National Enterprises, Inc. v. Stewart Title Guaranty, Co.

*520 MEMORANDUM **

National Enterprises, Inc. (NEI) appeals the district court’s grant of summary judgment in favor of Stewart Title Guaranty Co. and the denial of its motion to amend its complaint. 1 We have jurisdiction and we affirm.

All but one of the claims raised in NEI’s complaint are identical to counter-claims NEI filed in Stewart’s 1995 declaratory judgment action. The counterclaims were dismissed with prejudice by the district court as precluded by the lack of a valid coverage claim. NEI appealed the district court’s dismissal of the coverage claim, and this court reversed that part of the district court’s decision. However, NEI did not appeal the dismissal of its counterclaims, and because of that waiver we affirmed the dismissal with prejudice. Although we noted in dicta that the counterclaim was premature, the basis for affirming the district court was waiver. Thus, while NEI argues that there are no res judicata effects to dismissal of a claim brought prematurely, this was not the basis for the district court’s dismissal. See Marin v. HEW, 769 F.2d 590 , 593-594 (9th Cir.1985) (ruling that decision can be “on the merits” for res judicata without literally…