NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 27 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OKSANA BAIUL, an individual, No. 16-56658

Plaintiff-Appellant, D.C. No. 2:15-cv-05163

v.

NBC SPORTS, a division of MEMORANDUM* NBCUNIVERSAL MEDIA, LLC, a Delaware limited liability company; et al.,

Defendants-Appellees,

and

MENDELSON ENTERTAINMENT

GROUP, a California limited liability company and DOES, 1 - 9,

Defendants.

Appeal from the United States District Court for the Central District of California Hon. Dean D. Pregerson, District Judge, Presiding

Argued and submitted April 12, 2018 Pasadena, CA

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: BEA and MURGUIA, Circuit Judges, and BASTIAN,** District Judge.

Plaintiff-Appellant Oksana Baiul (“Baiul”) appeals the judgment of the

Central District of California, which granted Defendants’ motion to dismiss her

claims as barred by res judicata. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

1. The district court did not err in denying Baiul’s motion to remand. Baiul

argues that remand was required because one defendant—On Ice, Inc. (“OII”)—

did not consent to the removal by Defendant NBCUniversal Media, LLC (“NBC”).

The defendant unanimity rule in 28 U.S.C. § 1446(b)(2)(A) requires that “all

defendants who have been properly joined and served must join in or consent to

the removal of the action.” Here, Baiul did not serve OII until after NBC had

already removed the case on the basis of diversity jurisdiction. Thus, at the time of

removal, all defendants who had been “properly joined and served”—i.e., NBC

only—“join[ed] in or consent[ed] to the removal of the action,” which is all that §

1446(b)(2)(A) requires. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1

(9th Cir. 1988) (noting that the unanimity “rule applies, however, only to

defendants properly joined and served in the action”) (citing Salveson v. W. States

Bankcard Ass’n, 731 F.2d 1423, 1429 (9th Cir. 1984) (“Our circuit rule is that a

** The Honorable Stanley Allen Bastian, United States District Judge for the Eastern District of Washington, sitting by designation.

2 16-56658 party not served need not be joined; the defendants summonsed can remove by

themselves.”)); see also Lewis v. Rego Co., 757 F.2d 66, 69 (3d Cir. 1985)

(“[O]nce a case has been properly removed the subsequent service of additional

defendants who do not specifically consent to removal does not require or permit

remand on a plaintiff’s motion.”). Because there was no defect in the removal

under § 1446, there was no basis for the district court to remand under 28 U.S.C. §

1447.

2. The district court did not err in dismissing Baiul’s action based on res

judicata. First, Baiul argues that the district court lacked authority to construe

NBC’s motion for judgment on the pleadings (“MJP”) under Rule 12(c) of the

Federal Rules of Civil Procedure as a motion to dismiss under Rule 12(b)(6). But

this court has noted that the two motions are “functionally identical.” Gregg v.

Hawaii, Dep’t of Pub. Safety, 870 F.3d 883, 887 (9th Cir. 2017) (“Because a Rule

12(c) motion is functionally identical to a Rule 12(b)(6) motion, the same standard

of review applies to motions brought under either rule.” (internal quotation marks

and citation omitted)); see also Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.

1980) (construing a motion to dismiss as a motion for judgment on the pleadings).

Furthermore, construing the MJP as a motion to dismiss did not result in a

violation of Rule 12(g)(2). Fed. R. Civ. P. 12(g)(2) (prohibiting second-in-time

motions to dismiss that raise “a defense or objection that was available to the party

3 16-56658 but omitted from its earlier motion.”). The New York action was dismissed with

prejudice after NBC had filed its first motion to dismiss the instant action, and

therefore the res judicata defense was not “available” to NBC at that time.

Second, Baiul argues that the district court erred in applying the federal

preclusion analysis to determine the preclusive effect of the New York judgment.

This court has held that “California’s law of res judicata dictates what preclusive

effect is to be accorded to the prior judgment against appellant,” but “California

law . . . determines the res judicata effect of a prior federal court judgment by

applying federal standards.” Costantini v. Trans World Airlines, 681 F.2d 1199,

1201 (9th Cir. 1982). Since Costantini was decided, California courts have stated

that this is true at least where, as here, the rendering federal court sat in federal-

question jurisdiction. See, e.g., Louie v. BFS Retail & Commercial Operations,

LLC, 101 Cal. Rptr. 3d 441, 448 (Cal. Ct. App. 2009) (“[W]here a prior federal

judgment was based on federal question jurisdiction, the preclusive effect of the

prior judgment of a federal court is determined by federal law.” (emphasis in

original)); Butcher v. Truck Ins. Exch., 92 Cal. Rptr. 2d 521, 528 (Cal. Ct. App.

2000) (“California follows the rule that the preclusive effect of a prior judgment of

a federal court is determined by federal law, at least where the prior judgment was

on the basis of federal question jurisdiction.”). Costantini is this court’s only

4 16-56658 citable precedent on point. Therefore, the district court did not err in applying the

federal preclusion analysis.

Finally, the district court correctly held that the instant action was barred by

the judgment in the New York action. “In order for res judicata to apply there

must be: 1) an identity of claims, 2) a final judgment on the merits, and 3) identity

or privity between parties.” W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192

(9th Cir. 1997). Baiul has not disputed, in her Opening Brief or in her opposition

filed with the district court, that there was an identity of claimsor identity between

the parties. Accordingly, Baiul waived both issues. Greenwood v. FAA, 28 F.3d

971, 977 (9th Cir. 1994); Abogados v. AT&T, Inc., 223 F.3d 932, 937 (9th Cir.

2000).

Baiul argues that the Southern District of New York’s dismissal of the New

York action with prejudice was not a final judgment on the merits because (1) an

appeal was pending and (2) the dismissal was based on a foreign limitations

period, rather than the merits. Neither argument is persuasive. First, “[i]n federal

courts, a district court judgment is ‘final’ for purposes of res judicata,” and “[t]his

is so even during the pendency of an appeal.” Sosa v. DIRECTV, Inc., 437 F.3d

923, 928 (9th Cir. 2006). Second, the Southern District of New York held that

each of Baiul’s claims were (1) preempted by the Copyright Act, and (2)

insufficient to “state a plausible claim,” as well as (3) time-barred. Thus, the

5 16-56658 Southern District of New York judgment was “on the merits” twice over. The

district court correctly held that Baiul’s instant claims are precluded.

AFFIRMED.

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