Seattle City Council, and

Seattle's former mayor. The court

granted the defendants' motion for

summary judgment of dismissal. Plainti£

appeals.

ISSUES

l. Did the trial court err in

holding that plaintiff had no standing

to challenge the administrative actions

of Historic Seattle Preservation and

Development Authority?

2. Did the court err in holding

that pleintiff's petition for writ of

certiorari was untimely?

3. Did the trial court err in

holding that plaintiff's complaint

coupled with the uncontroverted

affidavits before the court, failed to

set forth a viable claim upon which

relief could be granted?

STATEMENT OF FACTS

Historic Seattle is a public

authority chartered by the City of

Seattle, pursuant to RC! 35.21.725 and

Seattle Ordinance 103387, Historic

Seattle's charter states that the public

authority's purpose is to preserve amd

enhance the historic heritage of the

City of Seattle for the mutual pride and

enjoyment of Seattle's citizens and for

the creation of a more livable environ-

ment within the historic areas of the

city.

On October 15, 1976, the Ballard

Avenue Landmark District (Seattle

Ordinence 105462) was created to preser-

ve, protect, enhance, and perpetuate

those elements of the district's

cultural, social, economic, architect-

ural, historic or other heritage. The

ordinance prohibited certain changes in

the buildings, structures and other

visible property therein without a

certificate of approval. The ordinance

further established a board consisting

of 5-7 members to be elected, which

would administer and enforce the

ordinance. Upon application for a

certificate of approval, the ordinance

provided that the board act to review

the application and grant or deny the

same within 30 days. If the board

failed to act within the 30-day Limit,

the application would be deemed approved

and the director of the Department of

Community Development would thereafter

issue a certificate of approval.

In May of 1976, Historic Seattle

acquired two of Seattle's oldest

residential houses, the "Pioneer Houses."

The Pioneer Houses were in danger of

being demolished as the result cf

commerciel development in Seattle's

International District, and Historic

Seattle acquired the houses for the

purpose of relocating and renovating

them in order to preserve an important

part of Seattle's heritage.

Earl Layman of Historic Seattle

stated in his affidavit in reference to

the two Pioneer Houses as follows:

The (pioneer) houses ere among the

oldest structures still existing

in the city. Modest single-family

structures of this type once

existed in considerable numbers

aleng Bellerd Avenue in whet is nov

the Lendmark fistrict .. . (The

pioneer houses) preserve and enhance

the District's cultural, historic

and architectural heritage by

providing a unicue example of a

type of structure that cnce was

common on Bellard Avenue.

Historic Seattle thereafter sought

to relocate the houses to the Ballard

Avenue Landmark District, created in

April of 1976, pursuant to Seattle City

Ordinence 105462. ™ “May 76, 1976,

pursuant to Ordinance 105462, Historic

Seettle epnlied for e certificate of

@epprovel of Historic Seattle's proposal

to ~elocete the Pioneer “ovses to the

Ballard Avenue Landmark istrict. At

thet time the Ballerc Avenue Lendmark

istrict 3oerd createc by Ordinance

105462 had not yet been elected. That

borrits members were not elected tntil

July of 1976.

Section 5(1) of Ordinence 105462

requires thet the director of Seattle's

Tepertment of Community ‘evelopment

unilaterally act upon an application

for a certificate of anproval if the

Ballare Avenue Landmerk District Board

does not act vunon thet application

within 30 davs from the date the

application is submitted. Because the

Bellarc Avenue Lanimerk Tistrict Board

id not ect, and could not heave ectei,

upon Historic Seattle's application for

e certificate of epprovel within 30 days

from Historic Seattle's submission of

thet application, the director of

Seattle's Tepertment of Community

“evelopment, acting under the require-

ments of the ordinance, issued Historic

Seattle a certificate of approval on

June 3, 1976, In August of 1976, the

City of Seattle issued a building permit

to Historic Seattle pvrsuent to Historic

Seattle's July 21, 1976 application for

such a building permit to allow the

relocation of the Pioneer Houses to the

Ballard Avenue Landmark District.

Historic Seattle moved the Pioneer

Houses to the Ballard Avenue Landmark

District on September 27, 1976,

Although Historic Seattle's plan to

relocate the Pioneer Kouses had been

amply publicized in various Ballard

publications prior to September 27, 1976,

and even though the plaintiff was well

aware of the relocation plans ‘ell before

the relocation of the Pioneer Houses, he

took no action whetsoever to contest

Historic Seattle's relocation of the

houses until August of 1977, almost one

year after the Pioneer Houses had

actually been reloceted in Ballard. As

soon es the Ballard Avenue Landmerk

District Board head elected and appointed

the various members of their board, the

composition of which was completed after

Historic Seattle had received its

building permit to relocate the Pioneer

Houses, the boerd endorsed the reloca-

tion of the houses before they were

actually movei to their present Ballerd

site.

Plaintiff admits that he learned of

Historic Seattle's plan to relocate the

Pioneer Houses to the Ballard Avenue

Landmark Listrict on June 14, 1976, and

he also attended a public hearing on

such proposal on July 27, 1976, which

hearing was held to afford Ballard

residents an Oprortunity to comment upon

Historic Seattle's plan to relocate the

Pioneer Houses,

DECISION

ISSUE 1: Plaintiff Lacked standing to

bring this action.

Since Ordinance 105462 does not

authorize appellant's present action,

such action is necessarily one pursuant

to RC’ 7,16.040 for a writ of certiorari

to review both the issuance of a

certificate of approval by the director

of Seattle's Department of Community

Development and the issuence of a

building permit by Seattle's Superin-

tendent cf Buildings.

However, an action for ea writ of

certiorari may only be maintained by one

claiming to be "aggrieved" by adminis-

trative or judicial action. Jones v.

Jones, 68 "'n, 24 413, 415, 413 P2d 338

(1966). The courts heave consistently

held that in order to be "aggrievei" for

purposes of standing to challenge admin-

istrative actions, e plaintiff “must

allege and prove that he has suffered

some special damages not common to other

property owners similarly situated,"

See Unger v. Forest Homes T.P., 237 Ne’.

2d 582, 584 (Mich. App. 1975), where the

court held that plaintiff lacked standing

to chellenge an amendment to a munici-

pality's zoning ordinance because the

pleintiff had failed to establish that

he had "suffered a special damege by

reason of the change in the use or

zoning--different from that suffered by

the general public."' See also ‘hitney

Theater Co. v. Zoning Board of Appeals,

189 A. 2d 396, 399 (Conn. 1963), where

the court held thet a plaintiff in an

ection to review the decision of a

municipal zoning board "hed the burden

of proving thet it was aggrieved" which

"required the plaintiff to establish

that it was specially end injuriously

affected in its property rights or other

legal rights."

In the present case, appellant has

alleged no such special damage resulting

to him from Seattle's actions that

permitted Historic Seattle to relocate

the Pioneer Houses from Seattle's

International Listrict to Ballard,

Appellent hes alleged only that he is the

owner of property in Ballard, end such

an allegation is insufficient to afford

appellant standing.

Consequently the Lower court

properly held that plaintiff had no

standing to challenge the certificate of

approval and building permit issued to

Historic Seattle for the relocation of

the Pioneer Houses.

ISSUE 2: Appeel untimely.

The trial court's ruling must be

affirmed for the additionel reason that

the plaintiff's appeal was not timely.

Petitions for writs of certiorari to

review administrative actions must be

filed within 20 days from the contested

administrative action just as appeals to

Superior Court from decisions of courts

of limited jurisdiction must be filed

within 20 davs.

In the present case, no statute or

ordinance gave appellant the right to

challenge the administrative actions at

issue here. Appellant's complaint is

necessarily one seeking e writ of

certiorari to review administrative

actions. Because appellant's complaint

was brought one year from the edminis-

trative actions of hich he complains,

and not within 20 days, the lower court

properly dismissed that complaint

pursuant to Vance v. Seattle, 18 ‘n. App.

418, 569 P, 24 1194 (1977). Moreover,

even if Ordinance 1905462 had authorizel

appellant's appesl, which it does not,

that ordinance requires that such appeals

be taken within 20 days. Thus, whether

appellant's action is one for a writ of

certiorari or one taken pursuant to

Seattle City Ordinence 105462, the lower

court pruperly ruled that appellant's

action was time-barred.

ISSUE 3: Plaintiff's cause of action

moot.

Even assuming the validity of

plaintiff's cleim, such clains are

entirely moot. It is undisputed thet

once the boerd's elections vere held

end the board became operational, anc

reviewed the project in cuestion, they

unenimously endorsed it am approved the

issuance of the certificate of epproval.

Such ratification cured any defect in

the prior decision. Owings v. Olympia,

88 ‘ash. 289, 152 P. 1019(1915).

Affirmed.

/s/ Jore, Fred

= CONCUR:

/s/ Farris, J. /s/ Swanson, H

UNITED STATES DISTRICT CCURT

FESTERN DISTRICT OF ‘VASHINGTCN

FRANK KUSTINA,

Plaintifé,

VS.

THE CITY OF SEATTLE anc THE HISTRIC

SEATTLE PRESERVATION BOARD AND

DEVELUPMENT AUTHRITY,

Lefercants.

No. C80-529V

GDER ON MOTION TO DISMISS

Having considered the motion of

defendants to dismiss, together with the

memorenda and affidavits submitted by

counsel, the Court now finds and rules

as follovs:

1. Although styled a motion to

dismiss for failure to state a claim

upon which relief can be granted,

defendants’ motion is ectually one for

summary judgment of dismissal. Both

parties have treated the motion as one

for summary judgment by submitting

affidavits and documents outside the

record in support of their positions,

The Court will therefore treat the mot-

ion as being one for summery judgment.

2. ‘ith respect to plaintiff's

first eleven causes of action, it is

clear thet prior state coirt proceedings

ber the assertion of those cleims in

this Court. Title 28 U.S.C. 1738;

Scocegin v. Sehrunk, 522 F. 25 436 (Sth

Sir. 1975), cert. ideniec, 423 U.s. 1066

(1976); Dennun +". Boerc of Governors,

413 F. Supp. 1274 (:.NeJe 1976); Seattle-

First Netionel Bank v. Kawachi, Sl ‘n.

2:. 223, 588 P. 2d 725(1978). Society

hes @ substentiel interest in the

finelitv of Litisetion. Once a metter

hes been litigated, it is ‘vasteful of

both public end private resources to

re-litigate the seme matter. If

plaintiff desired to have a federal

court rule on his claims, he should have

sought certiorari before the United

States Supreme Court. In eny event,

ne Court hes revie ved the pricr ruiings

ti

of the stete courts -nd is in egreement

crith those culings.

3. None of the remrining cleins

implicate the Historic Seattle Preserv-

ation end Uevelopment Authority in eny

wey. To the extent thet those clains

‘son ‘hich relief can be gvantec,.

Accoriingly, the motion of cefenc-

ents is GAATTES> in pert ena GENTS” in

pert. The Historic Seattle Preservetion

Boarc eni Levelopment Authority is

dismissec es a srrty cefendant. The

first eleven claims ageinst ceferdant

“ity of Seattle ere “ISiIsSe> ITH

v..CIU ICS.

The Clerk of this Covrt is

instructed to send uncertifiec copies

of this orcer to all counsel of record.

The Clerk shell prepare a judsment

of dismissal with prejudice with respect

to cefencant Authcrity.

DATES: this llth (hencwritten) dey

of August, 198%.

/s/ Donelc 3. Voorhees

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SEATTLE FSSTRVATION BOARI A:T

EVELO2: INT AUTH-EITY,

~efendants.

NO. C80-529C

8

—,

. —_

as

Having consicere’ plaintiff's motion

for reconsiceraticn of the Court's denial

of aleintiff's motion to vacate and set

asice this Court's orcer of August 11,

1980, together with the memorande filed

by counsel, the Court finds and reeffirns

het good céuse has not been shown es to

why that order should be vaceted anc set

asice.

Accorcintly, pleintiff's motion is

The Clerk of this Court is

instructec to send uncertified copies

of this order to the nleintiff and to

Bi . fee hen ; : :

ATE this 10 (thanu:-ritten) dav

ee al

“ ie

of Tecember, 1981,

/s/_.onald 5. Vcornees

——_—- A

Pa ae) ~81tiei BO bw bevb wes

IT a

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meats’

AT

STATES DI

mee Fy aes 10-4

STATTLE

i heoal

Sif.ICT COURT

OF ASHINGTON

FPALK KUSTINA,

Pleintiff,

VSe

THs CITY OF SEATTLE,

.efencant.

NO. C80-5°CS

GO £8. TZ2NVING PLAICTIFF'S OTION

FO) (EC°NSIDERATIAOS Al) GUASTINe

| BPE CAST *S NOTION FOR SU ANY

JIG) SN

TNESE MATTTNS come on for considera-

ticn on th

xustina fo

Court's ea

first tvel

cefendant

juctnent.

recuestec

now finds

l.

p

reconsiceraticn is DENIF”

firther notes thrt

e motion of pleintiff Frank

bs

r reconsideration of the

Orders cismissinz his

1 te"

o boo ts

£

~

_

ae

ve Clains anc the motion o

City of Seattle for summery

Oral ergument was not

by either party. The Court

and rules as follows:

leintiff's motion for

mA

~*e

e Court

after considering the

facts in the Light most favoreble to the

history of the ‘iocel Litter Control enc

fecveling act, it is unlikely munici-

pelities vere intenced to be sued under

the stetute. Second, since the City is

not the property owner within the

relevant erea, it hes not offencec the

stattte even if it is applicable.

Finelly, even if the stetute was

violatec, the duty was not one owec to

the plaintiff so as to warrant suit.

See Baerlein v. State of ‘'ashington,

an -- Te

92 "m 26 229 (1979).

3. Plaintiff's fourteenth claim is

similarly without support. Considering

the precatory Lenguage of the Adams

Neighbowhooc Improvement Plen end the

totel lack of eny facts to suprort a

conclusion thet the City actec arbitr-

avily end carriciously in not encoura-

aging perhing on city rights-of-.ay,

defencant is entitlec to judgment. See

sarrie v. Kitsen County, 93 n 2d 843

(1980).

4, Claim fifteen must be dismissed

for two reasons: First, to the extent it

seel:s to challense the City's allegec

noncompLlionce ‘ith Wdinrnce 105462, it

is res jucicate. Second, to the extent

plaintiff claims thet his on certificrte

of eppreval vas improperly henclec,

plaintiff has failec to exheust the

administrative remedies created by the

orcinence. ‘No evicence hes been

proviced which woul¢ warrant an

exception to the exheustion recuirement.

For the above statec reasons,

olaintiff's motion for reconsiceration

is DENIT end defendant's motion for

summary jucqment is GRALTEr.

“ne Clerk of this Court is

instructed to enter Jucament eccordingly

anc to send uncertifiec copies of this

Order anc of the Jucement to pleintift,

eppecring sro se herein, nd to counsel

CATS this Lstthancrritten) day of

/s/ John C. Couzhenour

John vu. Covgnenour

United States Listrict Jucge

UlITS STATES DISTRICT COUNT

OL POS “DISTRICT OF “ASHI NGTO:

Av STATT ‘

“AS os

TLE CITY UF SEATTLE,

Trefendcant.e

TEST “MATTERS come on for consider-

ation on the motions of plaintiff Trani

‘ustina for leave to amenc his complal

and ale edditionrl perties anc for

reconsiderrtion of the Court's (rcer

ienving his moticn for reconsiceration

end granting cefencent's motion for

summary juccment. The Court cannot

consicer these notions. %m Xxctober 26,

1982, nlrintiff filec his notice of

apneal. mee + notice of apperl is

filec, jurisdiction is vestec in the

Court of ‘pperls, snc the istrict

Court hes no pover to modify its

jucaments. See ‘atter of Visicneering

Construction, 661 F. 2i 119, 12! 1.5

(O27, Of-, 1981); Petrol Stoss viorthrvest

v, Continental 11 Co., 647 F.2: 1905,

———,

“se motions ere therefore STRIVIC.:

as tne Co:rt is vithout pover to

« . PF and a a .

Mcer te DL*intisz aspeering pro se

eee |

herein, «ni to counsel for the <efencant.

“ATS this 24th U.cne:ritten) ca’

** _ - 2 ‘

£ Nevember, LId2-6

Pf aad - - e ‘

s/jJonn S. Covznenocur

ya

- | al “~ %

Jonn ©. Coushenour

e . ~ - : *. © 5a

Mite. St7tes : istrict Jucce

ooo mars an -” a s — -~

a are SLAF 2 cou. = aA PEALS

— oe _ . —-s - a =

Fo. + Fou iI 4. Udder ~-

qtr ee

a tare st wos LiovrAy

=leé i =—2@ 1 1

‘ antic t-Ap-ellant,

VSe

~~~ —_— -——. ewe

‘

Sam « - > er, ae ore

Tefencant-Appellee.

Ne. 82-3603

‘a a he

"The penel hes conclide< th-t the issues

sresentec by *his enperl co not meet th

strndarcs set > Tule 21 of the Rules of

this Court for <ispositicn by written

orinion. aAccorcingly. it is orcerec

thet <is-ccsition be by meroranctun,

forgoing rublication in the Feceral

epo-ter, -ne thet this memorencum mav

-_

. . a *

not ve cite to o- by the courts of this

.. =

or the Unitec ste tes “istrict

r the “estern tistrict of

on (Seettle) fionore ble

Couthenour, Pre sidin

Arguec enc Submitted November 9, 1983

~ ’

ane V=eT7Ten?

sefore: SNSE", NELSO.i, anc TSINHANT,

Circuit Jucces

Pleintiff£ Fran’: Kustinz filed an

ection eageinst the City of Seattle under

42 U.S.c. 1983 (Supp. 7 1981) enc under

s

"lashington stete law. The <istrict

court held thet the coctrine of res

jucicata precludec Litigetion of twelve

of the fifteen cleims. In e-citioen, the

Cistrict court cismissec another cause

of action for failure to state e claim

unon which relief can be grantec anc

Grantec summary jucgment for the City of

Seattle on the merits of tro state law

Claims. ‘e affirm in nerrt enc reverse

in vert,

c» & JU TGAZTA

‘hen a section 1983 ection is

besec on the seme «rong that was the

subject of 2 stste court action bet-’een

the srcme perties anc the preclusion

rules of the state in cuestion would

bar Litigation of those issues the

doctrine of res judicata precluces a

feceral court from decicing vhether

other legal theories would ellow for

recovery. Sec Allenv. ‘iccurryv, 449

ns +? ‘ es -

S80); Heath v. Clerry,

where the federal constitutionel

Claim is based on the same asserted

Wrong as was the subject of the

state action, ane where the parties

are the same, res judicata will bar

the federel constitutionel claim

whether it was asserted in state

court or not, for the reason that

the state judgment on the merits

serves not onlv to bar every claim

thet vas raisec in the stete court

but also to preclude the assertion

of every Legel thepry or ground for

recoverv that might heve been raised

ln support of the granting of the

desired relief.

Scoggin, 522 F, 2d et 437 (emphasis

added). 1/

Under Jashington lew, all possible

challenges to a common nucleus of

operative facts are treated as if they

had been decided in a final judgment

whether or not the theories actually

were raised in the proceedings. See

Seattle-First National Bank v. Kavwachi,

9. Mate 26 223, 226228, 568 P. 2d 725,

728 (1978); Sanwick v. Puget Sounc

Title Insurance Co., 70 esh. 2d 438,

G41—-42, 423 P. 24d 624, 627 (1967). Here,

the plaintiff originelly brought an

action egainst the City of Seattle in

state court challenging the placement

of two houses in a district zoned for

landmarks end the Seattle ordinance

creating thet district, on federal ard

state law grounds. Claims one through

eleven and fifteen of the complaint

filed in federal court challenge the

same concuct of the same cefendant end

the same ordinence. Therefore, even if

the state court "judgment may heve been

wrong or rested on a legal principle

subsequently overruled in another case,"

the doctrine of res judicata bars

litigation of these issues once again.

Federeted Depertment Stores, Inc. v.

Moitie, 452 U.S. 394, 398 (1981)

(citations omitted).2/ ‘‘e therefore

affirm the district court's holding

that that the doctrine of res judicata

precludes litigation of claims one

through eleven and fifteen.

FAILURE TOD STATE A CLAIM

The pleintiff's twelfth cleim is

that the improper use of public funds

jeoperdized the future receipt of federal

funds within the Landmerk district and

viclated state and federel law. The

speculative allegation indicates only a

general concern shared by other property

owners within the district, rather than

any threatened or actual individual

injury. Because a generalized grievance

brought by a taxpayer end shered by a

large class of citizens does not alone

warrant the exercise of federal juris-

diction, end beceuse the plaintiff

failed to plead any individual injury,

the essertion of federel jirisdiction

over the twelfth claim would have been

improper. See Jarth v. Seldin, 422 U.S.

490, 499 (1975). To the extent that the

twelfth claim raised state law issues,

those parts of the claim should have

been dismissed without prejudice after

dismissel of the federal claims. See

Pp. infra. Accordingly, we hold

that the district court properly

dismissed the claim,

STATE LA./ CLAIMS

The district court exercised

pendent jurisdiction over the state

issues raised in claims thirteen anc

fourteen, In cases in which a federal

court exercises pement jurisdiction

over state claims, “if the federal

claims ere dismissed before trial...

the stete claims should be dismissed as

well.” United “ine ‘lorkers v. Gibbs,

383 U.S. 715, 726 (1966) (emphasis

added). Here, the district cout,

rather than grenting summery judgment

on the merits, should have dismissed

without prejudice the complex state law

claims efter the federel claims vere

dismissed. See Brandwein v. California

Board of Osteopathic Examiners, 708

F, 2d 1466, 1475 (9th Cir. 1983)

(citing United Mine ‘'orkers v. Gibbs);

Townsend _v. Columbia Operations, 667

F. 2d 844, 850 (Sth Cir. 1982). ‘le

therefore reverse the district coirt's

summary judgment on the state law issues

raisec in claims thirteen and fourteen

and remand the case with instructions

to dismiss the claims without prejudice.

FFIAMED IN PART, REVERSED IN PART

FOOTNOTES

1/_—siIn deciding whether the doctrine of

res judicata precludes litigation of a

claim, a federal court generelly would

consider

(Ll) whether rights or interests

established in the prior judgment

would be destroyed or imp-zired by

prosecution of the second action;

(2) whether substantially the same

evidence is presented in the t.-/o

actions; (3) whether the two suits

involve infringement oF the sore

~isht; and (4) whether the two suits

arise out of the same transactionel

nucleus of facts.

Harris v. Jacobs, 621 7. 2d 341, 343

(oth Cir. 1950) (citation omitted);

see Rutledge v. Arizona Board of :.egents,

660 F. 2d 1345, L351 (Sth Cir. LYSL);

Gallegher v. Frye, 631 F. 2d 127,128-29

(9th Cir. 1980).

2/__ The plaintiff alleges that res

judicata should not bar Litigation of

his claims because the deferdants

perpetrated fraud upon the state courts.

‘e previously have reserved the question

whether there is a fraud exception to

the doctrine of res judicata. See

Costentini v. Trans ‘orld Airlines, 681

Fe 240 LLOY, L202 (Sth Cir.), cert,

denied, 103 S. Ct. 5790 (1982).

Hovever, we have emphasized that, even if

such en exception exists, e party must

allege fraud with particularity. 681 F.

2d at 1202-03. fe hold thet the

plaintiff's conclusory allegations of

fraud are insufficient to fall within

a proposed exception to the doctrine

of res judicata.

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