Duane Friez v. First American Bank & Trust of Minot, Kna Bremer Bank William Kolb Duaine Espegard

324 F.3d 580

Opinions

PER CURIAM.

In September 1999, Duane Friez sued his ERISA plan sponsors, First American Bank & Trust of Minot (Bremer Bank) and Bremer Financial Services, Inc. (Bremer Financial), in an attempt to receive ERISA benefits. The district court dismissed Friez’s ERISA claim in June 2000, concluding oral statements made by William Kolb (Bremer Bank Personnel Officer) and Duaine Espegard (Bremer Bank President) did not amend the ERISA plan and thus extend benefits to Friez. Approximately four months later, Friez brought a separate tort-based lawsuit against Bremer Bank, Kolb, and Espegard in an attempt to receive the value of the ERISA benefits he had been denied. The district court

Footnotes

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* dismissed Friez’s tort claims based on res judicata (claim preclusion), and Friez appeals. We review the district court’s dismissal de novo. Lundquist v. Rice Mem. Hosp., 238 F.3d 975, 976 (8th Cir.2001) (per curiam) (standard of review).

Res judicata prevents the splitting of a single cause of action and the use of several theories of recovery as the basis for separate lawsuits. Hartsel Springs Ranch v. Bluegreen Corp., 296 F.3d 982, 986 (10th Cir.2002). In North Dakota, res judicata, also known as claim preclusion, prevents the relitigation of claims or issues that were raised or could have been raised in an earlier action between the same parties or their privies. Ohio Cas. Ins. Co. v. Clark, 583 N.W.2d 377, 383 (N.D.1998); see also Lundquist, 238 F.3d at 977.

Friez first argues his tort claims are not barred because they raise a different cause of action than his earlier ERISA claims. Even though Friez advances different legal theories in the two cases, his cause of action is the same: Friez relies on a common nucleus of operative fact (promises allegedly made by Kolb and Espegard about ERISA benefits in their capacity as Bremer Bank’s officers and managers) and seeks effectively the same relief (ERISA benefits) in both cases. Costner v. URS Consultants, Inc., 153 F.3d 667, 674 (8th Cir.1998). As we have stated, “[a] party may not litigate a claim and then, upon an unsuccessful disposition, revive the same cause of action with a new theory.” Roach v. Teamsters Local Union No. 688, 595 F.2d 446, 450 (8th Cir.1979).

Friez also argues Kolb and Espegard are not in privity with Bremer Bank and Bremer Financial, the defendants in his first lawsuit. Again, we disagree. Both lawsuits revolve around Kolb and Espegard’s statements to Friez as officers and managers of Bremer Bank. Although officers are generally treated as separate from a corporation for purposes of preclusion, they may be in privity with a corporation if they are named as defendants in their capacity as officers. United States v. Gurley, 43 F.3d 1188, 1197 (8th Cir.1994). Because Kolb and Espegard are sued as officers of Bremer Bank in Friez’s second lawsuit, they are in privity with Bremer Bank, a defendant in Friez’s first action. Id.

Finally, because we have decided this case based on res judicata, it is not necessary for us to consider whether Friez’s tort claims are also preempted under ERISA. Thus, for the reasons stated above, we affirm the judgment of the district court.

The Honorable Patrick A. Comny, United States District Judge for the District of North Dakota.