The full case caption appears at the
end of this opinion. SELYA, Circuit Judge. This litigation crashes on the shoals of res judicata. Becausethe district court correctly apprehended this reality, we affirm its entry ofjudgment in the defendant’s favor. I. BACKGROUND The relevant facts are undisputed. Dr. Peter Boateng, a black man from Ghana, beganteaching accounting at the San Germ�n campus of InterAmerican University (theUniversity) in 1988. Seven years later, the University denied him tenure butextended his probationary term as a professor for an additional year (during whichtime his candidacy was to be reevaluated). After unsuccessfully requestingreconsideration of the tenure denial, Boateng filed suit in the Puerto Rico Court ofFirst Instance (Suit No. 1) on July 31, 1995. In his complaint, he invoked PuertoRico law and alleged breach of contract and discrimination on the basis of race andnationality. On March 16, 1996, Boateng amended his complaint to add an allegation that theUniversity had retaliated against him by investigating charges that he hadplagiarized some of his course materials. Following the completion of discovery anda six-day bench trial, the court entered a judgment in the University’s favor. SeeBoateng v. InterAmerican Univ., No. I PE95-0122 (P.R. Super. Mar. 30, 1998).Boateng’s efforts to undo the judgment — including a motion for reconsideration, anabortive appeal to the Puerto Rico Circuit Court of Appeals, and a petition forcertiorari to the Puerto Rico Supreme Court — were uniformly unavailing. Whilst prosecuting Suit No. 1, Boateng plied a parallel course. On January 19, 1996,after what Boateng apparently considered to be an unfavorable change of venue inSuit No. 1, he filed a second suit in the United States District Court for theDistrict of Puerto Rico (Suit No. 2). The only relevant difference between theamended complaint in Suit No. 1 and the complaint in Suit No. 2 was that the latterincluded a statement of claim under Title VII, 42 U.S.C. �� 2000e to e-17.
[FOOTNOTE 1] OnApril 8, 1996, the University moved for dismissal of Suit No. 2 or, in thealternative, a stay. It attached to its motion an English translation of thecomplaint in Suit No. 1. The district court denied this motion. The University filed another motion to dismiss Suit No. 2 on May 6, 1998, this timearguing that the judgment in Suit No. 1 (a copy of which was attached to the motion)barred further proceedings. In response, Boateng asserted that the judgment was notfinal because, at that moment, the thirty-day appeal period (which he claimed hadbeen tolled by the pendency of his motion for reconsideration) had not run. Thisrebuttal argument collapsed on June 30, when the Puerto Rico Circuit Court ofAppeals dismissed as untimely Boateng’s appeal from the judgment entered in Suit No.1. Boateng’s fallback position was that his federal court case dealt with “mattersdifferent from those of the state court case (Title VII).” The district courtrejected this argument and entered judgment in favor of the University. See Boatengv. InterAmerican Univ., 36 F. Supp. 2d 60 (D.P.R. 1998). This appeal ensued. II. ANALYSIS We review de novo orders granting summary judgment. See Garside v. Osco Drug, Inc.,895 F.2d 46, 48 (1st Cir. 1990). In undertaking such review here, we bifurcate ouranalysis, first addressing a procedural point and then discussing the applicabilityof res judicata in the circumstances of this case. A. Conversion. Boateng posits that the court below effectively converted the University’s secondmotion to dismiss into a motion for summary judgment, expressly relying upon thecomplaint and judgment in Suit No. 1 in reaching its decision. He assigns error,contending that the court failed to furnish him advance notice and an opportunity topresent opposing evidence before venturing outside the four corners of the pleadingsin Suit No. 2. This contention derives from Fed. R. Civ. P. 12(b), which providesthat: If, on a [Rule 12(b)(6)] motion . . . , matters outside the pleading are presentedto and not excluded by the court, the motion shall be treated as one for summaryjudgment and disposed of as provided in Rule 56, and all parties shall be givenreasonable opportunity to present all material made pertinent to such a motion byRule 56. As a preliminary matter, we question whether this case actually involved conversion.After all, a court may look to matters of public record in deciding a Rule 12(b)(6)motion without converting the motion into one for summary judgment. See Watterson v.Page, 987 F.2d 1, 3-4 (1st Cir. 1993). And a court ordinarily may treat documentsfrom prior state court adjudications as public records. See Henson v. CSC CreditServs., 29 F.3d 280, 284 (7th Cir. 1994) (collecting cases). In light of theseprinciples, it is at least arguable that this case does not involve conversion atall. Having raised this point, we conclude that we need not decide it definitively. TheUniversity has not challenged the fact of conversion, and we therefore assume, forargument’s sake, that the court converted the motion. On that assumption, weconsider Boateng’s procedural argument. We have interpreted Rule 12(b) as requiring some type of notice as a conditionprecedent to a court’s conversion of a motion to dismiss into one for summaryjudgment. See, e.g., Collier v. City of Chicopee, 158 F.3d 601, 603 (1st Cir. 1998),cert. denied, 526 U.S. 1023 (1999). Withal, “this circuit does not mechanisticallyenforce the requirement of express notice of a district court’s intention to converta Rule 12(b)(6) motion into a motion for summary judgment. Instead, we treat ‘anyerror in failing to give express notice as harmless when the opponent has receivedthe affidavit and materials, has had an opportunity to respond to them, and has notcontroverted their accuracy.’” Chaparro-Febus v. International Longshoremen Ass’n,Local 1575, 983 F.2d 325, 332 (1st Cir. 1992) (quoting Moody v. Town of Weymouth,805 F.2d 30, 31 (1st Cir. 1986) (per curiam)); see also Rodriguez v. Fullerton TiresCorp., 115 F.3d 81, 83 (1st Cir. 1997) (explaining that “[t]he proper approach toconversion under [Rule 12(b)] is functional rather than mechanical”). Viewed againstthis mise en sc�ne, Boateng’s position is untenable. The documents on which the district court relied were familiar to Boateng. TheUniversity submitted copies of those documents in the course of litigating Suit No.2, and in all events, Boateng obviously possessed copies of both the complaint hehimself had filed in Suit No. 1 and the judgment terminating that action. The motionto dismiss explicitly mentioned the complaint and the judgment, and rendered thecourt’s reliance on those documents readily foreseeable. Furthermore, some sevenmonths elapsed between the service of the University’s second motion to dismiss andthe district court’s decision. During this interval, Boateng filed two responsivepleadings, one of which included a copy of a motion for reconsideration in Suit No.1 (thus impliedly inviting the court to consider the record in that case). The shortof it, then, is that Boateng was familiar with the proffered documents, had ampleopportunity to respond to them, and, in fact, did so. By the same token, he had afull and fair chance to contest the accuracy of the proffered documents, but did notdo so.
[FOOTNOTE 2] That ends the matter. No more was exigible to effect substantial compliance with theapplicable notice requirement. See Collier, 158 F.3d at 603 (explaining that “thenotice requirement [anent Rule 12(b)] can be satisfied when a party receivesconstructive notice that the court has been afforded the option of conversion — aphenomenon that occurs when, for example, the movant attaches to his motion, andrelies on, materials dehors the pleadings”). If failing to announce the conversionentailed error at all — a matter on which we need not opine — the error washarmless. See Chaparro-Febus, 983 F.2d at 332. B. Res Judicata. We turn now to the res judicata issue. In determining the preclusive effect of astate court judgment in federal court — and Puerto Rico is, for this purpose, thefunctional equivalent of a state, see Cruz v. Melecio, 204 F.3d 14, 18 n.2 (1st Cir.2000) — the question is whether courts in the rendering state would ascribepreclusive effect to the judgment. See 28 U.S.C. � 1738; see also Kremer v. ChemicalConstr. Corp., 456 U.S. 461, 466 (1982). For a judgment to have preclusive effect ina subsequent action, Puerto Rico law requires “the most perfect identity between thethings, causes, and persons of the litigants, and their capacity as such.” P.R. LawsAnn. tit. 31, � 3343. Boateng concedes that the two suits involve identical parties,but asseverates that there is no perfect identity of “things” or “causes” betweenthem. This asseveration cannot withstand scrutiny. Puerto Rico courts do not interpret the phrase “perfect identity” literally. SeeCruz, 204 F.3d at 19; Futura Dev. Corp. v. Centex Corp., 761 F.2d 33, 43-45 (1stCir. 1985). For res judicata purposes, “[t]he thing corresponds basically to theobject or matter over which the action is exercised.” Lausell Marxuach v. D�az deY��ez, 3 P.R. Offic. Trans. 742, 745 (1975). The test for identity of “things” iswhether a decision in the second action may contradict the prior adjudication. See A& P Gen. Contractors, Inc. v. Asociaci�n Can�, 10 P.R. Offic. Trans. 987, 998(1981). Similarly, “cause” refers to the main ground or origin of the action. Seeid. It thus becomes apparent that Puerto Rico, though a civil law jurisdiction,follows the general contours of the transactional approach in its res judicatajurisprudence. See Restatement (Second) of Judgments � 24(1) (1982) (explaining thata valid and final judgment extinguishes “all rights of the plaintiff to remediesagainst the defendant with respect to all or any part of the transaction, or seriesof connected transactions, out of which the action arose”). In this instance, the commonwealth court, after considering Boateng’s claims arisingfrom the denial of tenure and the plagiarism investigation, expressly held that “theUniversity fully complied with its contractual responsibilities towards . . .Boateng” and that “the University did not discriminate against . . . Boateng due tohis race, color or nationality.” Boateng v. InterAmerican Univ., No. I PE95-0122(P.R. Super. Mar. 30, 1998). The court also specifically found that Boateng hadcommitted plagiarism. See id. The present action derives from the same nucleus ofoperative facts, and a ruling in Boateng’s favor obviously would contradict theseearlier determinations. We conclude, therefore, that the requisite identity of”things” and “causes” is present. Boateng espouses a contrary view, relying heavily on the fact that Suit No. 2included a Title VII claim whereas Suit No. 1 did not. This reliance is mislaid. Asa general matter, a difference in the legal theories asserted in two suits thatarise from the same transaction (or set of transactions) does not undermine theidentity of causes between them. See Kale v. Combined Ins. Co., 924 F.2d 1161, 1166(1st Cir. 1991). Specifically, under Puerto Rico law, such an “argument mistakes thelegal cause of action for the factual ’cause’ contemplated by Puerto Rico’spreclusion statute: preclusion requires an identity of the latter, not the former.”Baez-Cruz v. Municipality of Comerio, 140 F.3d 24, 30 (1st Cir. 1998). As the PuertoRico Supreme Court has explained, “cause” is “‘the principal ground, the origin ofthe actions or exceptions raised and decided, and it must not be mistaken for themeans of proof nor for the legal grounds of the claims adduced by the parties.’”Lausell Marxuach, 3 P.R. Offic. Trans. at 746 (quoting VIII-2 Jose Maria Manresa,Comentarios al C�digo Civil Espa�ol 301 (6th ed. 1967)). Accordingly, Boateng didnot have a right to bring separate and successive suits on different legal theoriesarising out of a single nucleus of operative facts. To be sure, in Puerto Rico, res judicata operates to preclude only claims that wereor could have been raised in a previous suit.
[FOOTNOTE 3] See Commonwealth v. Sociedad CivilAgricola e Industrial, 4 P.R. Offic. Trans. 546, 554 (1975) (per curiam); MercadoRiera v. Mercado Riera, 100 P.R.R. 939, 949 (1972). Endeavoring to wrap himself inthis exception, Boateng avers that he could not have brought a Title VII claim whenhe commenced Suit No. 1 because he did not receive a right-to-sue letter from theEqual Employment Opportunity Commission (EEOC) until October 24, 1995 (nearly threemonths after he commenced Suit No. 1). This argument fails for two reasons. For one thing, Boateng did not advance this point in the lower court. It is,therefore, procedurally defaulted. “If any principle is settled in this circuit, itis that, absent the most extraordinary circumstances, legal theories not raisedsquarely in the lower court cannot be broached for the first time on appeal.”Teamsters Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1992). Because the record here reflects no sufficiently excusatory circumstances,Boateng has forfeited the right to hawk the unavailability of the right-to-sueletter in this court. For another thing, on facts less defendant-friendly than those of this case, severalcourts have held Title VII claims to be precluded by a prior adjudication eventhough a right-to-sue letter had not been obtained until after final judgment hadentered in the first action. See Heyliger v. State Univ. & Community College Sys.,126 F.3d 849, 854-56 (6th Cir. 1997); Herrmann v. Cencom Cable Assocs., 999 F.2d223, 225 (7th Cir. 1993); Woods v. Dunlop Tire Corp., 972 F.2d 36 (2d Cir. 1992). Afortiori, there is no principled basis for reaching a different result where, ashere, the plaintiff obtained permission to sue from the EEOC while his first suitwas still pending. This conclusion seems particularly well justified because Boateng largely controlledthe timing of the relevant events (for example, he could have sued a few monthslater). More than two years elapsed between his receipt of the right-to-sue letterand the entry of final judgment in Suit No. 1. During that interval, he could easilyhave amended his complaint in Suit No. 1 to include the Title VII claim: statecourts have concurrent jurisdiction over Title VII claims, see Yellow Freight Sys.,Inc. v. Donnelly, 494 U.S. 820 (1990), and leave to amend pleadings in the PuertoRico courts is “freely given when justice so requires,” P.R. R. Civ. P. 13.1.Indeed, Boateng successfully amended his complaint in Suit No. 1 shortly afterreceiving the right-to-sue letter, but elected not to mention Title VII. He has noone to blame but himself for failing to present the Title VII claim to thecommonwealth court. Boateng also asserts that the complaint in Suit No. 2 alleges acts of discriminationand retaliation that were not before the commonwealth court in Suit No. 1, thusdissipating the requisite identity of “things” and “causes.” This assertion isbaseless. We have compared the pertinent materials from the two cases. The sole actof retaliation properly pleaded in Suit No. 2 concerned the plagiarism investigation– an allegation that was covered by Boateng’s amended complaint in Suit No. 1 anddiscussed at length by the commonwealth court in its final judgment. See Boateng v.InterAmerican Univ., No. I PE95-0122 (P.R. Super. Mar. 30, 1998) (findingspecifically that Boateng had committed plagiarism). Boateng may not have beenobligated to bring the retaliation claim at the same time as his other claims, seePleming v. Universal-Rundle Corp., 142 F.3d 1354 (11th Cir. 1998); Herrmann, 999F.2d at 227, but, having done so, he cannot escape the preclusive effect of thecommonwealth court judgment as to this claim. We have one more bridge to cross. Noting that Puerto Rico courts ascribe preclusiveeffect only to judgments that are final and unappealable, see Cruz, 204 F.3d at20-21, Boateng maintains that his appeal from the commonwealth court judgment wasstill pending when the federal district court ruled (and that, therefore, the rulingcannot stand). This argument is unpersuasive. Even if Boateng’s facts are correct –which seems unlikely considering that the Puerto Rico intermediate appellate courtdismissed his appeal as untimely some five months before the federal district courtacted — it is undisputed that the Puerto Rico Supreme Court has now deniedcertiorari, leaving Boateng with no other recourse in the commonwealth courts. Thus,the judgment in Suit No. 1 is now indisputably final and unappealable. We will notengage in the empty gesture of remanding this case for entry of a new order reachingthe same result. See Aoude v. Mobil Oil Corp., 862 F.2d 890, 895 (1st Cir. 1988);cf. Equitable Life Assur. Soc’y v. Porter-Englehart, 867 F.2d 79, 84 n.3 (1st Cir.1989) (refusing to engage in “an elaborate game of ring-around-the-rosy” whereby theparties would end up exactly where they had begun). III. CONCLUSION To recapitulate: (1) the district court’s failure to provide explicit notice that itplanned to convert the motion to dismiss to one for summary judgment, if error atall, was harmless under the circumstances because Boateng received the extrinsicmaterials relied upon by the district court, had ample opportunity to respond tothem, and did not question their accuracy; and (2) the fact that the commonwealthcourt’s judgment in a suit involving identical parties, causes, and things is nowfinal and unappealable confirms the district court’s founded conclusion that resjudicata bars the present action. We need go no further. Boateng had a full bite of the apple — and the choice of thebite was his. He is not entitled to another nibble. :::FOOTNOTES:::
FN1 Boateng failed to obtain tenure at the end of the 1995-96 probationary period. His employment with the University wasterminated on July 31, 1997 (when a final, nonrenewable one-year contract expired). He thereafter attempted to amend hiscomplaint in Suit No. 2 to include allegations of discrimination in respect to these events. The district court denied the motion. Onappeal, Boateng does not assign error to that ruling.
FN2 In his brief, Boateng hints that, had he been given explicit notice of the court’s intent to convert the motion, he would havesubmitted additional evidence in support of his position on the res judicata defense. When pressed at oral argument to elaborate onthat possibility, however, Boateng’s counsel was unable to identify any such evidence.
FN3 The same rule obtains in other jurisdictions that follow the transactional approach. See, e.g., Massachusetts Sch. of Law atAndover, Inc. v. American Bar Ass’n, 142 F.3d 26, 38 (1st Cir. 1998) (applying federal law); Fiumara v. Fireman’s Fund Ins. Cos.,746 F.2d 87, 91 (1st Cir. 1984) (applying New Hampshire law).
Boateng v. InterAmerican University, Inc. United States Court of Appeals for the First Circuit Peter A. Boateng, Plaintiff, Appellant, v. Interamerican University, Inc., Defendant, Appellee. No. 99-1230 Appeal From The United States District Court for the District of Puerto Rico [Hon. Carmen Consuelo Cerezo, U.S. District Judge] Filed: April 18, 2000 Before: Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Lipez, Circuit Judge. Counsel: Marybeth Holland for appellant. Alberto G. Estrella, with whom William Estrella Law Offices, PSC was on brief, forappellee.
