Corbett

MEMORANDUM **

Dyane Corbett, on behalf of the estate of her mother Doris Loucks, appeals the district court’s Fed.R.Civ.P. 4(m) dismissal and summary judgment in favor of Manor-Care, Inc. in Corbett’s diversity action brought under the Arizona Adult Protection Statute, A.R.S. § 46-455. The facts and procedure are known to the parties and are repeated here only as necessary.

ManorCare argues that this appeal should be dismissed based on the doctrine of res judicata, relying on the Pima County Superior Court’s granting of summary judgment against the subsidiaries on August 12, 2005. State law determines the preclusive effect of a state court judgment. Sosa v. DIRECTV, Inc. 437 F.3d 923, 927 (9th Cir.2006). In Arizona, under the doctrine of res judicata, a judgment on the merits in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action, and a judgment is final when entered, even if it may be appealed. Murphy v. Board of Med. Exam’rs of State of Arizona, 190 Ariz. 441, 449 , 949 P.2d 530 (1997); Circle K Corp. v. Industrial Comm’n, 179 Ariz. 422, 425 , 880 P.2d 642 (1993). This suit is not precluded simply because a state court…

dissenting in part:

I would affirm the district court judgment dismissing Corbett’s suit against ManorCare. Although the district court cited the wrong version of Fed.R.Civ.P. 4, there is no good explanation for the plaintiffs failure to serve the proper parties, and, accordingly, the district court did not abuse its discretion.