Gilles v. Ware

GILLES, Appellant, Gerald J. WARE, Appellee.

Clifton

No. 89-CV-1436. Appeals.

District of Columbia

Argued March

Decided Oct. Reilly reasons,

Judge indi- for different separate opinions. cated their FERREN, Judge, concurring Associate dissenting part: part and follow, particular For reasons that IV., grant in Part I reverse would summary and remand the case judgment trial. I.

A. appeals from a Appellant Gilíes constitutional, civil judgment rejecting his rights, negligence claims on the and ground they barred the doc- were (claim preclusion). trine of res Appellant’s appellee suit arose out negligent placement allegedly Ware’s record, points on result- appellant’s driver’s suspension li- ing wrongful his cense and loss of livelihood as his ultimate The issues on are a taxicab driver. jurisdiction (1) had whether the trial court appel- when preclusion to decide issue administrative rem- pursue lant failed to revocation; (2) edy for if there his license jurisdiction, judicata pre- res whether negli- pursuing cluded court1 after dismiss- gence claim in “state” D.C., Kearney, Washington, P. Edward and al on the merits of his constitutional appellant. court, rights in federal when civil claims McDonald, Counsel, Corp. Asst. Susan S. joined negligence Sr., Reid, Corp. Herbert O. whom theory recovery claim as an alternative filing, time of Charles Counsel at the and action, invoking the court’s the federal Reischel, Counsel, Deputy Corp. L. Wash- jurisdic- pendent discretionary exercise D.C., appellee. ington, on the brief for were tion; (3) ordinarily even failure to of a invoke apply would WAGNER, FERREN and Before jurisdiction, court’s REILLY, Judges, and Associate Senior apply whether does when Judge. summarily dismissed federal claim and, consequence, the fed- as a before trial PER CURIAM: have eral court would declined presumably (4) pendent jurisdiction; Court is exercise its any event, analysis II- whether Ware in Parts affirmed based judicata by opinion, right to invoke res Judge FeRREn’s which waived the III. of to, Wagner and, consenting least further, expressly on either Judge joins based in, appellant’s Wagner implicitly acquiescing deci- the result reached of the District of Colum- using terms "state” or “state” 1. When course, referring, of Columbia Code. opinion, we are bia or the District in this law appellee’s prima tion facie defense. prosecute sion to his federal and state to rebut consequence, As a I believe that separately. claims can as a matter of law be said WagneR conclude, concurs, acquiesced appellant’s claim-splitting be- the trial court had over appellant object cause he failed to when appellant the negligence dropped his tort claim from his federal required to exhaust rem- administrative present complaint in to file the tort order edies; (2) split appellant improperly his judgment The action in Court. negligence cause of action because the accordingly be reversed and the should out of same factual trans- arose the case for trial. remanded lawsuit, the gave action that rise to and could the federal court have exercised B.

pendent jurisdiction (negli- over the state claim; (3) ordinarily, gence) and under In driver in April appellant, a taxi circumstances, these res would Columbia, a notice the District received lawsuit, bar the unless the from the Bureau of Motor Vehicles Servic- defendant has waived the benefit of the (BMVS)proposing his driver’s es to revoke against claim-splitting explicitly rule either driving his record showed license because implicitly. or totalling points.2 The traffic violations Wagner Judge specifically, hearing More and I in appellant notice informed of a majority agree significant the proposed on two is- three weeks. revocation First, problems hearing, sues. inherent in May avoid At con- “claim-splitting,” party who files a claim he tended that accumulated points. hearing federal court should invoke that court’s ruled examiner join against appellant’s and in the federal him and license revoked hearing. day Appellant all theories of relief under state did on the arising law out appeal of the same transaction. his the examin- right not exercise Second, litigant fails so Appeals who to do and Board. er’s decision an 40-632, (1990); attempts bring later claim in D.C. -634 Code §§ 3014.1, 1004.1, (1987); state court will find the state claims barred 3014.9 DCMR §§ by (A) unless the federal court Motor v. Bureau Vehicle Ser- Kuflom vices, (D.C.1988). clearly has indicated it would not have ex- Four (B) revocation, hearing pendent jurisdiction, days its ex- ercised after the party seeking rely on res has aminer issued restricted driv- express him implied authorizing operate waived it consent. er’s his license Monday through Saturday, from 9:00 taxi WagneR part company, and I how- p.m.3 a.m. to 7:00 ever, appellee over whether has stated a later, May appellant’s prima supporting year facie his motion for One the Administrator judicata. a letter to based counsel wrote Wagner Systems Administra- Transportation concludes has case, appellant’s him rec- prima ap- asking stated that facie and that tion to review pellant it. to overturn the revocation. failed rebut conclude that ord and responded appellant, opposing judgment, the Administrator June in error sufficiently produc- has that “this revocation was issued met burden facts, card account see revoked hacker's identification For more detailed 2. Touchstone, Gilíes, F.Supp. 342-43 Gilles for nine months. See (D.D.C.1987). place- Appellant that the erroneous contends points license the 44 on his driver’s ment of Appellant appeared separate proceed also resulting of his contribut- revocation license period ings during this before the Hacker’s Li ed Board decision to revoke to the Hacker’s Appeal complaints pas address cense sengers Board to This, says, card. de- hacker’s identification August had filed him. ultimately prived re- him his livelihood and hearings after court, to this several applica- of his sulted in the March 1985 denial Commission, Appeals Gilles Hacker’s citizenship. tion for United States (June 29, 1984), No. the Hacker’s Board later, years had been points since are not assessed until a mov- Two after lifted, answer, asserting adjudicated. infraction is Your filed his ing traffic suspended client should been the state claim was barred ” judgment citing time for unsatisfied traffic infractions.... federal court Gilles v. later, He voided the revocation and a No- issued months Touchstone. Six Novem Proposed Suspension. August By 17, 1989, granted tice of Superior Court ber points the 44 had been summary judgment, removed motion driving record. ruling precluded “plaintiff’s prior federal court July suit in On same cause of action.” United States Court for the Dis against a trict of Columbia number of Dis II. (the defendants”) trict officials “District Appellee the alleging argues Ware for first that their inaccurate maintenance Reilly agrees, time on appeal, of his driver’s license record had violated rights appellant’s appeal li the and constituted that failure sus his constitutional bel, the pension infliction of dis license to De intentional emotional his driver’s Board, tress, partment Transportation Appeals negligence. He $4.5 demanded (1990), damages. Appellant’s D.C. barred his pleading million in see Code 40-631 § the recognized “pen negligence the federal in court under doc that court had claim jurisdiction requiring to consider trine exhaustion of administra dent other claims Accordingly, the same tive con which arise out of set of facts as remedies. 1985, tends, the trial court’s' the federal claims.” we should sustain December however, appellant’s filed an the appellant amended com dismissal of jurisdic plaint alleging only ground the due that the trial court lacked constitutional It process dropping negligence tion over claim. would claim and all state law August not—and should not— By claims. all defendants follow we need except Ware, agree We judicata. dismissed reach the issue of res had been Clifton responsible supervisor physical for the exhaustion administrative BMYS apply appel ly entering points appel incorrect remedies onto doctrine were claim, negligence the trial court driver’s record. On lant’s lant’s November granted jurisdiction. not D.C. the federal court the Dis would See Code (1987), The 1-1510 40-635 ex judgment, trict’s motion for con §§ however, motions, doctrine, not cluding apply haustion does stipulated from the facts, materials here. and other of record that genuine triable

there was no issue of mate Reilly that one “who reasons suf- Touchstone, rial fact. See Gilles fers harm failure to own (D.D.C.1987). challenged decision he ar- could have —and Meanwhile, guably prevented standing to April no re- —has Superior alleging damages cover in a trial court for col- had filed suit Court availing “negligently consequences had or in lateral of not him- that Clifton Ware legal rights.” of his at 555. The [appellant’s] constitutional and self Post violation rights placed points [appellant’s] appellant’s damages, issue of who caused civil Record_ result, however, from the issue of [appel- As is distinct Driver’s employment Superior subject jurisdiction taxi- matter was denied as a Court’s lant] citizenship.”4 may very refused to hear the It well be that driver and was case. cab pursue in dam- an administra- Appellant $4.5 demanded million failure month, appellee remedy Ware tive at the time his license was ages. Within requesting suspended for” cause of stay a motion of these was a “but damages See, pending alleges. e.g., proceedings outcome McCord v. Green, (D.C.1976) granted. The 362 A.2d 725-26 federal lawsuit. original which he Appellant did not include the claims for libel had filed in his complaint. distress and intentional infliction emotional money damages ing his for (discussing conse- doctrine of avoidable Goode v. Antioch Universi See The quences). appellee. factual cause however, (D.C.1988) (no is relevant to the damages, n. 5 ty, juris- legal Court’s question requirement when exhaustion negligence action for a to hear a diction damages in admin money could receive remedy.5 tort District of proper appeal).8 istrative filing appel initially for forum Columbia Superi- filed a Appellant has initially was the negligence lant’s damages arising appel- Miller v. negligent acts —a claim over which Court. lee’s Cf. Columbia, (D.C.1991) Appeals Board would not have specifically, jurisdiction. More (“ characteristic’ dominant § ‘[T]he type of relief that has not asked for belong ‘they in court’ actions Appeals Board’s within the indepen such of action ‘exist causes grant; example, remove the legal other or administrative dent of record, driving reinstate his points from his matter of available as a relief that license, any monetary penal- or set aside enforceable judicially are They law. ... ” (1990). The ties. D.C. Code omitted, (citation em instance.’ first only authorizing Appeals statute Board Felder Ca original) (quoting phasis permits that Board to review decisions 2302, 2312, 131, 148, 108 S.Ct. sey, 487 U.S. hearing to consider examiner and (1988))). 101 L.Ed.2d record; it does not allow established failure to appellant’s possible Although negligence agency Board to hear claims of any dollar mitigate damages may reduce damages agency or award caused recover, this has is entitled to amount he (1990);6 18 See D.C. error. Code 40-633 § question nothing with the antecedent to do conclude, (1987).7 ac- DCMR 3014.4 We § The of causation and jurisdiction. issue cordingly, that there was no administrative to the trier fact.9 damages fil- be left remedy appellant to exhaust before should 5. It is for the ages, when the examiner or errors. license, necessarily duty. than otherwise occurred. ther Appeals license, peals argue parties, were overturned. express no money tween license revocation and D.C.Code Appellant’s before Each ful conclusions found find, his license to the from any mitigated if and set aside Board had these issues at trial —issues which His failure to any. damage damages and the Board had restored his license any duty it on the record and shall hold unlaw- had a course, might proximate relieve opinion parties damages We 40-633 if board shall review each his right damages might have been fur- note in accrued not have been made whole would have to find and restored the—if later Appeals admitted pursue to be: cause of argue, issued appeal passing action or during But even if the have Board, from appellant’s reads negligence and the factfinder restoration. The appealed appellant’s correct him restricted been opportunity right that, although responsibility the date it findings suspension part: mitigated does not his and the driver’s caused earlier not a dam- own Ap- be- we 7. 8. ment of exhaustion haust would Bldg. S.Ct. Illinois Bell tempt by appellant before been futile. heard tional we feel event ing damages. administrative to restore license revocation We also 18 DCMR 3014.4 Because law; The the record of peals board. cretion or otherwise reverse, hearing examiner. to this assumed (1) Arbitrary, (5) 408, 410, Ass'n, argument on Board shall Appeals compelled to address Unsupported note remand, ^[******] Appeals appellant’s Telephone § Board and be futile.” it well appeal 70 L.Ed. 747 A.2d administratively appealed Reilly capricious, an abuse and the Reilly appellant’s Board proceedings exists if opportunity to bring (1987) reads: modify any decision of a Co., license, not in accordance with settled that “no substantial would, his license premises reasons Apartment & 210 U.S. could not Appeals his have the (1926)). failure negligence (citing “he argument therefore, before attempt to Board failed his 587, 591, evidence in mitigate his could have revocation, have been to take an power Smith v. jurisdic- require- Any at- Office relat- dis- ap- ex- short, Appeals complaint because the Board did but withdrew the claims jurisdiction provide filing complaint. not have tort his amended federal seeks, remedy appellant therefore, question presented, now the exhaus- The applicable, tion doctrine is not pursue and the Su- whether failure to perior appel- Court has to hear state claim in federal court—and the result- lant’s claim. ing split of his cause of action between

federal and state forums—now forecloses a III. second, proceeding because the feder- disposition. al has rendered a final actions, Appellant separate reflect- Jenkins, See Smith v. 562 A.2d ing legal theories, different in the federal (D.C.1989). District Court and in the District of Colum- complaints, bia Both Court. how- After a valid final ever, concerned the same transaction: judicial proceeding, of a merits the doctrine assignment points of 44 Ware’s erroneous (claim preclusion) of res absolute driver’s record between ly parties relitigating bars the same April May allegedly causing ap- (and, generally, any the same claim pellant employment to lose his as a taxicab raised) that should have been a subse driver opportunity and his for United quent lawsuit. See United States v. Int’l citizenship. supra States note 3. Co., Bldg. 345 U.S. 73 S.Ct. requested Each also the same denied, reh’g 97 L.Ed. damages relief: million in $4.5 and such 978, (1953); 97 L.Ed. 1392 equitable appro- relief as the court deemed Center, Holle, Washington Medical Inc. v. priate. only significant differences be- (D.C.1990); complaints tween the were their theories of Bros., Inc., Henderson v. Snider recovery: rights constitutional and civil (D.C.1981) (en banc). This doc complaint, claims in the amended federal dismissals, generally trine extends to to constitutional, negligence, and and judgments, civil judgments and to rights claims in the court com- upon a verdict after trial. Su See plaint. moreover, Appellant, op- 41(b) (unless per.Ct.Civ.R. specifies had the portunity allege otherwise, (negligence) the state operates adjudica dismissal claim in his federal by asking the tion on the merits unless dismissal occurs pendent court to jurisdiction. jurisdiction exercise In for lack of join or failure to a fact, appellant 19); did so in party his initial federal under Rule Stutsman v. Kaiser judicial by filing petition days required

obtained redress a 15 from the date of the hear- decision, Appeals] pursuant review ing the Court of [in examiner's revocation id. at 1-1510, accompanied by 1042.1, D.C.Code Appeals § a motion could have directed the § Board stay agency order. See v. District permitted timely to documents that would have Kuflom Services, Columbia Motor Vehicle A.2d gave 543 official notice of the mistake that rise to of 340, 342, (D.C.1988).” fact, 343-46 Post at 47. This his license revocation. it is unclear to approach requires speculation. undue appellant what extent had access to his official Reilly appears argue driving hearing. Carpen- record at his initial Board, negligence Adjudication Appeal should be relieved from his admitted ter v. D.C. Traffic (D.C.1987), should have known he had a 530 680 we noted that the hear- right appeal ing only computerized the revocation of his license and examiner access to stay printout Carpenter’s to move for a of that revocation. But even traffic offenses and that “computer printout hearing if had filed an administrative relied on Appeals stay pending and asked the Board for a examiner was not offered in evidence at the difficult, appeal, hearing petitioner it would have been if not im- nor shown to at time_” possible, reopen to have caused the Board to Id at Under such circum- driving scope presumably official record. The Board’s true for this case—it is not stances — clear how, moving Ap- review is limited to "review of each case before for a from the and, 40-633, court, supra peals necessary, it on the record." D.C.Code Board § from this added). (1990), (1987); (emphasis regulations per- note 6 The see §§ D.C.Code 40-635 1-1510 1042.3, mit enhancement of this record official no- 18 DCMR § could have effec- files, 1035.1-.2, tively challenged accuracy tice of BMVS see 18 § DCMR of his official problematic driving but it is at best to assume that record and thus saved himself from appellant, discovery damages by appellee’s negligence. without formal and within caused

539 367, Plan, 25, must therefore 370 Id. at comment f. We Found. Health 546 A.2d § in a (D.C.1988) (judgment inherent in favor of be alert limitation of con jury pendent jurisdiction after verdict survival/loss over federal court’s wrongful precluded sortium action later evaluating impact state claims facts); death based on same Scholl action litigation. this federal court decision on 352, Tibbs, (D.C.1944)(judg v. argues Appellant that because and tenant court for ten ment landlord his state law federal court could entertain trial, hearing, ant after but without formal by exercising pendent jurisdic only claims subsequent tion, pendent jurisdiction is and because relief); same Prakash v. American Uni uncertain, discretionary and it is unfair 75, 82-83, U.S.App.D.C. versity, 234 expect joined him to his state theories have 1174, (1984) (summary judg F.2d complaint. can relief in the federal We ruling is ment on merits and bars subse Ordinarily, does agree. a federal court action); quent 10 C. A. Miller Wright, jurisdiction claims based not have over Kane, M. Federal Procedure and Practice diversity complete of citi state law unless 584-85, (1983) § § zenship parties. exists between Judg (same); (Second) Restatement (1966); Indianapolis U.S.C. § g (same).10 19 comment ments Bank, 62 S.Ct. Chase Nat’l U.S. A final on the merits 15, 16, denied, 314 reh’g 86 L.Ed. U.S. arising party’s rights “embodies all of a (1941). An 86 L.Ed. 569 S.Ct. involved, party out the transaction exception rule, pendent to this known as seeking will be foreclosed from later relief “the jurisdiction, when available on the might basis of issues which derive from a com and federal claims ... prior been raised action.” Stuts operative mon nucleus of fact” and “[t]he man, added); (emphasis 546 A.2d at 370 federal claim substance sufficient [has] Sunnen, see Commissioner v. subject matter confer 715, 719, 68 S.Ct. L.Ed. Mine America court.” United Workers of (1948). generally operates doctrine Gibbs, U.S. prevent splitting single 16 L.Ed.2d transaction into its several re theories of jur- A exercise of federal court’s covery “holding one in while he reserve however, It isdiction, discretionary. presses to judgment.” another [or she] every “need not be exercised Stutsman, 7, (quoting 371 at n. exist,” 726, 86 is at which it found id. Brotherhood R.R. Trainmen v. Atlan of 1139; rather, decision the court’s S.Ct. at Co., U.S.App.D.C. tic Line R.R. Coast judicial of turn on “considerations will 298, 300, 225, (1967), 383 F.2d cert. liti- economy, convenience and fairness to denied, 790, 1047, court gants.” Id. Because a federal (1968)). party L.Ed.2d 839 A who fails to decisions of state should avoid “needless theory recovery may succeed on one of law,” ordinarily decline to the court should frustrate the doctrine of res pendent jurisdiction appears “if it exercise cloaking the same cause of action in the substantially predomi- that the state issues language theory a of another subse nate, proof, in terms of of whether quent proceeding. (Sec Restatement raised, or the com- Judgments 23, scope of the issues of 17, (1982). ond) §§ of id., remedy sought,” however, notes, prehensiveness of As the Restatement “if claims are dismissed be- only the federal preclusion upon, is not based but also trial, though even not insubstantial by, opportunity plaintiff limited for a fore case, joinder Id. In such a jurisdictional under modern liberalized rules to a sense.” state present proceeding. all claims in one the federal court should dismiss the 10. The Restatement has rendered favor defendant.” Judgments (Second) phrase eliminated "on the merits” "because 19§ comment Judgments Restatement (Second) misleading possibly of its speaks connotations” and (1982). personal “a instead of valid and final added). prejudice, leaving phasis v. Phoe claims without them for See also Anderson 727, Boston, Inc., resolution to the state at courts. Id. nix Inv. Counsel of hand, 444, 450, 1164, 86 S.Ct. at 1139. On the other if the 440 N.E.2d Mass. “closely questions (1982); Continental, state tied to Anderson v. Werner policy,” pendent jurisdiction Inc., (Minn.Ct.App. should 363 N.W.2d When, be exercised. “considered with- 1985); Id. Square Corp. v. First Juneau Wis regard out to their federal or state charac- Milwaukee, 122 consin Nat’l Bank of ter, plaintiffs are such that he (Wis. claims 673, 681, [or 364 N.W.2d Wis.2d ordinarily expected try would denied, Ct.App.), she] review Wis.2d then, judicial proceeding, them all in one 367 N.W.2d 222 We find the Sev assuming substantiality of the federal is- reasoning persuasive enth Circuit’s sues, power there is in federal courts to argument reject appellant’s therefore hear the whole.” Id. S.Ct. uncertainty the mere of a federal court’s 1138. pendent jurisdiction exercise of should re obligation plead lieve him of his a state A cannot know for sure that a claim. agree federal court will refuse —to —or however, pendent agree, hear claims. We that, recognize We therefore the rule Appeals with the United States Court plaintiff apparent right to when a has an plaintiff for the that a Seventh Circuit pendent jurisdic- invoke a federal court’s virtually every pendent case should file all claim, plaintiff tion over state law claims and test the court’s discretion. obliged to file the claim and force uncertainty over whether a trial the federal court to exercise its discretion judge pendent jurisdiction exercise otherwise, would jurisdiction; keep or decline justify permitting does not the institution will confront a res multiplicity proceedings of a subsequent bar of the state claim a harassing have the effect of defen- proceeding. approach This is in ac- wasting If judicial dants and resources. cord the Restatement (Seoond) entertained at the doubts Judgments e,11 comment and with § pleading stage, they should have been body of caselaw.12 As the Re- substantial joinder. resolved in favor See Feder- 25, com- porter’s Note to Restatement § Moitie, Department ated Stores [452 e, indicates, however, ment the caveat [, 101 U.S. S.Ct. 404] is not this comment—that a second action J., (Blackmun, L.Ed.2d con- 103] court in the first precluded if the federal curring). clearly have declined exer- would cise its over the omitted state Harper Plastics v. Amoco Chemicals (7th Cir.1981)(em- varying Corp., open interpretations. F.2d claim—is See, Producing e.g., Exploration Co. com Woods & Judgments Restatement (Second) America, ment e reads: v. Aluminum Co. 438 F.2d denied, (5th Cir.1971), 404 U.S. 1314-15 1047, cert. grounds. A e. State and theories or federal 701, (1972); Hill v. 92 S.Ct. 30 L.Ed.2d 736 given may support find or claim theories 738, 227, Wooten, 737, 247 Ga. 279 S.E.2d 228 grounds arising from state and federal both 430, (1981); Hospital, Queen’s 63 Haw. Silver v. plaintiff brings action on law. When the 438, 1116, (1981); Corp. v. 629 P.2d 1122 Blazer federal, court, the claim in a either state or Auth., Jersey Exposition Sports 199 New jurisdictional to his which there is no obstacle 107, 1025, 109, N.J.Super. 1027 advancing grounds, both or but he theories (N.J.App.Div.1985); Whitney, McCann v. 25 them, presents only one of is 354, Lakewood, (Sup.Ct.1941); N.Y.S.2d 356 it, respect not main- entered with Witnesses, Congregation v. Ohio Jehovah’s Inc. tenders the tain a second action in which he Lakewood, 338, 341, App.3d City 20 Ohio 486 however, theory ground. the court other If 194, (Ct.App.1984); Rennie v. Free N.E.2d 196 clearly in the first action would not have 319, 325, 919, way Transport, 294 Or. 656 P.2d jurisdiction theory or to entertain the omitted Texaco, Inc., (1982); P.2d (or, clearly 923 Belliston v. 521 ground having jurisdiction, would (Utah 1974); Square Corp. v. First 379 Juneau exercise it as a matter of have declined to Bank, discretion), supra. compe- Wisconsin Nat'l See also 18 C. second action in a then a theory presenting A. Miller &E. tent court the omitted Cooper, Wright, Federal Practice 4412, (1981). ground precluded. not at § should be held 95-99 Procedure

541 dependent upon the sub- id., To district court is at See Reporter’s Note com- in the stantiality of the claims stated sure, inherently the caveat contains almost right by plaintiffs ultimate plaint, not contradictory concepts: that a predicting at Hagans, (citing 415 U.S. judgment.” something “clearly” decline to do court will Thus, 1381)). is no 542, there at 94 S.Ct. is matter “discretion.” plaintiff or a state court for a basis cases, One line of degree cer- conclude with reliable if urges adopt, us to holds that the federal “clearly” federal court tainty that summary question judgment, decided pendent state would have dismissed lawsuit, happened appellant's as federal although complaint, the federal claim once it at least it should be is “clear” —or judgment, had disposed of on deemed “clear” —that the federal court of federal or constitutional raised an issue pendent juris would not have entertained jurisdiction to invoke the law sufficient Accordingly, state claim. diction over the court. federal if claim should not be barred even state authority cited in persuasive case More been, not, pleaded it but could interprets the caveat Reporter’s Note Merry v. Coast See complaint. the federal 25, e, require comment in Restatement § Dist., Community College Cal.App.3d 97 federal plaintiff to file the state claim in 603, 214, 227, Cal.Rptr. (Ct.App. 612 158 court, pendent jurisdic invoke the court’s Turismo, Inc. 1979); Ron Tonkin Gran tion, reflecting and thus build record Motors, Inc., 199, Or.App. Wakehouse 46 pendent discretion over court’s exercise of 658, 206, (Ct.App.1980). 662 P.2d plaintiff can jurisdiction. way, In this once federal These courts reason that clear to make cause the federal claim, court has the federal dismissed summary judgment includes its whether jur pendent court must decline to exercise claims. See well as federal state See Duck claim. isdiction over a state Co., 696, & McLearn v. Cowen N.Y.2d Franzen, (7th 645, worth v. 780 F.2d 750, N.E.2d N.Y.S.2d Cir.1985) (pendent claim should Mass, Anderson, See also (1979). relinquished normally be when federal 1169; Annotation, at 440 N.E.2d trial), cert. de claim is dismissed before Fed Pendent Jurisdiction Existence nied, 93 L.Ed.2d U.S. when Joined eral over State Claim therefore, (1986). courts, These inter Laws, Trea Arising Under Claim pret the Restatement comment e ca § States, ties, United or Constitution of to mean that does veat (1985). A.L.R. “[I]n Fed. apply subsequent state actions concern doubt, rules of appropriate it is ing if the same cause action the federal bring compel summary judgment, is decided on in the theories forward his state [or her] pendent even if a state claim was never action, possible make it federal in order to complaint. in the federal controversy single in a to resolve entire Judg approach We believe this is unwork lawsuit.” Restatement (Second) of pure specula able because it based on A reporter’s note ments obliged tion. A federal court is auto of its relative relieved party should not be matically dismiss a ly obligation plead the state light grants summary judgment it on federal time the fed some later merely because at Lavine, Hagans claim. grants eral court 539-40, case, S.Ct. 39 L.Ed.2d cannot claim. this we (1974) (equal protection 577 claim not so the federal court would say is clear that it pendent juris on of com insubstantial face exercise its frivolous have declined to claim; appel plaint jurisdiction negligence that court had no diction over the claim, com merits state claim before dis when reach law lant’s federal Florida East Coast claim); so insubstantial missing plaint, federal was not States, tak Ry. 1184, “clearly” not have v. 519 F.2d court would Co. United federal Judge Ho- Cir.1975) (“The jurisdiction. The (5th en fact jurisdiction 1194 542 fact, however,

gan, district The that a federal court federal court claim— likely most will dismiss a state law case, granted summary judgment appel on prediction a based on the results of earlier process lant’s due claim because of the litigants enough not to assure cases—is adequacy of state administrative remedies “clearly” to exer- that the court will decline failure to avail himself of power keep “discretionary” cise remedies, Gilles, those see 676 court, Only case. the federal as a when 345, “clearly” does not mean that law, matter of left discretion to without Hogan jurisdic would have exercised keep pendent that result state will alleging tion over a state claim meaning of Restate- be “clear” within the common law tort theories which—as we 25, e, interpret comment as it. we ment here hold—are not barred failure to necessary bright-line We think this rule is exhaust those administrative remedies. promote disputing the interests of parties system judicial and the court If the federal district court concludes economy litigation certainty. and in The merit, that the federal claims are without application permits res clear here, happened proceeds with the alternative, result; allowing and final federal case but concludes that the state claims, split state and federal predominate litigation, issues in the see fortuity based on the mere of a federal Gibbs, 727, 1139, 383 U.S. at 86 S.Ct. at granting summary judgment court’s to a very likely federal court will resolve the defendant a federal claim to which federal claim and dismiss the state claims pendent readily state claim could have prejudice.13 plaintiff without will then been—but was not—added. permitted pursue the state law claims reject appellant’s We therefore conten- separate proceeding.14 in a state Id. “Dis- plead required tion that he was cretionary refusal a federal court to related state claims in his federal pendent jurisdiction exercise over a state simply litigation claim does not further bar granted claim. The rule we federal state claim in state court.” Boccardo v. adopt requiring plaintiff present here all Stores, Inc., 1037, Safeway Cal.App.3d 134 initial, federal pendent state claims in the 1046, 903, (1982).15 Cal.Rptr. promotes litigants by 184 909 fairness to claim, 13. Because the statute of limitations would not diction over a related state during period bringing plaintiff be tolled when the federal a subse does not bar consideration, quent proceeding court had the state claim under on that claim in state court. Serano, 47, (D.C.1989), Point, See, e.g., City see Bond v. 566 A.2d 49 Nilsen v. Moss 674 F.2d filing pendent 379, (5th Cir.1982); counsel claims state in federal In re General Motors 385 protective Interchange Litigation, court would be well advised to file a Corp. Engine F.2d 594 arrange 1106, denied, 870, (7th Cir.), lawsuit in Court and to for a 444 U.S. 1134 cert. pending 146, (1979); continuance resolution of the federal 62 L.Ed.2d 95 Calderone 100 S.Ct. ruling pendent jurisdiction. Circuit, court’s Corp. Enter. Inc., v. United Artists Theatre 1292, (2d Cir.1971), 454 F.2d 1297 cert. 930, 1776, denied, express opinion position 14. We do not 92 S.Ct. 32 L.Ed.2d Bessemer, (1972); plaintiff City taken the Seventh Circuit that if a v. 406 132 Terrell only pendent jurisdiction 337, pleads (Ala.1981); Realty over the state Penn Mart Co. So.2d complaint, Becker, (Del. 1972); claims in the federal but also could Ch. diversity jurisdiction, 505, 506, have asserted Ferger N.J.Super. v. Local any attempt pursue will bar those state (N.J.Super.App.Div.1967), cert. de nied, (N.J.1968); claims in state court if the federal court de Mas 51 N.J. 238 A.2d 468 pendent jurisdiction. Scott, (Tenn.1987). clines to exercise Shaver sengill S.W.2d 629 Co., (7th Cir.), Mesa, v. F.W. Woolworth 840 F.2d 1361 City But see Mattson v. Costa Cal. denied, cert. U.S. S.Ct. App.3d Cal.Rptr. (Ct.App. (1988); 1980) (if L.Ed.2d 117 see also Kale v. Combined pen federal court declined to exercise America, (1st claim, Ins. Co. 924 F.2d over dent - Cir.) Shaver), denied, (following U.S. cert. proceed elects to to trial and in feder -, claim, 116 L.Ed.2d 44 plaintiffs federal al court on entire cause in, by, merged of action is or barred that, agree majority judgment, thereby precluding 15. We with the rule when a successive action). pendent juris- proceeding federal court declines to exercise on same cause of issue, which is fun- acquiescence pleading en- about the simplifying the rules of while res to the resolution economy by disposing of damental couraging judicial defense.16 possible, single pro- in a controversy, sum, ceeding. plaintiff In if a wishes trial propriety of the reviewing In preserve a state law claim based summary judgment, granting order court’s a federal same transaction that underlies (1) there must determine whether this court claim, join must the state issues of fact relevant any are unresolved complaint, a count in the federal court as the trial court ruling and whether to the (joinder of claims see Fed.R.Civ.P. Rule correctly applied judicata. the law of res remedies), federal and invoke the 160, Corp., 485 A.2d v. Oil See Davis Gulf jurisdiction. court’s task, (D.C.1984). carrying out this light most the record in the “we must view IV. op- who [appellant,] favorable Alternatively, argues that the and thus re- poses summary judgment^] mo- granting appellee’s erred in trial court of a any doubt as to the existence solve summary judgment tion for [appellee,] the mov- dispute against factual apply for another reason: judicata does ing party.” Id. consented, explicitly either Ware Under the Restatement, splitting his implicitly, appellant’s (claim apply to extin preclusion) does not the federal and state fo- claims between parties agreed guish a claim if “[t]he

rums. plaintiff may or in effect that the terms claim, ruling that res or the defendant split his [or her] (claim preclusion) appel acquiesced barred therein.” has Restatement Judgments (1982); 26(1)(a) lawsuit, ad lant’s the trial court did not § (Second) and E. Cooper, claim-splitting issue. A. Wright, dress the consent to see C. Miller Once, however, “genu raised the § and Procedure Federal Practice court, (1981); Transport, 294 Freeway acquiescence ine in the trial Rennie issue” Toledano, P.2d A.2d 48 Or. Nader v. de purpose of res (D.C.1979), denied, the main 100 That is because cert. (1980), protect the defendant appellee judicata 62 L.Ed.2d 761 “is to S.Ct. burden, by repetitive actions based moving party, being harassed had the as the is thus not claim. The rule agreed appellant’s he had not on the same show that consents, in the defendant claim-splitting. specifically, appellee applicable More when otherwise, splitting to the express words or had to show that he did not consent when— 26, comment mo of the claim.” Restatement response to the District defendants’ rule, I con Applying claim in the a. the Restatement tion to dismiss tort summary judg record on appellant amended his clude that lawsuit— District that the to remove his tort ment does not establish Court agreed to separate expressly claim and filed a tort action defendants Nonetheless, claim-splitting. But I also conclude ap- neither Court. conclusively record shows pellee’s judgment motion for i.e., consented acquiesced implicitly nor the trial court’s in— pros- appellant’s decision granting says anything that motion his actions order to— claim-split- any for trial and material fact remained 16. Whether a defendant consents to as is, cases, ting many large part question moving party, appellee, was entitled consistently E.g., McCoy intent. We have said motive and judgment of law. as a matter "[s]ummary judgment is an extreme reme- (D.C. Quadrangle Corp., A.2d dy” granted sparingly in cases that “should establishing 1983). Appellee burden involving Spellman or intent.” v. Ameri- motive and had to material issue the absence Bank, N.A., Security can judgment under he was entitled show that (D.C.1986). principles, Under well-settled E.g., principles law. applicable of substantive granted summary court should not have trial Corp., Burch v. Amsterdam n pleadings and other materi- unless the (D.C.1976). genuine issue on file demonstrated that no als ground judgment on judge separately federal and state entered ecute through Thus, by erred process the trial court had been available claims. due granting summary judgment ignored. appellant had local remedies judicata. based on res adequate available Failure to exercise ting to trict defendants moved process and filed his federal court arguing ment supra, 451 U.S. [527] supra, 443 U.S. sought in state court poses liability for violations tected (1979)]. law. tions tort-law ^[2689] Furthermore, I understand incorporating (the be of duties of care Remedy for the latter in a expressly at 2695-96 first as follows. principles. Baker v. the Constitution pendent state supporting motion) appellant’s 42 USC Section also, consented both ^[137] A. Parratt After in federal court for [61 complaint arising out of tort constitutional due memorandum: under traditional claims, the Dis- summary judg- argument that 146, 99 S.Ct. not for viola- L.Ed.2d 433 type must claim-split- McCollan, rights pro- in Taylor, July had im- filed an omitted). complaint Gilles, law). (Third cuits dy negligent errors adequate cess tion is available bodies Appeals tions. As the United state create a 1019, 105 “substantive Cohen v. compensation for rights are not violated as remedies does circuit (3rd Cir.), answer to holding In October federal claim so applying for the Third Circuit S.Ct. City Superior joins mistakes procedures that individual’s by the state’s Philadelphia, 736 F.2d cert. at 345 local First 83 L.Ed.2d appellant’s amended not entitle a Court, due ordinances do denied, States Court and Seventh Cir (some long as correc applying appellee Ware administrative exist to reme process invoking res judiciary.” citations due long as stated, viola local pro ^[1908] at 1917 [68 L.Ed.2d (1981)]. based on Hogan’s sum ruling in Gilíes. mary judgment Dis- litigating than response, rather motion, filed in trict defendants’ not reflect a Although record does an amended federal court December 1985 distinct, agreement express between defendants, added some defense a res parties to waive others, significance dropped and—of negligence ac- Superior Court state claims. dropped here— the District de- tion, argues that Again, the District defendants moved supporting their fendants’ memorandum motion) (the second in the fed- summary judgment motion first court, supporting arguing in their was, reflected, effectively eral lawsuit May memorandum drop inducing him to agreement, such an are available to the local courts since his federal claims from pendent tort any alleged negli- plaintiff to redress and to refile lawsuit ... his gence part of the defendants memoran- The District defendants’ Court. complaint must be dismissed. summary support of their second dum earlier, April appellant had A month lawsuit, he in the federal judgment motion negligence action Superior Court filed this consent. this says, confirms pendent state claims on one of the based position. agree cannot court lawsuit. dropped from his federal had record, say I cannot more on the Without re- appellee filed a motion May deemed, unilaterally, should be the District stay pro- questing agreement express made an to have re- the federal claim was ceedings until inter- possible One through pleadings. its In De- granted. The motion solved. memoranda is District’s pretation of the having Judge Hogan cember —never very basis they merely articulated first motion before on the District’s ruled concluding that con- Hogan used complaint granted appellant amended — violat- process due been stitutional defendants’ second the District state remedies. ed: failure to use available federal action. motion in the pending action is explicitly say jection That is to the District that another not willing [usually defendants to their on the same claim called were convert based in Objection constitutional defense federal court— on “other action an based to an failure invoke state remedies—into in of judgment one the actions pending”], appellant invitation to second pro for sue a preclude plaintiff the does time, short, Superior in the rec- Court. obtaining judgment in the ceeding and support ord does contention action. The failure the defen other expressly to claim- District consented object splitting dant to to splitting. acqui effective as an plaintiff’s claim is in the splitting

escence claim. See 1.[17] Illustration B. opposing summary judgment Superior in however, Appellant, argued has also Court, appellant argued that the District the District defendants’ memoranda made litigation in the federal defendants appellee clear that at in acquiesced least summary judgment appel- for moved to) (implicitly appellant’s claim- consented first on the lant’s tort claim the time splitting by object it, failing to to and that Court, belonged Superior it ground that acquiescence such waived the res led to and that this motion had 26(1)(a). defense. See Restatement § his federal to remove the amend Wagner Judge appears agree

While to with (this case) to file it tort claim then jurisdiction adopt me that this should consequence Superior of this Court. As includ claim-splitting, rule Restatement amendment, the Court did not rule District ing the acquiescence, post for at test see District first defendants’ disagree application we as to the test's the District judgment motion. Whether and as to to required what evidence is failure on that “re- Court’s to rule motion support argument an acquiescence in order whether, instead, solved” the motion or oppose successfully to a motion for sum moot,” see merely that motion “became mary judgment. appellee Neither nor the 552, is issue post wholly irrelevant spoke trial court to this issue. In evaluat whether, opposition appel- Wagner in his here: ing judgment, the summary summary judgment for Su- review, lee’s motion in effect reverses our standard appel- perior relying judicata, drawing Court on res all against favorable inferences sufficiently the factual issue of appellant, nonmoving misap lant raised party, acquiescence claim-split- in the plies determining test for Restatement acquiescence adopts ting, that she the result burden from Rennie Freeway supra. the res Transport, going forward to establish appellee defense shifted back Ware. Judgments (Second) Restatement a, comment states: alleged § acquiescence, appellant To raise District the federal simultaneously that the defendants Where the appellee Ware —“re- maintaining separate upon litigation including actions based — claim, parts argued” should peatedly the same and in neither Superior brought action the ob- case Court.18 does defendant make his as B consented in effect 17. Illustration 1 reads: should refused splitting claim. of the per- 1. After a collision which A suffers a. § Restatement comment injuries property damage, sonal A com- that, Wagner argue mences in the same one action for It is incorrect for personal prop- injuries appellee and another for the not name Ware did erty damage litigation just B. make B does not a defendant in the federal until objection (usually known in either action first motion for after the summary judgment defendants' suit, pending") called A’smaintain- the federal "other ing parts acquiesced two claim. held in claim actions on of the same "cannot be to have through injuries, splitting pleading in a in which personal After for A for the Appel- requests property party.” B damage was not then a Post dismissal action for ground merger. official as an Dismissal sued for his acts lant Thus, appel- in order District Defendants’ comment a. Appellant cited the defense, he preserve his res motion in the lee first appel- objection allega- required to file support suit to his factual did He complaint. Court allegation, coupled That with the Dis- lant’s tion. [appellee] “The failure of filing for mere not do so. trict’s action in a motion object splitting [appellant’s] (pending to the resolution split- lawsuit) acquiescence in the filing than as an of the federal effective —rather “objec- ting Id. for or some other of claim.” motion dismissal the Superior the suit—sufficient- tion” to Court appel filing objection an to than Rather showing support in ly appellee’s rebutted filing complaint or Superior lant’s Court summary judgment judica- based on of registered clearly that some other motion short, appellant sufficiently In raised ta. claim-splitting, appellee’s objection to the acquiescence factual issue the of stay the merely filed a to motion claim-splitting; provided he more in the the proceedings pending Superior Court “conclusory assertion” than the proceedings. federal court outcome of the Wagner at perceives. post 553. The See Wagner appel- disagree I with court, therefore, on should have ruled trial an stay was to lee’s motion to tantamount acquiescence granting issue before the on objection appellant’s complaint based to summary judgment a matter of law as pendency of federal lawsuit. the judicata. based on res authority proposition. for that She cites no light fa- Viewing the record the most fact, In cases she post 549-550. the See at appellant nonmoving par- to as the vorable a motion that more than cites demonstrate summary appellee’s motion for ty opposing preserve judica- to stay required a res to is clear that the trial judgment, believe it plaintiff the is “simulta ta defense when the factual issue of court did resolve neously maintaining separate actions.” any acquiescence claim-splitting. the supra, cit Freeway Transport, Rennie v. event, carry his to burden of failed Supreme of Ore the Court post ed sufficiently showing did not not ac defendant had gon held that the consent-to-claim-splitting raise the issue. plaintiff's claim-splitting be quiesced in the altogether proffer any- to Appellee failed had to dismiss moved cause the defendant he, the thing of record to show or immediately af the state abate action— earlier, objected to District defendants complaint had filed his ter the appellant respond- claim-splitting when plaintiff’s the basis of the state court—on expressed concerns in ed to the defendants’ Or. complaint. 294 pending federal court amending the fed- litigation the federal Likewise, in 327-29, 656 P.2d at 924-25. refiling negligence complaint and eral Co., 524 v. Hurricane Fence Funkhouser Superior action Court. (Tex.Civ.App.1975),cited S.W.2d relied appeals court of post at a Texas Accordingly, adopt were to we Judgments Annotation, Splitting cited cases (Second) Restatement of A.L.R.3d Waiving Objection, 40 acquiescence claim-splitting rule on to Causes — —as clear, (1971), applying the Restatement it is we I believe should—then that, be law, rule. court concluded appellee is The Texas not entitled matter file “a to defendant had failed summary judica- cause the based move pending, or to plea of another cause Superior filed his After ta. consolidation, any bring manner to “simultaneously Court court and to the trial maintaining actions based on attention separate object- plaintiff the fact that defendant claim.” Restatement parts same Corporation government acquiescing actions of agent of the of Columbia Furthermore, Corporation Counsel beginning represented Counsel. been and has stay Counsel, represented the action—without Corporation all filed the motion who also appellant's filing objection to simultaneous defendants in the other District such, pursuit Superior Court— appellee represented by relief in federal and As action. — appellee. lawyer Court on behalf of government’s be deemed bound —must action,” drop his tort claim court led splitting the cause of al ed to the file it across lawsuit and split from his federal defendant consented to “ha[d] Court; (2) appellee the street in at 783. ting of the cause of action.” Id. motion Chell, then filed a successful 176 Ohio St. also Shaw v. pending resolution (1964) (where Superior suit N.E.2d suit; winning sum- after the federal personal dam plaintiff filed suit recover appellant’s constitution- mary judgment on ages property while other suit to recover Superi- claims, returned to appellee then damages arising accident was al from same object and filed a motion or Court pending, still failure defendant appellant’s failure arguing that judgment, other action ground either claim in his federal keep pendent tort implied consent to pending amounted to coupled the federal court’s complaint, claim-splitting). order, precluded appel- stay pending A resolution of motion Superi- in litigating his tort claim lant from may many filed for proceeding another be or Court. party may a ac- example, reasons. For Thus, [appellee] may “protect[ing] far from claim-splitting in but want to quiesce a actions Or, being by repetitive one at a time. harassed deal with the lawsuits claim,” Restatement stay based on the same moving party may want to one a, appellee’s invoca- belated reaching compre- comment hopes in the a action § through in this judicata tion of res party in hensive settlement with the other case— un- maneuvering procedural astute In neither instance would the other action. —has having any prevented appellant from justly stay imply objection an to the motion tort claim. court hear his stayed proceeding. existence of the fact, defer, very stay a is to but idea of trial court Accordingly, I conclude the affirm, stayed action. the existence of the summary judg appellee granting erred in many file a While there are reasons to Fur judicata. the basis of res ment on only stay, motion to there is one reason to thermore, adopt the Re expressly I would unambiguous “Objection file an Based on Judgments (Second) statement Pending” Action or a “Motion to Other claim-splitting. Because bright line rule on Pendency Action”: Dismiss Due to of Other objection at the appellee failed to file prevent litigation pre- to successive and claims, I split his conclude appellant time Appellee did serve a res defense. appellee acquiesced of law that as a matter not do so. thereby waiving his claim-splitting, in the judgment defense. case, appellee disagree In this does not remanded and the case should be reversed only appellant split his claims to for trial. complaint in federal after “cure” the District defendants had filed a motion WAGNER, concurring: Judge, Associate ground for Judge II III of required bring join in Parts and appellant was his tort I concur with Superior opinion, in It therefore is not but Court. Ferren’s the trial Reilly affirming the order of surprising appellee did not file an ob- ap- for granting summary judgment appellant’s Superior Court com- court jection view, my grounds. plaint; given appellee’s pellee motion in federal on different summary court, properly granted precisely Court is where the trial court upon the res judgment appellee District defendants based appellee and the other pri- in the judgment appellant to file his tort claim. effect of wanted however, sued on an identi approach, ig- Wagner’s or suit which effect, and, join the additional reality the case cal and failed nores the in this case to “sandbag” appellant recovery advanced theory allows A re (and alleged wrong.1 steps: appellee’s same easy three redress the defendants’) genu- fails to disclose a District actions in feder- of the record other view (D.D.C. 1987). 1. Gilles v. Touchstone, defendants, five dispute regard- fact in two of the

ine issue of material voluntarily action dismissed the ing applicability the doctrine either the Therefore, against two Id. at 344. Although en- others. to its use. defenses only remaining defendant Ware was the against claim-split- forcement of the rule granted when District Court heard ting, part judicata, doctrine of res favor. Id. The action judgment either waived defendant out in this arose the federal court and consent, failed express implied facts, operative which of the same core produce opposition mo- deci- in the are summarized Touchstone summary tion for evidence sion. See id. consented words or conduct Moreover, re- claim-splitting. the record May 22, appellee filed a motion On objection appellee’s timely to defend- flects Court, stay the lawsuits, ing simultaneously thus de- two stay reso- granted pending trial court acquiescence feating any theory of in the Court. lution of the case claiming the preclude appellee from would aside, appellee filed After the was set of the doctrine. benefit asserting as defens- an answer affirmative es, estoppel and the judicata, collateral pertinent The salient the issues facts in Touchstone. District Court’s decision April raised are follows. On a motion for Appellee later filed appellant filed clearly judi- the res judgment, which raises damages in of the Dis- the Court split- against bar based on the “rule cata naming appellee, trict of Clifton Columbia court ting a cause of action.” The trial Ware, as The com- the sole defendant.2 with- granting an order the motion entered plaint, against which is Ware in his individ- opinion. out capacity claims of only, ual is based on “[pjlaintiff’s negligence and violation of summary judg- reviewing grant a rights.” Almost constitutional and civil ment, applies this the same standard court earlier, years com- two initially. applies court trial Dis- World, menced an action in the United States Inc., A.2d Thompson 569 v. Shoe trict Court for the District of Columbia 187, (D.C.1990). so, doing this 189 against the District of and sever- Columbia independent review of undertakes an government in their gen- al District officials are to determine whether there record capacities” and individual “administrative dispute. facts in Id. uine issues of material based, alia, inter on claims of violation nonmoving Although party is entitled rights negligence. his constitutional and inferences to the benefit of all favorable Appellee not as a Ware was named fact, nonmoving party must contest original in the com- nor even mentioned specific fact evi- issues of material in filed an plaint Appellant District Court. pertinent legal theories argue dence and 9, July on 1985 in the complaint Thompson amended v. opposition to the motion. Court, pre- 1255, deleting Investments, some 1257 action District 533 A.2d Seton adding oth- viously (D.C.1987). and affirm the decision named defendants We will ers, Ware, including alleging only judgment con- if the record granting summary Touchstone, supra, genuine of mate- there are no issues stitutional claims. shows that, dispute District a matter at 343-44. The rial facts note law, moving party judg- granted motion to the case entitled a dismiss Court placed points Rec- on the Plaintiffs Driver's other of Columbia defendants” 2. No “District named in of Motor Vehicle Services nor other defendants were ever ord at Bureau only body of the the action in this case. in the of Columbia. result, by appellant Superior Court complaint his Plaintiff denied 3. As was entirety employment reads in its as follows: was re- as a taxicab driver and citizenship. fused Wherefore, on this Court is founded 1. Jurisdiction of (1981). judgment the Plaintiff demands D.C.Code 11-921 and 13-423 Sections $4,500,- 18, 1984, against 000, May in the April Defendant amount Between 1984 and negligently and for further relief as the in violation of such Defendant Ware rights appropriate. civil deem constitutional and Plaintiff’s (en banc). Gerstenfeld, (1982) by acquies- Williams v. ment. 514 A.2d Waiver (D.C.1986).3 fails to cence can occur when defendant claim-split- objection to interpose timely res Appellant in his concedes brief that Rivers, ting. Story Ga. judicata bars here the identical constitu However, 138 S.E.2d judgment tional claim for en was appellee objected here reflects that record prior tered him in the lawsuit. prosecution of the second lawsuit. timely to Bros., Inc., Henderson v. Snider case, this Appellee promptly moved (D.C.1981) (res bars, af pending granted and the court motion valid, merits, adjudication ter final disposition final of the suit federal court. relitigation same claim between in the The amended federal ac- Manage Hagans see also parties); same tion, appellant’s constitu- containing only Co., Nichols, ment Inc. v. A.2d claims, filed in tional was December Hirst, (D.C.1979); Gullo pending for one a half It had been (D.C.1965). However, argues years appellant filed in this court before res negli does defeat the same claims and an addi- constitutional gence adjudi claim it because: was negligence. on Not until tional based action; (2) appellee prior cated April appellant filed the second lawsuits; separate him caused to file two asserting the additional claim was and, (3) the suit adjudicated was obligated object claim-split- summary judgment, rather than after ting. expeditiously May He did so Essentially trial. for the reasons stated by filing motion to before answer the agree Part III of opinion, Ferren’s stay. Appellee not entitled at split improperly his cause of time to dismissal or plead negli action when he failed to no yet was as that gence lawsuit; Court because there in the federal pur- judicata principles operate Appellee bar the action. ac to bar the reme- case, appellee successfully only in this the available tion unless the sued waived and, two against claim-splitting; dy against rule simultaneous defense of the that dis lawsuits, stay the position summary of of one of them. After by the federal claim aside, appellee immediately set judgment preclude stay was application does not Therefore, asserting as an only the filed an answer affirmative doctrine. defense the bar to the claim based on res remaining claiming basis for that there is a estoppel, judicata, dispute and the factual for trial is collateral that decision in the federal court. the second This claim court’s action.” “cause[d] premised only legal theory can be filing in the to By this action motion appellee’s preclusive waiver of the effect of timely his ob- stay, made known prior judgment acqui the by by consent or defending simultaneously to in two jection escence. required No is of a defen- forums. more judicata Acquiescence recognized exception preserve is a to in order the dant to Freeway preclusion claim-splitting claim than a Rennie rules. defense based on Transport, 919, pending. cause is timely plea 294 Or. 656 P.2d that another Indeed, (see Investments, suggests incorrectly supra, at 3. Ferren ante at A.2d 1257. 533 543, 544-545, 546), the trial court’s failure for a this court sustain a correct decision, legal set forth to the reasons for its upon legal the reason different from one relied including specific re- its omission of references Holtzman, K. & the trial court. Max Inc. v. claim, jecting any acquiescence precludes affir- Inc., 510, Co., (D.C.1977); n. T. A.2d 513 6 375 judgment. mance of Since the motion Liberty Co. v. Co- Mutual Insurance District of predicated on a res lumbia, 871, (D.C.1974); Bakal v. 316 A.2d 875 claim-splitting, bar based on and the Weare, 1028, (D.C.1990). There- 583 A.2d opposition, light, predicated in its best viewed fore, specify the trial failure to the rea- court’s acquiescence, we must assume that the trial ruling preclude our review son for its does not gave to More- court over, consideration these issues. and resolution of whether affirmance is war- obligated this court is examine the to grounds parties sup- raised ranted against governs de record novo law which respective positions. port their legal Thompson these theories. See v. Seton stay prevented application.4 its Rennie, at n. 656 to supra, 294 Or. (motion Rennie, at P.2d n. 9 656 P.2d at dismiss 294 Or. at (where suf- pending timely objects action to claim- abate based defendant acquiescence exception defeat upon plaintiff ficient to accom splitting, onus is rules); Story, supra, 220 preclusion Without such plish necessary joinder). (waiver Ga. 138 S.E.2d at 305 at presumption operating in fa cause splitting rule of action vor, initial burden on once met his action); plead pending waived failure judgment, the burden shifted Co., 524 v. Hurricane Fence Funkhouser supporting any appellant to show evidence Dist.1975) (Tex.Ct.App. 1st S.W.2d theory defeat legal would which (failure plea pend- of another cause to file For after the bar to his claim. ing objection amounts to or other form of moving party prima makes a show facie action). cause splitting consent to of fact is in ing genuine that no issue assertion, Judge Ferren’s Contrary to is dispute and of law he enti as a matter foregoing cases do demonstrate judgment, shifts tled to the burden required more for a than a motion prima opposing party to rebut facie preserve under a res defense showing specific evidence demonstrat Rennie, the court circumstances. ing Thompson v. Seton contested facts. timely the defendants had found 1257; Investments, supra, prose- to the simultaneous objection raised Georgetown-Inland West Landow v. separate cution actions based on (D.C.1982);Nader Corp., 454 A.2d same transaction. 656 P.2d at 924- factual (D.C.1979), 31, 48 Toledano, A.2d v. de defendants had a motion The denied, cert. U.S. action or abate the based on dismiss defeat the mo L.Ed.2d To pendency of another suit. Id. at 920. tion, nonmoving for the it is insufficient dismiss, motion to trial denied the but court legal theory in simply assert abatement, granted plea staying prima moving party’s defense facie pending resolution the earlier White, case. See Hill v. proceeding. filed federal Id. The Rennie nonmoving party’s burden (D.C.1991). The did found that the case not fall within supporting a claimed produce tois evidence “any ex- ‘acquiescence’ or ‘reserved issue’ requires resolution dispute factual ception preclusion rules.” Id. to the predicated by the trier fact and which Funkhouser, the court conclud- Toledano, Id.; theory. de legal on a viable ed had consented to the that the defendant reflects that at The record 408 A.2d failing splitting “[b]y of a cause of action to do so. failed plea to in either action a of another file move for pending, or to consolida- for the cause of accounts One the issues which tion, bring to dissenting manner by my or different reached result trial court the fact that attention of the who colleague, concerns Ferren, 524 objected. . . .” S.W.2d defendant of production the burden of added). That is not the case (emphasis 783 Therefore, I elaborate fur- acquiescence. timely appellee registered here position. my my clear ther make objection in two forums proceeding view, are not es- acquiescence consent and stay. agree, filing motion to cannot of sential elements suggest, seems ante Ferren Therefore, in order to meet his defense. 546-547, that a motion must judgment, it initial burden on objection of “an based on couched terms appellee anticipate necessary ” pending.’ ‘other action which, legal if shown such theories side, from preclude him claim- might other Thus, assuming this were prior judgment. ing the benefit of the of presumption waiver absent recognize a Rather, upon appellant, the appellee’s timely motion burden was objection, timely evidence, Dann, U.S.App.D.C. contrary. Legille they Presumptions dis- v. are not and 78, 82-83, (1976). 544 F.2d appear evidence is introduced to when actual argued Touchstone, appellee before nonmoving party, identify evidence to Court, that the suit should support legal theories of consent Appellant filed in a local court. acquiescence if he contended that these have been quo- relying three prevented appellee supported from these assertions with principles the Touchstone bar. the first from on the res tations: motion to dis- from a opinion; the second party assert- general “The rule is that complaint in which appellant’s original miss of ing pleading an issue has the burden party;5 as a is not named appellee its persuasion proof i.e., burden —and — taken from a Memoran- purportedly third production i.e., constituent burden — support Points and Authorities dum of going initial forward with evi- burden here) to Dis- (appellee Motion Defendant’s element of such dence—as to each material Summary or In the Alternative for miss Toledano, prevail.” de issue order Appellant contends Judgment.6 48; Walker, supra, 408 A.2d at Imhoff reflects following quote from Touchstone (D.C.1947); National Mo- ruling the District Court’s States, Freight Ass’n v. United tor Traffic brought in a tort claims should have been (D.D.C.1965); F.Supp. United local court: Electrical Radio & Mach. v. Gen- Workers “substantive mistakes administrative Co., eral Electrical do not applying local ordinances (D.D.C.1954); bodies Doughty Prettyman, long claim so as correc create a federal Md. Once a judiciary.” by the state’s produc- his or her burden of tion is available meets Philadelphia, 736 F.2d City all his or her tion on issues which establish Cohen v. denied, case, (3rd Cir.), cert. prima the burden shifts to the facie L.Ed.2d 360 opposing party produce contradictory ev- legal (1984).” supporting idence or evidence a viable Toledano, defense to the claim. de See Touchstone, F.Supp. at 345. supra, 676 evidentiary A.2d at 48. The burden of context, quotation is taken out production shifts from side to side on sum- not reflect appellant’s characterization does mary judgment as it does at trial. See id. holding. In accurately the District Court’s case, Applying principles to this once these fact, determined that the court discharged appellee his initial burden of of, had, adequate himself did not avail but demonstrating undisputed supporting facts adverse administra- appeal remedies to action, prior the res bar of the District Columbia tive decision compe- to offer burden shifted to Motor Vehicles Services Bureau showing pre- tent evidence some basis to pro- (BMVS).7 that due The court observed relying on the defense. clude of these by the existence cess is satisfied Landow, id.; supra, 454 A.2d see also and that adequate state remedies identify Appellant at 313. failed to evi- [appellant] to exercise “[fjailure of dence, none, and the record contains show- not mandate that rights does ing disputed factual issue or evidence at 345- process existed.” Id. due violation which, proved, estop appellant if would the ade- opinion makes clear that 46. The prior judg- the the relying from on bar of to are the quate remedies referred ment. correcting the adverse ad- procedures for on this action. It was basis Essentially, appellant op- asserted in his ministrative granted summary judgment in the court position that the District Court ruled record, and response appellee’s is included in the statement of Ma- 6. Neither motion 5.In opposition nothing appellant’s to in- in there is Dispute, appellant stated that terial Facts Not in the trial motions were before dicate that the original complaint Court he filed his in District opposition. to the court as exhibits July "[appellant] Ware was 1985 and that copy party the not a to that action." A points agency’s was based on 7. The decision appended the as an exhibit driving erroneously placed appellant’s record supports pleading and the statement. Touchstone, supra, 676 by appellee Ware. F.Supp. at 345. Ware, ease District Court com holding [appel- appellee, for that “[failure filing adequate the amended com exercise available menced with the lant] [appellant] to remedies not entitle plaint alleged only constitutional which [does] compensation process for violations.” due Peabody 102 N.H. O’Leary, claims. See The not ad- Id. Touchstone decision does 167, 169(1960); Lewis v. dress, as effect of the appellant argues, the (1923). I Hines, 120 A. 728 can 81 N.H. availability aggrieved party sepa- to an pro authority, no locate FerREN against government tort a rate remedies none, party an added vides which binds employee negligence results ad- whose representations arguments pleading in a or Thus, action. there is verse administrative original parties be on behalf of the filed concluding that no basis for with re joined, particularly he was fore appellant’s pendent ruled spect rights related to to his individual claims, any, should have filed been never asserted him that claims prem- court nor its decision was local Moreover, language in the ex action.8 argument to that effect made ised on appellee cannot be cerpt upon relies which appellee Ware which can be considered The as an assent to a second suit.9 viewed consent this case as evidence pleading par of other statement from acquiescence claim-splitting. simply appears to be a ties in Touchstone quote upon The second claim, legal argument that a constitutional acquiescence is taken relies as evidence asserted, lie does not such as one pleading a filed the Touchstone ordinary tort claims. par- a appellee even made case before was motion, quotes pas- which was ty to the action. That one other Finally, appellant defendants, by the former was never filed from the Memorandum sage, purportedly resolved and became moot when by appellee filed Authorities of Points and eliminating the complaint, tort amended his case, which reads as the Touchstone joined originally, had claims which been follows: defendants, naming deleting some ad- Thus, local courts are available since the defendants, appellee. including ditional negli- any alleged plaintiff to redress Touchstone, supra, gence part of defendants ... Appellee cannot be held 343-44. complaint must be dismissed. through claim-splitting acquiesced in appel purportedly the word use in a pleading other defendants provide lant failed to below party. not The fact in which he was then authenticated, certi copy pleading, by the represented was same Super.Ct.Civ.R. original fied otherwise. See lawyer the defendants complete 56(e).10 unavailability of not As to complaint does alter result. liability imposes for violations of original complaint Section 1983 filed in District Constitution, Court, rights protected not for of Colum- sued several District arising care out tort of duties of officials "both in their administrative violations bia Touchstone, injury Remedy type of capacities.” supra, for the latter law. individual F.Supp. sought tradition- Appellee in state court under was to the must principles. originally. Id. at 343 n. & 344. The al tort-law McCollan, favorably ultimately resolved Baker single This L.Ed.2d 433 dam- in Touchstone legal principle speci- quote, allegation that forth the ages “the individual which sets based on lie, plaintiffs fying will or will [appellee when a 1983 claim here] defendant violated by appellant, rights...." if it been advanced [appellant constitutional Id. even here] Similarly, allegations provide for the conclusion in the a basis insufficient at 344. acquiesced claim-splitting. against in that Court are negligence for or violation of individual Ware 56(e) pertinent 10.Super.Ct.Civ.R. provides in rights. appellant’s constitutional part: opposing Supporting affidavits shall be quote pleading almost and in the is taken 9. knowledge, set forth personal shall Supreme case relied made from the verbatim making argument. be admissible evi- by appellee such facts as would upon copies of certified all quote dence.... Sworn or That is as follows: producing and demonstrating error den sig- of of the consideration impedes pleading affirmatively to show sufficient must “a record Appellant the statement. nificance of v. Stan Cobb See occurred.” failure that error consequences any bear 110, 111 Inc., A.2d Co., by Su- required Drug as dard opposition support the & Cabe Tung W.T. However, foregoing (D.C.1982); also see 56. per.Ct.Civ.R. (D.C. n. a 269-70 Inc., more than A.2d Co., to be no quotation appears a so. to do legal proposition failed 1985). of the has Appellant reiteration wrongs is not viable action section 1983 granting order court’s Although the trial remedies. provide courts local for which without entered supra, Philadelphia, City See Cohen Judge Ferren agree with opinion, I cannot standing opinion, my 81. F.2d at consid- was not issue acquiescence that the legal argument alone, quote from a this by the trial properly resolved ered and appel- regarded as evidence cannot be argued specifically Appellee court. acquiesced to or lee assented memorandum theory in his claim-splitting tort action in separate of a filing of sum- support authorities points Court, insufficient evidence and it is his plead- from excerpts as mary judgment, initial to rebut acquiescence in footnote 9 ing, reproduced are which showing summary judg- of entitlement supra, agrees show.11 Ferren ment. appellant sought to defeat the motion best, appellant offered no more than a At of acquiescence. There no reason availability conclusory assertion conclude that the trial court failed acquiescence. conclusory evidence of A as record, examine required as it was sertion is insufficient to defeat movant’s do,12 pertinent or failed to apply legal all prima showing of entitlement facie principles reaching its decision. Since summary judgment as a matter of law. appellant asserted may what he viewed as See Spellman v. American Security legal theories consent or acquies- Bank, N.A., 504 (D.C cence, the trial court necessarily considered 1986). The opposing party must rebut that as a matter of law the effect of the motion showing with specific evidence which sup to stay claim of consent or ports legal theory. See id. In my acquiescence. supra note 3. opinion, appellant’s opposition to the mo tion failed to meet that For burden. Nor reasons stated previously, the anything there else in the legal record on appeal effect of the timely filing of another which supports the claim pending con preclude is to operation of sented to or acquiesced in defending sepa any presumption of waiver of preclu- rate lawsuits. If there were such evidence sive effect judgment. former If record, it is appellant who has the bur- there is reason for the trial court to have papers parts thereof referred to in single an affi- facts, operative core of they constitute davit shall be attached thereto or served there- identical causes of action for pur- with - aWhen poses. motion for summary judg- Although single group this of facts ment is made supported may provided conceivably give rise to both federal Rule, this adverse claims, claims upon negligence rest relief and under allegations definition, mere single denials of the adverse of action cause Thus, party’s pleading, remains but ... the federal party's adverse re- sponse, by precludes plaintiff doctrine litigating affidavits provided or as otherwise Rule, matters that he this could have specific must raised in the set forth facts lawsuit, previous including negligence, showing that genuine there is a issue for trial. were within the pendent juris- federal court’s Appellee diction. argued, alia, Ware inter point: considering summary judg- motion for Applying the federal definition of a ment, "cause of the trial court indepen- must conduct an action” and single the rule splitting a record, dent review of the at least in the factual case, cause of prior action to plaintiffs this legal presented by parties. context Ves- rights civil negligence action and the Columbia, instant sels v. District 1018- operative (D.C.1987); action arise out of the same core of World, Thompson see v. Shoe facts, Inc., supra, ... Since the two lawsuits involve this 569 A.2d at 189.

554 upon confer could that of the defendant bur appellant’s it is otherwise, concluded presump forum, was non-existent. jurisdiction a is den There demonstrate it. judg trial court’s validity tion the of the Judge felt Ferren neverthe Apparently, ment, upon appellant the is burden upon it incumbent our court less that was trial court the the convince court that impact judg examine the asserted “In Cobb, supra, A.2d at erred. 453 Gilles court in ment of the federal district duty burden, meeting that isit Touchstone, v. suffi a record present court this with of res judica- (D.D.C.1987), as the doctrine oc error affirmatively that cient to show only the reason advanced the ta was this Id. The record appeal curred.” granting for its motion for sum District of error. support a claim does not established, is well mary judgment.1 It presumption Given the absence of sua however, suf appellate show court that waiver and failure dis factual jurisdiction supporting judicial ficient a of a sponte evidence take notice pute legal theories predicated on defect, the irrespective of whether such al court the trial acquiescence, consent or parties the the lower point made was for properly granted Langley See v. at all. court or even raised effect based on the res Columbia, 277 A.2d 101 (D.C. District of the prior the Accordingly, for judgment. 1971). is It also fundamental if a Reilly foregoing Judge reasons, join I with ground sup some valid record discloses in affirming court. the trial the decision judgment the trial porting court —in decision of an contradistinction admin REILLY, Judge: Senior judgment agency istrative should —such analy concur Ferren’s with v. Chenery SEC appeal. not be vacated sis of the juris question pendant thorny Corp., 318 U.S. L.Ed. diction that a his conclusion Franklin, also Colautti judgment by a plaintiff entered n. S.Ct. U.S. district court an action is a bar to (1979); Dandridge L.Ed.2d the Superior set the same based on Williams, 471, 475 n. S.Ct. of facts, but set advancing a different (1970); 1156 n. 25 L.Ed.2d allegations, if allegations such could have Irish, Marinopoliski v. been incorporated com into the federal plaint. (“A (D.C.1982) lower court decision must But, I disagree his final con (Part correct, clusions IV), despite affirmed the result is the judgment the should be upon wrong reversed remanded fact that the court ‘relied the and the case for trial on ground ”). the District ground gave wrong reason.’ (defendant in actions) right to both its lost opinion, challenged judgment my invoke by failing defense as a summarily should be affirmed without to raise a split timely objection to reaching question at all. ting. The excerpt (Sec Restatement appellant kept away Had from the federal ond) on Judgments, on which 26§ complaint only district court and Ferren relies, is at cases where directed Court, the latter would have each of the courts in which option had no other than to dismiss on maintaining separate was vested actions grounds, only jurisdictional with jurisdiction totality of all decide empowered grant relief from the errone- claims asserted. situa Such tion suspension ous revocation of portrayed driver’s by illus commentator’s tration. In my view, license the Bureau of however, Motor Vehicles where the trial court, as in the us, case before Services this court. A provision in the never to entertain appellant’s governing statute, ac D.C.Code tion, neither consent nor part waiver (1981), makes crystal this clear. It was not until this was filed ground alternative affirming jurisdictional adverted to the issue as an of the trial court. Ferren’s of the facts Rental Accommodations Com As Columbia (D.C.1980). mission, 411 A.2d discloses, damages by ap- incurred all (loss wages, rejection peti- of of his pellant citizenship, etc.), from a stems

tion

bookkeeping error which by the Bureau proposed

resulted a notice of revocation license, alleging his a record

of driver’s totalling showed traffic

which violations points. Appellant appeared at the

some hearing deny scheduled commission HOLMES, Appellant, v. O. Clinton offenses, hearing ex- such traffic but his ruled him and revoked aminer STATES, Appellee. UNITED license. driver’s No. 91-CM-671. his Although appellant aware of was right appeal examiner’s decision Appeals. District of Columbia Review, Appeals the Board Sept. 16, Submitted 40-631, (1990),2he did D.C.Code -364 §§ Oct. Decided so, right. this he done not exercise Had and had the Board refused to correct point which the score

record on erroneous based, judicial he could

was have obtained by filing petition here

redress for review 1-1510, accompa-

pursuant to D.C.Code § by to stay agency

nied a motion order. v. District Bu-

See Columbia Kuflom Services, reau Motor Vehicles (D.C.1988). year

It was not until a after the revoca- appel-

tion order had become effective that

lant letter of counsel to the head

agency challenge steps took

legality By of such time his order.

failure to exhaust administrative reme- judicial had cost him his review

dy right

in this court. Gosch v. District Colum- Services, Department Employment bia (D.C.1984). A.2d 956

Obviously, person who suffers harm

his own failure a decision challenged pre- arguably

could —and dam- standing no to recover vented—has con-

ages in a trial for the collateral

sequences availing of not himself of his

legal rights. DeLevay v. District of however,

2. At oral argument, ap- caused him explained that the revocation decision counsel right pellant damage, of administra- did exercise his the Hackers financial real hardship appeal, because re- tive sulting the financial suspended petition his cab and his Board license allevi- from the order of revocation was down because for naturalization turned license ated the issuance of a restricted apparent persistent as a violator record during operate enabled him to his taxicab traffic laws. Eventually, daylight days six hours a week.

Case Details

Case Name: Gilles v. Ware

Court Name: District of Columbia Court of Appeals

Date Published: Oct 6, 1992

Citation: 615 A.2d 533

Docket Number: 89-CV-1436

Court Abbreviation: D.C.