Lee v. Arizona Board of Regents, 032116 FED9, 14-15404

Docket Nº:14-15404
Party Name:CHUNHYE KIM LEE, Plaintiff - Appellant, v. ARIZONA BOARD OF REGENTS; et al., Defendants-Appellees.
Judge Panel:Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.
Case Date:March 21, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

CHUNHYE KIM LEE, Plaintiff - Appellant,


ARIZONA BOARD OF REGENTS; et al., Defendants-Appellees.

No. 14-15404

United States Court of Appeals, Ninth Circuit

March 21, 2016


Submitted March 16, 2016[**] San Francisco, California

Appeal from the United States District Court No. 3:13-cv-08256-DGC for the District of Arizona David G. Campbell, District Judge, Presiding

Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.


Dr. Chunhye Kim Lee (Dr. Lee) appeals the Rule 12(b)(6) dismissal of her 2013 first amended complaint (FAC) against the Arizona Board of Regents, the State of Arizona, Northern Arizona University (NAU), and certain individual employees of NAU (collectively, Appellees) on res judicata grounds. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

1. The district court correctly concluded that Dr. Lee's 2013 FAC alleged claims arising out of the "same transactional nucleus of facts" as the claims alleged in her 2010 action against Appellees, which were dismissed in a final judgment on the pleadings on August 4, 2011.1 See Frank v. United Airlines, Inc., 216 F.3d 845, 851 (9th Cir. 2000). Dr. Lee's 2010 action alleged whistleblower retaliation based on a May 2008 email she sent to her supervisor, Dean Schulz, that raised concerns about Dean Schulz's academic credentials. Before she filed her 2010 action, Dr. Lee communicated her concerns about Dean Schulz and other NAU faculty to "those charged with enforcing the Arizona Board of Regents criteria for faculty credentials" in a Spring 2010 letter. In the 2013 FAC, Dr. Lee alleges whistleblower retaliation based on the Spring 2010 letter. The district court correctly found that Dr. Lee alleged the same acts of retaliation in both actions resulting from the same concerns expressed in the 2008 email and Spring 2010 letter. See ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d 960, 968 (9th Cir. 2010). That Dr. Lee was formally terminated after the 2010 action had closed does not alter this analysis. Although the 2013 action alleges some claims that differ from those adjudicated in the 2010 action, there is no question that all of the claims she now alleges were either "raised or could have been raised in [the] prior action." Cell Therapeutics, Inc. v. Lash Grp., Inc., 586 F.3d 1204, 1212 (9th Cir. 2009).

2. Because the district court...

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