759 F.2d 1434 (9th Cir. 1985), 82-5404, Eichman v. Fotomat Corp.

Docket Nº:82-5404.
Citation:759 F.2d 1434
Party Name:Adrian C. EICHMAN, Plaintiff-Appellant, v. FOTOMAT CORPORATION, a Delaware corporation, Defendant-Appellee.
Case Date:May 10, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1434

759 F.2d 1434 (9th Cir. 1985)

Adrian C. EICHMAN, Plaintiff-Appellant,


FOTOMAT CORPORATION, a Delaware corporation, Defendant-Appellee.

No. 82-5404.

United States Court of Appeals, Ninth Circuit

May 10, 1985

Argued Oct. 7, 1982.

Submitted March 25, 1985.

Page 1435

J. David Franklin, Franklin & Franklin, La Jolla, Cal., for plaintiff-appellant.

Wright & L'Estrange, John H. L'Estrange, Jr., William R. Nevitt, Jr., Sullivan & Jones, David R. Markham, Samuel J. Goldberg, San Diego, Cal., for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before KENNEDY, TANG and FERGUSON, Circuit Judges.

Page 1436

FERGUSON, Circuit Judge:

This case is before us on appeal from the district court's dismissal of Eichman's lawsuit on the ground that Eichman's claims were barred by the res judicata effect of an earlier state suit. Because California preclusion law includes the requirement of prior jurisdictional competency, under Marrese v. American Academy of Orthopaedic Surgeons, --- U.S. ----, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), we find that Eichman is not precluded from bringing a federal action when the state court had no jurisdiction to hear Eichman's federal claims. We therefore reverse the district court's dismissal of Eichman's suit.


Fotomat Corporation is a nationwide retailer of photoprocessing, photographic merchandise, and video goods and services operating through a network of retail photographic equipment and processing stores. Some Fotomat stores are company-owned and some are franchises. Eichman has been a Fotomat franchisee in San Bernardino, California since 1968. The franchise ties have been less than harmonious, and there has been litigation between the parties for over ten years.

Eichman's first suit against Fotomat (Eichman I ) was filed in San Bernardino Superior Court on July 31, 1973. The complaint alleged that Fotomat had sold photoprocessing and merchandise to Eichman's franchise store at prices higher than were available to company stores, failed to advertise properly for franchise stores, placed company stores unreasonably close to Eichman's store, and fraudulently induced Eichman to purchase the franchise by representations that company stores would not compete with his franchise. Eichman claimed damages for breach of contract and unfair competition under the California Unfair Trade Practices Act, Cal.Bus. & Prof.Code Secs. 17000-17208, and also sought injunctive relief. After four years of discovery, Eichman accepted Fotomat's settlement offer of $7,500 on September 7, 1977 pursuant to section 998 of the California Code of Civil Procedure. The San Bernardino Superior Court entered judgment nunc pro tunc as of that date.

Eichman's second suit (Eichman II ) was filed in San Diego Superior Court on April 21, 1978. The complaint in that suit was more specific, but the facts alleged were much the same--i.e., hidden markups in violation of the franchise agreement, sales to company stores at lower prices than those offered to franchise stores, tying of processing, merchandise, and kiosk leases to franchise licenses, failure to advertise properly, inducement of the purchase of the franchise by false representations, and excessive royalty charges on franchise revenues. Eichman claimed causes of action for breach of contract, restraint of trade in violation of California law, monopolization and attempted monopolization in violation of California law, fraud and deceit, conversion, accounting, breach of fiduciary duty, and declaratory relief. After permitting Eichman to amend, the San Diego Superior Court, on February 27, 1979, granted Fotomat's demurrer to all counts except those for accounting and for declaratory relief on the ground that Eichman I was res judicata. Eichman subsequently consented to the dismissal of the two remaining claims in order to pursue an appeal in the state system. On October 14, 1983, the Court of Appeal affirmed the Superior Court judgment. Eichman v. Fotomat Corp., 147 Cal.App.3d 1170, 197 Cal.Rptr. 612 (1983).

Eichman's suit before us here (Eichman III ) was filed in the United States District Court for the Southern District of California on June 19, 1981. The facts alleged are substantially the same as those alleged in Eichman II. Eichman's theories of recovery are expanded, however, the cornerstone of the new complaint being claims under the Sherman Anti-Trust Act, 15 U.S.C. Secs. 1-7, and the Clayton Act, 15...

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