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DeNardo v. Calista Corporation (04/22/2005) sp-5890
DeNardo v. Calista Corporation (04/22/2005) sp-5890
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL DeNARDO, )
) Supreme Court No. S-11183
Appellant, )
) Superior Court No. 3AN-01-
12484 CI
v. )
) O P I N I O N
CALISTA CORPORATION and )
ALASKA NEWSPAPERS, INC., ) [No. 5890 - April 22, 2005]
)
Appellees. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Phillip Volland, Judge.
Appearances: Daniel DeNardo, pro se,
Anchorage. Joan E. Rohlf and Pamela D.
Weiss, Guess & Rudd P.C., Anchorage, for
Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
BRYNER, Chief Justice, dissenting.
I. INTRODUCTION
Plaintiff filed three state and federal lawsuits
against his former employer. After the first two actions were
dismissed, the superior court dismissed his third, holding it was
barred by res judicata and the judicial policy against claim
splitting. Plaintiff appeals. Because the stipulated terms of
the dismissal in the first state court action preserved the
plaintiffs non-federal claims, neither res judicata nor the
doctrine against claim splitting bars the third action. We
therefore vacate the dismissal order in the third action and
remand for further proceedings.
II. FACTS AND PROCEEDINGS
Daniel DeNardo filed three state and federal lawsuits
against his former employer, Alaska Newspapers, Inc., (ANI) and
its majority shareholder, Calista Corporation. ANI had employed
DeNardo as an advertising sales representative from October 1999
until his termination in July 2000. It is the superior courts
dismissal of the last-filed of these three lawsuits, on grounds
of res judicata and the policy against claim splitting, that
leads to this appeal.
First lawsuit. DeNardo filed his first lawsuit against
ANI, Calista, and eight former co-workers in state superior court
in July 2000. His complaint in Case No. 3AN-00-8753 CI alleged
numerous claims, including breach of contract, retaliation for
filing claims with the Department of Labor and the Equal
Employment Opportunity Commission, and negligent and intentional
infliction of emotional distress based on harassment by, and
favoritism toward, some of ANIs female employees. DeNardo
amended his complaint on August 7, 2000, but the changes are not
material for purposes of this appeal.
Second lawsuit. In October 2000 DeNardo filed his
second lawsuit against Calista and ANI. He brought this action
in federal court in Case No. A00-309-CV, and based his claims on
the same facts asserted in his state court action. The federal
complaint alleged state law claims of negligent and intentional
infliction of emotional distress and federal law claims of gender
discrimination and sexual harassment under 42 U.S.C. 2000(e)-
2000(e)(17) (Title VII).
Calista and ANI removed Case No. 3AN-00-8753 CI, the
state court action, to federal court in November 2000, where it
became Case No. A00-351-CV; in December defendants moved for
consolidation of the two federal cases. United States District
Judge H. Russel Holland ordered consolidation, but in April 2001
remanded Case No. A00-351-CV to state court while retaining
jurisdiction over Case No. A00-309-CV.
Following this remand, DeNardo offered to dismiss his
now-remanded state court action, Case No. 3AN-00-8753 CI. The
defendants accepted his offer, and on April 27, 2001, the parties
signed a three-paragraph stipulation prepared by defense counsel
for dismissal of Case No. 3AN-00-8753 CI with prejudice.1 In May
2001 Superior Court Judge Elaine M. Andrews signed defense
counsels proposed order granting the Stipulation to Dismiss With
Prejudice.
Calista and ANI then moved for dismissal of the
remaining federal action, Case No. A00-309-CV, contending that as
tribal entities they could not be sued under Title VII, because
neither was an employer. The United States District Court
granted their motion in November 2001. Judge Hollands memorandum
dismissal order stated, however, that because the court had no
original jurisdiction over the Title VII claim, it declines to
exercise supplemental jurisdiction over plaintiffs state law
claim for the infliction of emotional distress. The order also
stated that it is without prejudice to pursuit of any state law
claims plaintiff may have in state court. The United States
Court of Appeals for the Ninth Circuit affirmed the dismissal in
2002.
Third lawsuit. In December 2001, after his first state
action and his federal action were dismissed, DeNardo commenced
his third lawsuit by filing a superior court complaint in Case
No. 3AN-01-12484 CI against Calista and ANI. This complaint was
based on the same facts alleged in the first state court action.
It expressly asserted a claim of discrimination by Calista and
ANI against him in violation of AS 18.80. It indirectly asserted
claims of negligent and intentional infliction of emotional
distress.
Calista and ANI moved to dismiss Case No. 3AN-01-12484
CI on the basis of res judicata and the doctrine against claim
splitting. Superior Court Judge Phillip R. Volland granted their
motion on those grounds. DeNardo requested withdrawal of the
dismissal stipulation filed in Case No. 3AN-00-8753 CI, but the
superior court denied his request. DeNardo appeals the courts
dismissal of Case No. 3AN-01-12484 CI and its denial of his
request to withdraw his dismissal stipulation in Case No. 3AN-00-
8753 CI.
Unless context dictates otherwise, we refer
collectively to the appellees as Calista.
III. DISCUSSION
A. Standard of Review
Whether res judicata applies is a question of law, an
issue that we review de novo.2 We interpret stipulations using
the rules of contract interpretation.3 We review the
interpretation of contracts, and thus stipulations, de novo.4
B. Res Judicata Does Not Bar DeNardos Claims of Negligent
Infliction of Emotional Distress, Intentional
Infliction of Emotional Distress, and Discrimination.
The parties disagree about whether the dismissals
entered in DeNardos two previous lawsuits bar his third lawsuit.
Resolution of this issue requires us to consider the effect of
the superior court dismissal stipulation and the federal court
dismissal order.
1. Parties contentions
DeNardo argues that a stipulation will not be construed
to give effect to a waiver of a right not plainly intended to be
relinquished.5 He argues that a stipulation must be construed
according to the parties intention as expressed in the documents
language.6 DeNardo contends that the dismissal stipulations
terms preserved the discrimination claim regardless of which
court had jurisdiction over it. He argues that the federal court
dismissed the discrimination claim because it lacked
jurisdiction; he contends that jurisdictional dismissals have no
res judicata effect.7 He also seems to argue that his first
state action did not include a discrimination claim under AS
18.80 and that therefore the dismissal in his first state court
action cannot bar his current discrimination claim.
Calista argues that under the doctrine of res judicata,
dismissal of the first state lawsuit bars the present lawsuit.
It asserts that all elements are present to give res judicata
effect to the stipulated dismissal. It states that a dismissal
entered pursuant to a stipulation for dismissal of claims with
prejudice has the same res judicata effect as a final judgment
entered after trial.8 It therefore contends that the order
granting the stipulation to dismiss with prejudice is a final
judgment for res judicata purposes. It also argues that the
superior court in the first state action had jurisdiction and
that the same parties are involved in both state actions.
Calista argues that DeNardo does not dispute that he could have
asserted a claim for discrimination under AS 18.80.220 in his
first action. It therefore reasons that the stipulated dismissal
resolved not only the claims specifically brought, but also the
claims DeNardo could have brought under AS 18.80.220.9 It also
argues that we should not permit DeNardo to prolong this
litigation by splitting his claim.10
2. DeNardos prior claims and the stipulated dismissal
DeNardos original and amended complaints in his first
state court action, Case No. 3AN-00-8753 CI, alleged, among other
causes of action, claims for negligent and intentional infliction
of emotional distress. They also stated that Calista and ANI
sexually discriminated against DeNardo, although the complaints
did not explicitly refer to AS 18.80. The discrimination claim
relied on the same facts as the negligent and intentional
infliction of emotional distress claims. We have held that the
pleadings of pro se litigants should be held to less stringent
standards than those of lawyers.11 This proposition reflects a
policy against finding unintended waiver of claims in technically
defective pleadings filed by pro se litigants.12 We therefore
conclude that DeNardos complaints in Case No. 3AN-00-8753 CI
encompassed a statutory state-law based sex discrimination claim
even though they did not refer specifically to AS 18.80.13 Alaska
Statute 18.80.220(a) makes it unlawful for an employer to
discriminate unjustifiably against a person because of the
persons sex.14
The dissent argues at 21-22 that DeNardos position on
appeal, which disavows any intent to assert a claim under AS
18.80 in his original state complaint, precludes us from reading
that complaint as encompassing such a claim. The dissents
discussion of DeNardos complaint and the stipulation might be
compelling if DeNardo had been represented by counsel. But given
the leniency with which we interpret the pleadings of pro se
litigants, we think that focusing on DeNardos current
understanding of his original pleadings is misplaced. A pro se
litigants interpretation of his own complaint need not be
determinative of what it actually pleads; the court must exercise
its independent judgment in determining what claims the
complaints words assert. DeNardos recitation of facts and use of
the term sexually discriminated in his first complaint establish
that it pleaded a AS 18.80 claim, his post hoc explanation of his
pleading intentions notwithstanding.15
Although DeNardos present interpretation of his first
complaint is not determinative of what claims that complaint
alleged, his contemporaneous understanding of the meaning of the
stipulation for dismissal is relevant to its interpretation. As
to this issue, DeNardo contends on appeal that he understood the
stipulation to preserve his claims then pending in federal court.
DeNardos federal complaint in Case No. A00-309-CV
asserted state-law based claims of negligent and intentional
infliction of emotional distress as well as federal-law based
claims of discrimination. The federal complaint alleged the same
facts pleaded in the state law discrimination claim in Case No.
3AN-00-8753 CI; the complaint in Case No. A00-309-CV therefore
should be read to include the same claims as the complaint in
Case No. 3AN-00-8753 CI. For that reason, and given our leniency
in interpreting the pleadings of pro se litigants,16 we read the
federal complaint in Case No. A00-309-CV to have asserted: (1) a
federally based discrimination claim, (2) a state-law based
discrimination claim, and (3) state-law based negligent and
intentional infliction of emotional distress claims.
The claims asserted in that federal action are
important, given the terms of the stipulation for dismissal
signed by the parties in Case No. 3AN-00-8753 CI. To determine
the res judicata effect of the stipulated dismissal, it is
necessary to determine the stipulations effect.
After the first state action was removed to federal
court and then remanded to the superior court, the parties signed
the stipulation dismissing Case No. 3AN-00-8753 CI with
prejudice.17
Res judicata applies if: (1) a court of competent
jurisdiction, (2) has rendered final judgment on the merits, and
(3) the same cause of action and same parties or their privies
were involved in both suits.18 In Plumber v. University of Alaska
Anchorage we discussed whether a stipulation for dismissal with
prejudice could give rise to res judicata:
[A] stipulation to dismiss claims with
prejudice is sufficient for res judicata
purposes: [A] stipulation [to dismiss claims
with prejudice] is just as valid as a final
judgment resulting from a trial on the
merits, and is res judicata as to all issues
that were raised or could have been
determined under the pleadings.[19]
There is no dispute that the first and third
requirements for res judicata are present here. The parties do
not dispute the superior courts jurisdiction in the first state
action. It is also undisputed that the parties in both the first
state action and the present action included DeNardo, Calista,
and ANI, and that causes of action are the same in both lawsuits.
But there is a dispute concerning the second
requirement. The parties do not dispute that the superior court
rendered a final judgment on the merits when it granted the
stipulation to dismiss with prejudice in Case No. 3AN-00-8753 CI,
but they disagree about what claims the dismissal actually
resolved.20
Res judicata based on a stipulated dismissal does not
prevent a plaintiff from bringing a cause of action that was
expressly reserved for later adjudication.21 A stipulation may
reserve a claim for later litigation, and courts will not
construe the stipulation to waive rights not plainly intended to
be relinquished.22 We recognize that courts look with favor on
stipulations designed to simplify, shorten or settle litigation,
or to save costs and will not give such stipulations a forced
construction.23 Moreover, the language purporting to reserve a
claim must be explicit, so that the parties not only ha[ve] an
opportunity to dicker over the language, but [are] thereafter on
notice about which claims were reserved and which were not.
Blanket reservations of rights will not suffice.24
We therefore turn to the stipulation to determine which
claims DeNardo preserved.
Defendants counsel drafted the stipulation in Case No.
3AN-00-8753 CI, and DeNardo and defendants attorney signed it on
April 27, 2001. The first paragraph stated that the claims
asserted by [DeNardo] in [Case No. 3AN-00-8753 CI] . . . against
all defendants are dismissed in their entirety, with prejudice.
But the second paragraph stated that [t]his stipulation does not
affect plaintiffs claims against Calista Corporation and Alaska
Newspapers, Inc. in . . . A00-309 Civ. . . . , currently pending
in the U.S. District Court for the District of Alaska.
Therefore, even though DeNardo agreed in the first paragraph to a
dismissal with prejudice of the claims he had asserted in his
first state court action, the second paragraph preserved his
claims against Calista and ANI then pending in federal court as
of April 27, when the parties signed the stipulation. The claims
then pending in federal court included claims for negligent and
intentional infliction of emotional distress and discrimination.
The stipulation is ambiguous, because it did not
clearly explain how to resolve claims that were pending, as of
April 27, 2001, in both state and federal court, i.e., claims
encompassed by both the first and second paragraphs of the
stipulation. The dissent correctly notes that a dismissal with
prejudice usually bars a plaintiff from refiling the same claim
in the same court.25 But given the ambiguity introduced by the
stipulations second paragraph, we cannot conclude that the first
paragraphs dismissal of claims with prejudice bars this action
before we resolve which claims the stipulation dismisses and
which claims it preserves.
We conclude, for three reasons, that the stipulation
should not be read to foreclose the claims reserved by the second
paragraph. First, we hold pro se litigants to less stringent
standards.26 Second, we construe the ambiguous terms of the
document contrary to the preparer of the document, Calistas
counsel.27 Third, we interpret waiver language narrowly.28
This reading does not render the stipulation a nullity
from its inception; when the parties entered into the
stipulation, the federal court had not yet ruled that Calista was
not an employer. Parties entering into the stipulation could
have rationally assumed that the federal court, in resolving the
Title VII claim, would also resolve the pendant emotional
distress claims. Given the litigation history of the employment
dispute, parties could have rationally thought it was desirable
to attempt to resolve all remaining claims, including the Title
VII claim and the state law claims, in a single forum in a single
proceeding.
Two circumstances might justify a different outcome.
First, the policy of favoring stipulations to simplify or settle
litigation favors reading the two paragraphs in a way that avoids
conflict. Second, extrinsic evidence might help resolve the
apparent ambiguity: DeNardos April 20, 2001 offer to enter into a
stipulation implies that he was willing to dismiss his entire
state court action; it stated that he wished only to maintain the
prosecution of his Title VII action in the federal court. The
text of his dismissal offer would support a conclusion that he
only intended to prevent a stipulated state court dismissal from
interfering with the federal court proceeding (perhaps through
any res judicata effect the proposed dismissal could have on the
federal action). This would support a conclusion that the
reservation in the stipulation was not necessarily intended to
permit DeNardo to begin a new state court action asserting claims
that were in the federal court only through exercise of that
courts pendant jurisdiction.
But the stipulations reservation was not as limited as
DeNardos offer. Furthermore, the stipulation explicitly
preserved DeNardos claims then pending in federal court,29 not the
forum where those claims were then pending. That the stipulation
described the claims to be preserved as those then pending in the
federal court did not preclude their later adjudication in state
court. Instead, because the stipulation did not state that the
preserved claims would be barred in state court if they were not
finally adjudicated in federal court, it did not designate the
federal court as the exclusive forum for the preserved claims.
Despite the apparent dismissal with prejudice of the disputed
claims in state court, their dismissal in state court was without
prejudice because they were among the pending federal claims
expressly preserved.
The dissent argues at 22 that we err by giving DeNardo
relief on unraised substantive grounds that differ substantially
from the issues that the parties actually briefed. In our view,
DeNardo raised the grounds on which our holding rests when he
asserted in his opening brief that the second paragraph of the
stipulation preserved all claims then pending in federal court.
Because DeNardos first state court complaint and his
federal complaint both included AS 18.80 claims and the
stipulation preserved all claims in DeNardos federal complaint,
we conclude that the stipulation does not prevent DeNardo from
litigating his AS 18.80 claim in state court.
3. The federal courts dismissal
We now turn to Judge Hollands dismissal order to
determine what claims remained after he dismissed DeNardos
federal case. At least in theory, the federal dismissal order
could have res judicata effect. But the federal dismissal order
declined to rule on the merits of DeNardos non-federal claims.
The federal courts November 2001 order dismissing Case No. A00-
309-CV recognized that [h]aving dismissed plaintiffs Title VII
claims, the only claims remaining are plaintiffs pendent state
law claims for infliction of emotional distress. The federal
court stated that original jurisdiction does not exist for
plaintiffs Title VII claim. Accordingly, the court declines to
exercise supplemental jurisdiction over plaintiffs state law
claim for the infliction of emotional distress. It concluded
that the dismissal is without prejudice to pursuit of any state
law claims plaintiff may have in state court. Because, as we
concluded above, Case No. A00-309-CV included claims of both
negligent and intentional infliction of emotional distress and
discrimination, and all of these claims were independently based
on state law, the dismissal of DeNardos Title VII claim did not
affect these claims.
The parties compare and contrast claims under Title VII
and AS 18.80. Because the federal court dismissed DeNardos Title
VII claim on jurisdictional grounds based on Calistas exemption
from Title VII claims, dismissal of his Title VII claim does not
preclude his AS 18.80 claim.30
DeNardos complaint in the present lawsuit explicitly
refers to the state anti-discrimination statute, AS 18.80. It
also seeks damages for emotional anxiety and distress and for the
outrageous and bad faith conduct by defendants done with a
reckless disregard and deliberate indifference to [DeNardos]
civil rights. Once again, because of our greater leniency toward
pleadings of pro se litigants,31 and because all of the claims are
based on the same facts, we conclude that DeNardos complaint in
the present case alleges both discrimination and negligent and
intentional infliction of emotional distress. As described
above, neither the stipulation nor the federal court dismissal
precluded these claims. We therefore conclude that it was error
to hold that res judicata prevented DeNardo from pursuing the
current action.32
4. Claim splitting
The doctrine against claim splitting prohibits
advancing one part of the claim in an initial suit and reserving
the remaining parts for a later suit.33 Because the present
lawsuit raises only claims already raised in the first state
action, DeNardo did not split his claim. It was therefore error
to hold that the doctrine against claim splitting barred DeNardos
current action.
5. Rescission of stipulation
DeNardo asserts that stipulations can be rescinded in
the interests of justice and to avoid a manifest injustice. The
superior court denied DeNardos motion to rescind the stipulation.
DeNardos brief does not assert that it was error to deny
rescission and its terse reference to the issue is completely
insufficient to demonstrate that it was an abuse of discretion to
deny the request.34
IV. CONCLUSION
For the foregoing reasons, we VACATE the order
dismissing plaintiffs complaint in this lawsuit and REMAND for
proceedings consistent with this opinion.
BRYNER, Chief Justice, dissenting.
I disagree with the opinions interpretation of the
order dismissing DeNardos state action and with its conclusion
that the dismissal left DeNardo free to renew his state action
after the federal court dismissed his federal action.
The crucial question here is the meaning of the
superior courts order dismissing DeNardos initial state action
with prejudice. The order incorporated the parties stipulation,
which agreed to dismiss DeNardos state claims against all
defendants . . . in their entirety with prejudice . . . [without
affecting] plaintiffs claims against Calista . . . currently
pending in the U.S. District Court for the District of Alaska.
The meaning of the order and stipulation raise questions of law.
Civil Rule 41(a)(1) presumes that a stipulated dismissal will be
entered without prejudice but leaves it to the parties to supply
a different meaning. Here the parties expressly agreed to a
dismissal with prejudice; but the provision allowing further
proceedings on DeNardos federal claims make it obvious that they
contemplated something narrower than the traditionally broad
meaning of with prejudice. Given these circumstances, I would
take guidance from the somewhat narrower meaning usually given to
a dismissal on the merits under Civil Rule 41(b)s default
provision. As we recently recognized, a dismissal with prejudice
under the default provision of Rule 41(b) typically bars the
claimant from refiling the same claims in the court that ordered
the dismissal: unlike a dismissal without prejudice, the
dismissal . . . bar[s] refiling of the same claim in the [same
court]. 1
Apart from being the usual meaning given to the term
with prejudice in a dismissal order of this kind, this meaning
comports with the express terms of the stipulation in this case,
which unequivocally contemplated finally dismissing DeNardos
state-court action, while at the same time leaving DeNardo free
to pursue his already pending federal action in federal court.
The usual meaning similarly comports with Calista and ANIs
understanding of the stipulation; more to the point, it also
comports with DeNardos own description of the stipulated
dismissals meaning.
The argument DeNardo actually advances here, as I see
it, boils down to this: (1) his original state action only
asserted tort claims and did not include a statutory
discrimination claim; (2) in stipulating to dismiss his original
action, he simply meant to give up his state-court tort claims,
while preserving his right to pursue his then-pending action in
federal court, which included a statutory discrimination claim;
and (3) once the federal court dismissed his discrimination claim
without prejudice, he was free to raise it in state court,
because he had never raised it there before.
Thus, in presenting his own case, DeNardo essentially
admits understanding that the stipulation precluded him from
returning to state court with claims that he had already raised;
he merely argues that the stipulation did not preclude him from
filing new state claims. As already pointed out above, this is
the usual meaning given to a dismissal with prejudice under Civil
Rule 41(b)s default provision. The only issue this meaning
leaves open here is whether DeNardos current discrimination claim
is a new claim or part of the same claim he originally filed in
the superior court.
DeNardos argument on this point might have merit if he
were correct in assuming that his discrimination claim could
evade being barred merely because it relied on a new legal theory
that he chose not to include in his original state complaint.
But this assumption is legally flawed: his statutory
discrimination claim arises from the same transaction as his
original tort claims and could have been filed with those claims;
so for purposes of determining the stipulated dismissals
preclusive effect, the claim-splitting doctrine requires us to
treat the later discrimination claim as the same claim as if
DeNardo had actually included it in his original state action.2
Under DeNardos own view of the stipulated dismissals meaning,
then, his new statutory discrimination claim is barred as a
matter of law by the stipulated order dismissing his state
claims.3
Todays opinion nonetheless comes to DeNardos rescue by
invoking the maxim that a pro se litigants pleadings should be
interpreted leniently. The opinion reads DeNardos original state
complaint as advancing an implied statutory discrimination claim,
and concludes that his new discrimination claim consequently
evades the claim-splitting doctrine; the opinion finds that the
stipulation meant to allow DeNardo to return to state court with
any claim then pending in his federal case; and it construes
DeNardos new state action as permissibly including both his
discrimination claim and an implied IIED claim.
The trouble with this analysis is that it gives the
stipulation a meaning that neither party has ever asserted, and
it adopts a substantive legal theory that flatly conflicts with
each aspect of the theory DeNardo actually argues here. Even
though DeNardos briefing repeatedly insists that he did not
assert his current discrimination claim in his original state
action, the opinion says that he is wrong he did. Although
DeNardo acknowledges that by stipulating to dismiss the original
action he meant to abandon his right to pursue his state tort
claims,4 the opinion rejects his description of his own
intentions and finds that the stipulations left him free to
return to state court with any claim pending in his federal case,
including his tort claim. And despite the facts that DeNardos
new state complaint omits the express IIED claim advanced in his
earlier complaints and that his appellate briefing omits any
mention of an intent to pursue this tort claim, the opinion
insists that DeNardo must have meant to pursue it, finding that
an implied IIED claim lies embedded in his new state complaint.
In my view, this analysis improvidently expands the
rule allowing courts to treat pro se litigants pleadings
leniently: until now, we have carefully confined this rule to
situations in which courts need to relax technical pleading
requirements to enable pro se litigants to make the substantive
points they actually try to pursue.5 Yet todays opinion vastly
broadens the power of leniency toward pro se litigants by using
it to assist DeNardo in prevailing on a substantive theory that
he actively disavows. In my judgment, the court errs by giving
DeNardo relief on unraised substantive grounds that stray so
dramatically from the theories actually briefed.6 I would affirm
the superior courts ruling on the issues DeNardo actually argued.
Accordingly, I dissent.
_______________________________
1 The stipulation provided, in part:
[T]he claims asserted by plaintiff in [Case
No. 3AN-00-8753 CI] . . . against all
defendants are dismissed in their entirety,
with prejudice . . . .
This stipulation does not affect
plaintiffs claims against Calista Corporation
and Alaska Newspapers, Inc. in . . . A00-309
. . . currently pending in the U.S. District
Court for the District of Alaska.
2 Tru-Line Metal Prods., Inc. v. United States
Fabrication & Erection, 52 P.3d 150, 153 (Alaska 2002).
3 See Van Deusen v. Seavey, 53 P.3d 596, 603 n.23 (Alaska
2002) (We apply our independent judgment in reviewing the
superior courts interpretation of the stipulation and the final
judgment to determine the parties intentions.) (citing Jackson v.
Barbero, 776 P.2d 786, 788 (Alaska 1989) (Interpretation of a
contract is a question of law, for which the reviewing court uses
independent judgment.)). See also Jones v. World Life Research
Inst., 131 Cal. Rptr. 674, 677 (Cal. App. 1976) (If
interpretation of a stipulation is in order the rules applied are
those applied to the interpretation of contracts.) (quoting
Harris v. Sinali Auto Sales, Inc., 20 Cal. Rptr. 586, 589 (Cal.
App. 1962)).
4 See Van Deusen, 53 P.3d at 603. See also Traynor v.
Thomas & Betts Corp., 659 N.W.2d 158, 162 (Wis. App. 2003)
(Construction of a stipulation is a question of law that we
review independently.).
5 Godfrey v. Hemanway, 617 P.2d 3, 8 (Alaska 1980).
6 Kershaw v. Pierce Cattle Co., 393 P.2d 31, 34 (Idaho
1964).
7 Tru-Line Metal Prods., Inc. v. United States
Fabrication & Erection, 52 P.3d 150, 154 (Alaska 2002).
8 Tolstrup v. Miller, 726 P.2d 1304, 1306 (Alaska 1986).
9 Id.
10 See DeNardo v. State, 740 P.2d 453, 457 (Alaska 1987).
11 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987); see also
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (stating
that Court holds pleadings of pro se complainants to less
stringent standards than formal pleadings drafted by lawyers);
Gilbert v. Nina Plaza Condo Assn, 64 P.3d 126, 129 (Alaska 2003)
(We have indicated, for example, that courts should generally
hold the pleadings of pro se litigants to less stringent
standards than those of lawyers.).
12 See Zok v. State, 903 P.2d 574, 576 n.2 (Alaska 1995)
(holding that appellant waived issue, even applying a more
lenient standard for [appellant] as a pro se litigant) (emphasis
added). See also Castro v. United States, 540 U.S. 375, 381-82
(2003) (noting that [f]ederal courts sometimes will ignore the
legal label that a pro se litigant attaches to a motion and
recharacterize the motion in order to place it within a different
legal category . . . in order to avoid an unnecessary dismissal,
to avoid inappropriately stringent application of formal labeling
requirements, or to create a better correspondence between the
substance of a pro se motions claim and its underlying legal
basis.) (internal citations omitted) (emphasis added).
13 See Smith v. Sampson, 816 P.2d 902, 906 (Alaska 1991)
(relaxing requirement of Appellate Rule 210(e) and discussing pro
se appellants due process claims not listed in points of appeal);
Wilkerson v. State, Dept of Health & Soc. Servs., Div. of Family
& Youth Servs., 993 P.2d 1018, 1022 (Alaska 1999) (concluding
that pro se appellants failure to identify and apply the precise
legal tests for determining a violation of those constitutional
provisions is not fatal when those tests are well established and
could have been easily applied by the superior court).
14 AS 18.80.220(a) provides, in part:
Except as provided in (c) of this section
[inapplicable here], it is unlawful for
(1) an employer to refuse employment to
a person, or to bar a person from employment,
or to discriminate against a person in
compensation or in a term, condition, or
privilege of employment because of the
persons race, religion, color, or national
origin, or because of the persons age,
physical or mental disability, sex, marital
status, changes in marital status, pregnancy,
or parenthood when the reasonable demands of
the position do not require distinction on
the basis of age, physical or mental
disability, sex, marital status, changes in
marital status, pregnancy, or parenthood;
. . . .
(4) an employer, labor organization, or
employment agency to discharge, expel, or
otherwise discriminate against a person
because the person has opposed any practices
forbidden under AS 18.80.200 18.80.280 or
because the person has filed a complaint,
testified, or assisted in a proceeding under
this chapter . . . .
15 Cf. Leis v. Hustad, 22 P.3d 885, 888 (Alaska 2001)
(giving little weight in property division case to partys trial
testimony about intent regarding transmutation of property
because parties actions during marriage are more probative).
16 See supra note 11. See also Castro, 540 U.S. at 381-82
(noting federal court policy of recharacterizing pro se litigants
motions in order to avoid unnecessary dismissal or
inappropriately stringent application of formal labeling
requirements, or to align substance of pro se motions claim with
its legal basis).
17 Recall that the defendants removed the first state case
to the federal court, where it became Case No. A00-351-CV. The
federal court later remanded Case No. A00-351-CV to the superior
court and retained jurisdiction over Case No. A00-309-CV.
18 DeNardo v. Municipality of Anchorage, 775 P. 2d 515,
517 (Alaska 1989).
19 Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166
(Alaska 1997) (quoting Tolstrup v. Miller, 726 P.2d 1304, 1306
(Alaska 1986)); see also DeNardo v. State, 740 P.2d at 456 (It is
settled that res judicata precludes relitigation by the same
parties, not only of claims raised in the first proceeding, but
also of those relevant claims that could have been raised.).
20 DeNardo incorrectly contends that the dismissal of a
complaint does not affect rights not asserted in the complaint.
It is clear that res judicata, through the doctrine of claim
preclusion, also bars claims that could have been brought in the
first action. See, e.g., Plumber, 936 P.2d at 166.
21 See Tope v. Christianson, 959 P.2d 1240, 1245 (Alaska
1998) (Res judicata does not prevent a debtor from suing on a
cause of action that the debtor expressly reserved for later
adjudication.).
22 Godfrey, 617 P.2d at 8 (quoting State by & Through
State Highway Commn v. Feves, 365 P.2d 97, 102 (Or. 1961)).
23 Id.
24 Tope, 959 P.2d at 1245 (citation omitted) (quoting D &
K Props. Crystal Lake v. Mut. Life Ins. Co., 112 F.3d 257, 261
(7th Cir. 1997)).
25 See DeNardo v. Barrans, 59 P.3d 266, 268 (Alaska 2002)
(barring plaintiff from filing same claims dismissed in federal
court for failure to proceed with trial in state court on res
judicata grounds).
26 See supra note 12. Castros policy against
unintentional waiver of claims through technical pleading defects
by pro se litigants suggests that application of lenient
standards is appropriate when they stipulate to dismiss some, but
not all, of their claims. See Castro v. United States, 540 U.S.
375, 381-82 (2003). We therefore interpret leniently the
stipulation to dismiss.
27 Klosterman v. Hickel Inv. Co., 821 P.2d 118, 123 n.6
(Alaska 1991) (Applying an established rule of contract
construction, we will construe the ambiguity against the party
that supplied the contract.); Wessells v. State, Dept of
Highways, 562 P.2d 1042, 1050 (Alaska 1977) (stating it is
established rule of construction that ambiguities are construed
against the party that supplied and drafted the form).
28 Godfrey, 617 P.2d at 8. See also Alaska Civil Rule
41(a) (Unless otherwise stated in the notice of dismissal or
stipulation, the dismissal is without prejudice. . . .).
29 That DeNardo has not asserted a contemporaneous
understanding that the stipulation specifically preserved his AS
18.80 claim does not preclude an interpretation of the
stipulation as preserving that claim. DeNardo claims he
understood the stipulation more generally as preserving all
claims then pending in federal court.
Because DeNardo, as a pro se litigant, is entitled to a
lenient interpretation of his federal complaint, his
understanding of the stipulation as preserving all the claims
therein encompasses his AS 18.80 claim.
30 See Tru-Line, 52 P.3d at 155.
31 See supra note 12.
32 DeNardo argues in passing that the Alaska Constitution
entitles him to a jury determination of the meaning of his
stipulation with Calista. Article I, section16 of the Alaska
Constitution provides that [i]n civil cases where the amount in
controversy exceeds two hundred fifty dollars, the right of trial
by a jury of twelve is preserved to the same extent as it existed
at common law. But disputes over contract interpretation present
questions of law. See Peterson v. Ek, 93 P.3d 458, 463 (Alaska
2004). As such, they are not submitted to a jury, which decides
questions of fact. The stipulation is a contract. DeNardos
argument is therefore without merit. Furthermore, our
interpretation of the stipulation renders this argument
irrelevant to future litigation in this case.
33 McDowell v. State, 23 P.3d 1165, 1166 (Alaska 2001);
see also Robertson v. Am. Mech., Inc., 54 P.3d 777, 780 (Alaska
2002).
34 Wilkerson v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 993 P.2d 1018, 1021-22 (Alaska 1999);
Wren v. State, 577 P.2d 235, 237 n.2 (Alaska 1978).
1 DeNardo v. Barrans, 59 P.3d 266, 268-69 (Alaska 2002)
(quoting Semtek Intl, Inc. v. Lockheed Martin Corp., 531 U.S.
497, 506 (2001)).
2 See, e.g., McDowell v. State, 23 P.3d 1165, 1166
(Alaska 2001).
3 And this holds true even though DeNardo might have
mistakenly believed that the statutory claim would not be barred
by the stipulated dismissal. For his mistaken belief would at
most have amounted to a unilateral mistake of law, and, even
viewing DeNardos pleadings in the light most charitable to him,
he has failed to allege any compelling justification that would
excuse his ignorance of the law and justify the extraordinary
remedy of relief from judgment on that ground under Civil Rule
60(b). DeNardo undeniably had a right to split the
discrimination claim from his original state claims and file it
in federal court. But by electing to dismiss his state claims
with prejudice, he consented to a judgment that, as a matter of
law, barred all future state claims arising from the same
transaction as the claims he originally filed. DeNardos failure
to understand the legal effects of his stipulation is a mistake
of law, and because ANI did not share in this misunderstanding,
it was a unilateral mistake of law.
4 As DeNardo put it during oral argument before this
court when he summed up his intent in stipulating to the
dismissal, So, what I did is I just dismissed the state tort
claims.
5 See, e.g., Gilbert v. Nina Plaza Condo Assn, 64 P.3d
126, 129 (Alaska 2003).
6 At a minimum, I think that fundamental fairness should
require that both parties be given advance notice of the courts
proposed ruling and an opportunity to address it in supplemental
briefs.
