18 Fair empl.prac.cas. 1540, 18 Empl. Prac. Dec. P 8730 Walter Martin v. New York State Dep't of Mental Hygiene, Dr. Stuart Keill, Reg'l Dir., 588 F.2d 371 (2d Cir. 1978). · Go Syfert
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18 Fair empl.prac.cas. 1540, 18 Empl. Prac. Dec. P 8730 Walter Martin v. New York State Dep't of Mental Hygiene, Dr. Stuart Keill, Reg'l Dir., 588 F.2d 371 (2d Cir. 1978). Cases Citing This Book View Copy Cite
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cited 3× by 2 distinct cases · “A showing that a defendant had actual notice of the lawsuit is insufficient to defeat a motion to dismiss.”
225 citation events (101 in the last 25 years) across 23 distinct courts.
Strongest positive: William E. Shaffer, Jr. v. Dr. Paul Tinsley and Guthrie Lourdes Medical Center (nynd, 2026-01-23)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (quoted) William E. Shaffer, Jr. v. Dr. Paul Tinsley and Guthrie Lourdes Medical Center
N.D.N.Y. · 2026 · quote attribution · 1 verbatim quote · confidence low
a for plaintiff-appellant: harold jean-baptiste, pro showing that the defendant has had actual notice of the lawsuit se, rosedale, ny. is not sufficient to bar a motion to dismiss
discussed Cited as authority (quoted) Jean-Baptiste v. United States Department of Justice
2d Cir. · 2024 · quote attribution · 1 verbatim quote · confidence low
a showing that the defendant has had actual notice of the lawsuit is not sufficient to bar a motion to dismiss
discussed Cited as authority (quoted) Escano v. Concord Auto Protect, Inc.
D.N.M. · 2021 · quote attribution · 1 verbatim quote · confidence low
a showing that the defendant has had actual notice of the lawsuit is not sufficient . . .
discussed Cited as authority (quoted) Richardson v. Manhattan Transit Authority NYC Headquarters
S.D.N.Y. · 2019 · quote attribution · 1 verbatim quote · confidence low
howing that the defendant has had actual notice of the lawsuit is not sufficient .
discussed Cited as authority (quoted) Cassano v. Altshuler
S.D.N.Y. · 2016 · quote attribution · 1 verbatim quote · confidence low
a showing that a defendant had actual notice of the lawsuit is insufficient to defeat a motion to dismiss.
cited Cited as authority (rule) Burgos v. Department of Children & Families
D. Conn. · 2000 · confidence medium
Martin v. New York State Department of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978).
discussed Cited as authority (rule) Douglas E. Kampfer v. County of Fulton, Fulton County Court and Richard Giardino, Fulton County District Attorney, His Agents and Employees
2d Cir. · 1997 · confidence medium
Although courts should not dismiss a complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Conley v. Gibson, 355 U.S. 41, 45-46 (1957), "a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6)." Martin v. New York State Department of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978).
discussed Cited as authority (rule) Gant v. Wallingford Board of Education
2d Cir. · 1995 · confidence medium
The complaint in Martin “stated only that •the defendants had discriminated against [Martin] on the basis of race between August 1974 and June 1975 by denying him the authority, salary, and privileges commensurate with his position.” Id. at 372 (emphasis added).
discussed Cited as authority (rule) Gant v. Wallingford Board of Education
2d Cir. · 1995 · confidence medium
In dismissing plaintiffs' complaint, the district court relied on the following passage from Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978) (per curiam): "It is well settled in this Circuit that a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6)." We conclude that, under this standard, the complaint survives scrutiny under Rule 12(b)(6). 25 The complaint in Martin "stated only that the defendants had discriminat…
cited Cited as authority (rule) Philippeaux v. North Central Bronx Hospital
S.D.N.Y. · 1994 · confidence medium
Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir.1994) (quoting Martin v. New York State Department of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978) (per curiam)).
cited Cited as authority (rule) Syed Saifuddin Yusuf v. Vassar College
2d Cir. · 1994 · signal: cf. · confidence medium
Cf. Martin, 588 F.2d at 372; Albert, 851 F.2d at 572 .
discussed Cited as authority (rule) Yoonessi v. State University of New York
W.D.N.Y. · 1994 · confidence medium
Alfaro Motors, Inc. v. Ward, 814 F.2d 883 , 887 (2d Cir.1987) (complaint alleging denial of “prompt administrative hearing” insufficient under § 1983); Martin, supra, 588 F.2d at 372 (complaint alleging denial of salary and privileges commensurate with his position because of his race insufficient under Title VII).
discussed Cited as authority (rule) Yusuf v. Vassar College (2×)
S.D.N.Y. · 1993 · confidence medium
Id.; Martin, 588 F.2d at 372; Dartmouth Review, 889 F.2d at 19 ; Jafree, 689 F.2d at 643 .
cited Cited as authority (rule) Williams v. Greendolf, Inc.
S.D.N.Y. · 1990 · confidence medium
Similarly, in Martin v. New York State Dept. of Mental Hygiene, 588 F.2d at 372, it appears that no facts supporting such an inference were alleged.
discussed Cited as authority (rule) Apple v. Jewish Hospital
2d Cir. · 1987 · confidence medium
See American Telephone & Telegraph Co. v. Merry, 592 F.2d 118, 126 (2d Cir.1979); Martin v. New York State Department of Mental Hygiene, 588 F.2d 371, 373 (2d Cir.1978) (per curiam); see also Sieg v. Karnes, 693 F.2d 803, 807 (8th Cir.1982); Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982).
discussed Cited as authority (rule) Apple v. Jewish Hospital & Medical Center
2d Cir. · 1987 · confidence medium
See American Telephone & Telegraph Co. v. Merry, 592 F.2d 118,126 (2d Cir.1979); Martin v. New York State Department of Mental Hygiene, 588 F.2d 371, 373 (2d Cir.1978) (per curiam); see also Sieg v. Karnes, 693 F.2d 803, 807 (8th Cir.1982); Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982).
cited Cited as authority (rule) Grosser v. Commodity Exchange, Inc.
S.D.N.Y. · 1986 · confidence medium
Martin v. New York State Department of Mental Hygiene, 588 F.2d 371, 373 (2d Cir.1978) (per curiam).
discussed Cited as authority (rule) Johnson v. New York City Transit Authority
E.D.N.Y · 1986 · confidence medium
Since the complaint contains only vague, conclusory allegations of discrimination, and “set[s] forth no facts upon which a Court could find a violation of the Civil Rights Acts, [the complaint] fails to state a claim under 12(b)(6).” Martin, 588 F.2d at 372.
discussed Cited as authority (rule) Obradovich v. Federal Reserve Bank of New York (2×)
S.D.N.Y. · 1983 · confidence medium
Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978); Birnbaum v. Trussell, 347 F.2d 86 (2d Cir.1965); Powell v. Workers Compensation Board of the State of New York, 327 F.2d 131 (2d Cir.1964); Morpurgo v. Board of Higher Education in the City of New York, 423 F.Supp. 704, 714 (S.D.N.
discussed Cited as authority (rule) Corby v. Warden
S.D.N.Y. · 1983 · confidence medium
In Martin v. New York State Department of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978) (per curiam), the court observed that “[i]t is well settled in this Circuit that a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6).” (Citing Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 703 (2d Cir.) (per curiam), cert. denied, 409 U.S. 883 , 93 S.Ct. 173 , 34 L.Ed.2d 139 (1972)).
cited Cited as authority (rule) Jackson v. Hayakawa
9th Cir. · 1982 · confidence medium
State Dept. of Mental Hygiene, 588 F.2d at 373.
discussed Cited as authority (rule) Jackson v. Hayakawa
9th Cir. · 1982 · confidence medium
State Dept. of Mental Hygiene, 588 F.2d at 373. 14 Plaintiffs claim jurisdiction over defendants Hayakawa, Dumke, Reagan, Duerr and Dollard, and the trustees both in their individual and official capacities because these defendants were either properly served or, if not properly served, they waived any defect in service or personal jurisdiction by appearing generally and by not raising these defenses in earlier proceedings. 1.
discussed Cited "see" Innovative Sports Marketing, Inc. v. Aquarius Fuente De Soda, Inc.
E.D.N.Y · 2025 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 373 (2d Cir. 1978); see also Michaelson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 709 F. Supp. 1279, 1282 (S.D.N.Y. 1989) (stating that proper service on a defendant of a summons and complaint is a prerequisite to personal jurisdiction).
discussed Cited "see" Holliman v. ASA College, Inc.
E.D.N.Y · 2024 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 373 (2d Cir. 1978); see also Michaelson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 709 F. Supp. 1279, 1282 (S.D.N.Y. 1989) (stating that proper service on a defendant of a summons and complaint is a prerequisite to personal jurisdiction).
discussed Cited "see" Everyday People NYC LLC v. Ali
E.D.N.Y · 2024 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 373 (2d Cir. 1978); Michaeison v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 709 F. Supp. 1279, 1282 (S.D.N.Y. 1989) (stating that proper service on a defendant of a summons and complaint is a prerequisite to personal jurisdiction); Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (holding that “{nJeither actual notice . .. nor simply naming the person in the caption of the complaint . . . will subject defendant[] to personal jurisdiction if service was not made in substantial compliance with Rule 4”).
discussed Cited "see" Sewell v. Molloy University
E.D.N.Y · 2019 · signal: see · confidence high
See E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (“Since Twombly and Iqbal, Swierkiewicz’s continued vitality has been an open question in this Circuit.”). motion to dismiss.” Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (citing Martin, 588 F.2d at 372).
discussed Cited "see" Minto v. Molloy University
E.D.N.Y · 2019 · signal: see · confidence high
See E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (“Since Twombly and Iqbal, Swierkiewicz’s continued vitality has been an open question in this Circuit.”). motion to dismiss.” Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (citing Martin, 588 F.2d at 372).
discussed Cited "see" Bacchus v. Molloy University
E.D.N.Y · 2019 · signal: see · confidence high
See E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (“Since Twombly and Iqbal, Swierkiewicz’s continued vitality has been an open question in this Circuit.”). motion to dismiss.” Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (citing Martin, 588 F.2d at 372).
cited Cited "see" Manbeck v. Katonah-Lewisboro School District
S.D.N.Y. · 2006 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Westchester Day School v. Village of Mamaroneck
S.D.N.Y. · 2005 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Rahl v. Bande
Bankr. S.D.N.Y. · 2005 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Manos v. Geissler
S.D.N.Y. · 2005 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Neshewat v. Salem
S.D.N.Y. · 2005 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" In Re Flag Telecom Holdings, Ltd. Securities Litigation
S.D.N.Y. · 2005 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" In Re Atlas Air Worldwide Holdings, Inc. Securities Litigation
S.D.N.Y. · 2004 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" In Re Flag Telecom Holdings, Ltd. Securities Litigation
S.D.N.Y. · 2004 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Timmons v. City of Hartford
D. Conn. · 2003 · signal: see · confidence high
See Martin v. New York State Dep’t. of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Traffix, Inc. v. Herold
S.D.N.Y. · 2003 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Ingrassia v. County of Sullivan, New York
S.D.N.Y. · 2003 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Atkins v. County of Orange
S.D.N.Y. · 2003 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Fieldcamp v. City of New York
S.D.N.Y. · 2003 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Town of Haverstraw v. Columbia Electric Corporation & Haverstraw Bay, LLC
S.D.N.Y. · 2002 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Smith v. Mitlof
S.D.N.Y. · 2002 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Faulkner v. Verizon Communications, Inc.
S.D.N.Y. · 2002 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Metrokane, Inc. v. Wine Enthusiast
S.D.N.Y. · 2002 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Rodriguez v. Beechmont Bus Service, Inc.
S.D.N.Y. · 2001 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" In Re European Rail Pass Antitrust Litigation
S.D.N.Y. · 2001 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Faulkner v. Verizon Communications, Inc.
S.D.N.Y. · 2001 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Lyde v. New York City
S.D.N.Y. · 2001 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
cited Cited "see" Dean v. Westchester County District Attorney's Office
S.D.N.Y. · 2000 · signal: see · confidence high
See Martin v. New York State Dep’t of Mental Hygiene, 588 F.2d 371 , 372 (2d Cir.1978).
Retrieving the full opinion text from the archive…
18 Fair empl.prac.cas. 1540, 18 Empl. Prac. Dec. P 8730 Walter Martin
v.
New York State Department of Mental Hygiene, Dr. Stuart Keill, Regional Director
346.
Court of Appeals for the Second Circuit.
Dec 11, 1978.
588 F.2d 371
Published
4 passages pin-cited by 4 cases
Pinpoint authority: #17,553 of 633,719
Citer courts: S.D. New York (2) · Second Circuit (1) · D. New Mexico (1)

588 F.2d 371

18 Fair Empl.Prac.Cas. 1540, 18 Empl. Prac.
Dec. P 8730
Walter MARTIN, Plaintiff-Appellant,
v.
NEW YORK STATE DEPARTMENT OF MENTAL HYGIENE, Dr. Stuart
Keill, Regional Director, Defendants-Appellees.

No. 346, Docket 78-7363.

United States Court of Appeals,
Second Circuit.

Argued Dec. 8, 1978.
Decided Dec. 11, 1978.

Frederick C. Hayes, New York City, for plaintiff-appellant.

Judith T. Kramer, Asst. Atty. Gen. of N. Y., New York City (Louis J. Lefkowitz, Atty. Gen. of N. Y., New York City, of counsel), for defendants-appellees.

Before KAUFMAN, Chief Judge, SMITH and VAN GRAAFEILAND, Circuit Judges.

PER CURIAM:

[*~371]1

Walter Martin was appointed Acting Director of the Manhattan Development Center (MDC) in 1974 by Dr. Stuart Keill, Regional Director of the New York State Department of Mental Hygiene. Martin, who is black, took disability leave from June 1975 to May 1976, and upon his return to work was appointed Chief of Treatment Services at Willowbrook, a position he still holds.

2

In the fall of 1975, while on leave from his position at the MDC, Martin filed an employment discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq., against Keill and the Department of Mental Hygiene. Martin's complaint stated only that the defendants had discriminated against him on the basis of race between August 1974 and June 1975 by denying him the authority, salary, and privileges commensurate with his position.[1] He also alleged that the discrimination was continuing, and accordingly sought injunctive relief as well as money damages.

3

The defendants moved to dismiss the complaint against the Department of Mental Hygiene for failure to state a claim under Fed.R.Civ.P. 12(b)(6). They also moved pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(5) to dismiss the complaint against Keill on the grounds that the district court lacked personal jurisdiction, and that Keill had never been served with the summons and complaint. Judge Pierce granted these motions, and this appeal followed.

4

It is well settled in this Circuit that a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6). Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 703 (2d Cir.) (Per curiam ), Cert. denied, 409 U.S. 883, 93 S.Ct. 173, 34 L.Ed.2d 139 (1972). In Avins v. Magnum, 450 F.2d 932 (2d Cir. 1971), for example, we ruled that the plaintiff's allegation that a law school had failed to hire him because of his political beliefs was wholly conclusory. Similarly, we have held that a mere statement that plaintiff was dismissed from his job because of his race failed to state a claim. Birnbaum v. Trussel, 347 F.2d 86 (2d Cir. 1966). Since Martin has alleged only that he was denied the perquisites of his position because of his race, his suit falls squarely within the rule established in this line of cases. We affirm Judge Pierce's order dismissing the complaint against the Department for failure to state a claim, without prejudice to Martin's right to file an amended complaint.[2]

5

The parties agree that Dr. Keill, who is no longer an employee of the Department, has never been served with the summons and complaint as Fed.R.Civ.P. 4 requires. Martin contends, however, that Dr. Keill had actual notice of the suit, and that counsel for the defendants refused to provide him with Dr. Keill's address. He also maintains that because Keill agreed to be represented by the State Attorney General, he has waived the right to demand compliance with Rule 4. We find this argument to be meritless.

[*371]6

Absent a waiver, Rule 4 mandates that the defendant be served with the summons and complaint personally, or in accordance with one of several prescribed alternatives. A showing that the defendant has had actual notice of the lawsuit is not sufficient to bar a motion to dismiss under Rule 12(b)(2). See Di Leo v. Shin Shu, 30 F.R.D. 56 (S.D.N.Y.1961); 2 Moore's Federal Practice P 4.11(1), at 4-115 to 4-116 (2d ed. 1978).

7

Nor can Martin plausibly contend that Dr. Keill waived this requirement and submitted to the jurisdiction of the district court, merely because Keill allowed the Attorney General to raise in that forum the defenses of lack of personal jurisdiction and insufficiency of service of process. Rule 12(b) was designed to allow a moving party to challenge the court's jurisdiction over his person or the insufficiency of service of process without incurring the very consequence Martin seeks to impose on Keill here. See Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 490 (5th Cir. 1974); Lynn v. Cohen, 359 F.Supp. 565, 566-67 (S.D.N.Y.1973); 5 Wright & Miller, Federal Practice & Procedure § 1344 (1969). Since Keill invoked these defenses in timely fashion, and the parties agree that he was never served, Judge Pierce correctly dismissed the complaint against him.[3]

[*~372]8

Accordingly, the judgment of the district court is affirmed.

1

Martin had previously filed unsuccessful complaints with the State Division of Human Rights and with the Federal Equal Employment Opportunity Commission. He appended to his complaint his EEOC affidavit, which seems to allege that Keill vengefully nullified a permanent civil service grade increase to which he was entitled

2

We note in passing that the trial judge overlooked some recent law in ruling that the Eleventh Amendment bars Martin from suing the State and Dr. Keill (in his official capacity) for damages. In Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), the Supreme Court held that Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), did not prohibit damage suits against the states for violations of Title VII. The rationale for this conclusion was that since the 14th Amendment is itself a substantive limit on state authority, Congress may, under the enforcement power granted by Section 5, provide for suits against the states to vindicate interests protected by the Amendment even when damages will be paid directly from the state treasury

For an enlightening theoretical explication of this concept, which antedates Bitzer, see Tribe, Intergovernmental Immunities in Litigation, Taxation and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 Harv.L.Rev. 682, 683-99 (1976).

3

A dismissal for failure of service of process, of course, has no Res judicata effect. See Thomas v. Furness, Ltd., 171 F.2d 434 (9th Cir. 1948), Cert. denied, 337 U.S. 960, 69 S.Ct. 1522, 93 L.Ed. 1759 (1949)