*1 MAYS, Circuit Judges; and District April 2012. Judge.* MAYS, Judge. District Plaintiff-Appellant Kenneth Demsey (“Ken Demsey”) appeals the order of the district court dismissing complaint against Nancy Demsey (“Nancy Demsey”). In the complaint, Ken Demsey seeks relief under 42 U.S.C. personal for inju- ry, humiliation, and mental and emotional distress. Ken Demsey was arrested on May sister, after his Nancy Dem- sey, called the Parma City Police Depart- ment response to a dispute. domestic Ken Demsey pled later no contest to crimi- nal charges. He filed two successive suits his sister Ohio state court alleg- alia, ing, inter abuse of and inten- tional infliction of emotional distress. Both were dismissed voluntarily, and Ken Demsey filed in the United States District Ohio, Northern District of alleging violation of That 1983. suit was sponte sua by dismissed the district court because Ken perfect did not ser- days. vice within He then filed the suit, his fourth. The district court under the “double dismissal rule,” provides which two voluntary dismissals of a case consti- * Jr., Tennessee, Mays, The Honorable Samuel H. sitting by United designation. Judge States District for the Western District *2 (Compare tion, distress. and emotional Dem- merits. Ken on the
tute a dismissal ¶¶ Compl. III 1-5 with Demsey erred in Compl. the district court sey contends ¶ 1-5.) Demsey’s Ken rule. See Demsey in I Unlike the double applying in 41(a)(1)(B) III he Demsey and in proceedings, state court Fed.R.Civ.P. 41(a)(1). Demsey Nancy damages against sought § 1983 and U.S.C. 42 U.S.C. under
I. BACKGROUND ¶ 7.) 1985(3). Demsey in III (Compl. Nancy Demsey called May Demsey On alleged that Ken complaint in re Department Police City the Parma [Nancy “by the actions of damaged dispute with her a domestic sponse conjunction in conspiracy and Demsey] in Demsey in brother, Demsey. (Compl. Ken ¶ 6.) (Id. On City Police.” the Parma with 1.)1 result, ¶ Ken As a No. ECF TV court sua the district December first and filed his Demsey was arrested Demsey pursuant III sponte I, in Demsey, Demsey Nancy against suit 4(m), be- Rule of Civil Federal County Court Common Cuyahoga to serve Demsey had failed cause Ken CV-6-602999, Pleas, on October No. Case days filing Demsey within 120 Nancy Demsey alleged two 2006. Ken (Order III, Demsey in complaint. third claims, negli and process abuse of law 18-8.) ECF No. dis infliction of emotional gent/intentional 6, 2009, Demsey Ken filed On March I, 18- Demsey in ECF No. (Compl. tress. IV.) He (Compl. Demsey in Demsey IV. 2.) voluntarily dismissed Demsey Ken “deliberately Nancy Demsey alleges that July on Demsey prejudice I without I, (Journal cause made Demsey probable in ECF and without Entry 2007. 18-3.) complaint fraudulent groundless No. and Municipal in the the Plaintiff Demsey Ken On November Parma, Ohio,” Demsey in (Compl. Cuyahoga complaint refiled his ¶ 1), the Parma Po that she “caused Pleas, No. Common CV- County Court of to send officers Department lice Demsey 07-641553, Demsey (Compl. II. in in order to Demsey] of [Ken the address 18-5.) II, Demsey alleged No. ECF ¶ (Id. 2), [him],” he was and that arrest claims, state law abuse the same two [Nancy Dem by the actions “damaged infliction negligent/intentional and (Id. 3-4.) conjunction conspiracy with and sey] He vol of emotional distress. ¶ (Id. 6.) City Police.” Demsey May II on the Parma untarily dismissed II, (Journal Demsey Entry complaint ECF court dismissed his 2008. The district 18-6.) (Order IV, Demsey No. May 2010. 26.) found The district court ECF Demsey filed a On June Demsey “involves the TV on the same trans- based complaint, third II,” the same Demsey I and Demsey occurrence, in the Northern Dis- or action incident, claims that could have 1:08-CV-01571, Ohio, case number trict of court. The district asserted in state III, Demsey ECF Demsey (Compl. III. that there had been concluded 18-7.) complaints in state Like his II that Ken Demsey merits in court, falsely he arrest- alleged it that was bringing from Demsey injury, humilia- physical suffered ed and in which were filed. styled on the order separate cases based are four 1. Because there from the district numbers are taken All ECF Demsey Demsey, we refer to them as Dem- III, IV, II, I, IV. court docket for sey (Id. by double dismissal rule. Cir.1962)). Rule 41(a)(1)(B) now appeals. “was intended to eliminate the annoying of a defendant being sum II. STANDARD OF REVIEW *3 moned into court in successive actions and then, if no at, settlement We review a is arrived requir district court’s decision grant ing a him to permit motion to dismiss de novo. action to Jones be dis Cincinnati, v. City 555, missed 521 F.3d and another one 559 commenced at leisure.” (6th Cir.2008). Coo We must ter & “accept as true Gell v. Hartmarx Corp., all non-conclusory allegations 496 com 2447, 110 S.Ct. 110 plaint and (1990) determine whether they a state L.Ed.2d 359 (quotations and cita plausible claim for relief.” Delay v. omitted); Ro tions see also 9 Charles A. LLC, senthal Grp., 1003, Wright, Collins 585 F.3d Arthur R. Miller & Edward H. (6th Cir.2009). 1005 Because it is ques Cooper, Federal Practice ANDProcedure law, tion of we also review ‘“de (3d novo ed.2010). § 2368 Federal Rule of Civil district court’s application of res judica 41(a)(1)(B) Procedure does give not a dis ” ta.’ Buck Sch., v. Thomas M. Cooley Law preclusive missal effect when the second (6th 812, Cir.2010) 597 F.3d 816 (quoting action filed in was state court. See Gab Bragg v. 775, Flint Bd. hart v. Regional Ctr., Craven Medical (6th Cir.2009)). 776 764240, *1, at 1995 37123, (4th U.S.App. LEXIS at Cir.
III. ANALYSIS 1995) 28, (“[T]he Dec. two dismissal rule Federal Rule of Civil Procedure generally does not apply federal cases if 41(a)(1)(B) provides that: the second dismissal in a
Unless the or stipulation court.”); notice states Stearman, Stewart 743 otherwise, the 793, (D.Utah dismissal is without prej- 1990) F.Supp. 794 (finding udice. But if plaintiff previously the rule does apply when there were any federal-or state-court ac- court.”). “two dismissals in state There is tion based on or including the same however, an exception, when a state has a claim, a notice operates of dismissal as rule similar to 41(a)(1)(B), Federal Rule adjudication an on the merits. because federal courts give prior must judgments preclusive effect. voluntary “[A] dismissal under Fed. 41(a) 324, (6th Abbott v. Michigan, 474 F.3d 330 R.Civ.P. has the effect of a judgment Cir.2007) 1738); (citing 28 prejudice U.S.C. see when ... it is the second also Microvote Corp. Casey, suit based on 94- same transaction.” 3890, *2, 1995 Anderson v. Aon 1995 Corp., 614 F.3d Cir.2010); U.S.App. at *6 accord Randall v. Cir. Merrill 1995) (D.C.Cir. June Lynch, (applying F.2d Ohio’s 1318-19 version of 1987); Tate v. the double Servs., dismissal rule Riverboat when the third (N.D.Ind.2004). F.Supp.2d court). in federal “Be cause of the 41(A)(1)(b) ease with Rule of which a voluntary Civil states may secured, dismissal in part courts that “notice of operates held dismissal have that the adjudication two-dismissal rule was an ‘practically upon the merits of necessary prevent an claim that the unreasonable use has once dismissed ” of dismissals.’ 41(A)(1)(b). Loubier v. in any Modern Acous court.” Ohio tics, (D.Conn.1998) 178 F.R.D. The Ohio Supreme Court has decided that (quoting Engelhardt Co., v. Bell & valid, Howell final judgment “[a] upon merits *5, App. upon any based subsequent actions all
bars
(Ohio
Sept.
Ct.App.
at *15
or oc
of the transaction
arising out
subject matter
that was
currence
seeking
party
requires
law
Park
Grava
transaction.”
four elements:
judicata prove
invoke res
St.3d
Twp., 73 Ohio
man
1)
final,
decision
valid
A
(1995).
a valid
If there has been
juris-
competent
by a court of
Rule
to Ohio
pursuant
aof
case
diction;
41(A)(1)(B),
of Civil Procedure
involving the same
action
second
A
on the merits
adjudication
an
first;
privies as
or their
*4
the
of
arising out
subsequent claims
bars
3)
claims that
raising
second action
A
that
or occurrence
“the transaction
litigated
or could have
were
that were
of the suits
subject matter”
the
action; and
first
the
Id.
dismissed.
out of the
arising
second action
A
of claim
view
expansive
takes an
Ohio
that
or occurrence
transaction
Grava,
Supreme
In
preclusion.
of the
subject matter
beyond its
judicata
expanded
action.
that
formerly held
limits. Ohio
traditional
Fordu,
703-04
In re
action
in a
or decree
former
“[a]
Edwards,
Cir.1999);
v.
Hillman
accord
action where
subsequent
not bar
[did]
10AP-950,
same, even
not the
of action are
causes
(Ohio
2279, at *9
App.
2011 Ohio
same
action relates
though each
2011).
of
Application
Ct.App. June
(citation omit-
228
matter.” Id. at
subject
Demsey’s suit re-
to Ken
those factors
ted).
updated
Supreme Court
The Ohio
action.
of his
quires preclusion
preclusion:
view of claim
its
correctly
concluded
district
theories
legal
a number of different
That
final,
valid decision
had been
may apply to
liability
an actor
casting
Demsey II
Demsey I and
merits.
multiple
not create
episode does
given
identical, involving
parties
the same
were
claims.
multiple
hence
transactions and
claims for
state law
alleging the same
several
although the
remains
This
true
negligent/intentional
abuse of
shad-
depend on different
legal theories
(Compl. in
infliction of emotional distress.
facts,
emphasize
or would
ings of the
II.)
I;
Both
Compl. in
facts, would
of the
or
different elements
(Journal
voluntarily.
En
were dismissed
liability or
measures of
call for different
I;
Entry
Dem
Journal
try in
kinds of relief.
II.)
operates
sey
“Notice
(Second)
(quoting
at 229
Id.
Restatement
any
merits of
upon the
adjudication
(1982)).
Judgments
the pur-
“For
24
has once
that the
analysis, a ‘transac-
judicata
a res
pose
41(A)(1)(b).
R. court.” a ‘common nucleus
is defined as
tion’
”
parties
that the
Demsey contends
Nat’l Ass’n
facts.’
Bank
operative
U.S.
complaint
because
are
Gullotta,
899 N.E.2d
different
120
St.3d
Parma
“the
(2008)
Grava,
alleges
653
(quoting
[Nancy
in a
part
conspiracy
took
only
bars
preclusion
“Claim
Demsey while
Demsey],” arresting Ken
also all
litigated,
that were
but
claims
all
eyeshot
[Nan
“in
earshot
grow-
were
litigated
have been
that could
claims
corner of
at the
Demsey],
stood]
cy
[who
Price
transaction.”
ing from
Reply Br.
(Appellant’s
Co.,
street.”
Lumber
Carter
contends that “there is no Demsey “does not claim that
the state
case law or
...
statute
requires
new court would
adjudicated
not have
fed
[his]
actors to
named
as a formal ‘party.’”
eral claims had
presented
[he]
them in
(Id.) (emphasis in the original).
argu
His
original
[his]
suit in state court.” Migra v.
ment
is unpersuasive.
Claim
Warren
School
of Educ.,
Dist. Bd.
“bars further
by parties
or their
75, 84,
U.S.
104 S.Ct.
litigation.”).
here,
as
the parties
In
IV,
his complaint in Demsey
Ken
are the
same as the
in
previous
Demsey alleges that his civil rights were
action, the claims must be dismissed. Ater
violated because Nancy Demsey called the
Follrod,
v.
238 F.Supp.2d
937 police, which led to his arrest.
(Compl. In
(S.D.Ohio 2002).
¶¶ 3-8.)
Demsey IV
He contends that she
conspired
Section
police
1983 claims
with the
litigated
can be
in
because she
state court
called them
proceedings.
and was
he
Anderson-Keri
when was
(Id. 10-11.)
v.
99-1083,
Detroit Bd.
No.
arrested.
original
1999
His
com-
1206867, *1-2,
WL
at
plaint alleged
U.S.App.
1999
LEX
that
made a
police
she
false
IS
9, 1999).
at
report
Cir. Dec.
that
led to
injury.
his arrest and
¶¶
Ohio courts have
1-5.)
subject
(Compl.
“concurrent
in Demsey
mat
I
He did not
jurisdiction
ter
over
actions
allege
under
that he was
until
disabled
the Com-
Dexter,
1983.”
[§ ]
Besser v.
plaint
III,
68
but he does not
(1990).
App.3d
589 N.E.2d
Ken assert
that he could not have alleged his
raised
were
present [case]
He
issues
complaints.
previous
disability in
Pittman
proceedings.”
state
[ ]
not matter
It does
have.
could
SEIU,
Local
Org.,
v.
Corr.
Mich.
contained
complaints
fourth
third
(6th Cir.2005);
also
see
Fed.Appx.
theories”;
have raised
he could
legal
“new
Whitehall,
F.3d
City
Banks
Z,
Cleve-
A to
Inc.
them before.
Cir.2003)
that “sec
(recognizing
1:05CV2137,
WL
land,
best characterized
tion 1983
[are]
43666, at
*10-11, 2007 U.S. Dist.
damages
recovery of
for the
actions
tort
(N.D. Ohio June
*29-30
injuries.”).
for personal
no
that there was
Demsey contends
is no
Demsey argues
Par-
with the
involving conspiracy
“claim
because
or occurrence
transaction
common
after the
... until
Department
Police
ma
allege state
Demsey Demsey III and
Re-
(Appellant’s
decided.”
case was
1.) This
Br.
(Appellant
involvement.
report as
police
He cites the
Br.
ply
occa
recognized on numerous
(Summary
this conspiracy.
evidence of
suit bars
law tort
that a state
sions
Br.)
(Exhibit A),
Reply
Appellant’s
Report
Martin, 7
§ 1983 suit. See
subsequent
Nancy
only
report states
police
(holding plaintiffs’
at 494
Fed.Appx.
report
police
domes-
Demsey called
because of
suit barred
(Id.)
Demsey’s com-
tic violence.
infliction of
intentional
court for
Nancy
alleges
I
plaint
Cumberland,
distress);
Green
emotional
knowingly
made a
“deliberately
I
(Compl.
report.”
false
*6
2247, at *3-4
U.S.App. LEXIS
¶
con-
1.)
aware of the
Demsey was
1999)
9,
§ 1983 suit
(dismissing
Feb.
Cir.
he filed his first
when
alleges
he
spiracy
due
of claim
grounds
on
have
his
He could
asserted
complaint.
court).
in Ohio state
suits
previous
three
claim then.
Ohio,
pre
applying
courts in
District
Demsey IV
is
factor whether
The final
subse
have also barred
principles,
clusion
or occurrence
of the transaction
arises out
state suit
§
where
quent
1983 suits
Demsey I
of
subject matter
that was the
or occur
the same transaction
from
arose
Fordu,
at
201 F.3d
II. In re
Demsey
and
Ohio,
LLC
Keymarket
See
rence.
of
II,
I,
Dem
Demsey
and
Demsey
703-04.
2:08-CV-325, 2009 WL
Keller, No.
allegedly false
from an
stem
sey IV all
*5,
LEXIS
2009 U.S. Dist.
at
on
police
the Parma
2009)
made to
report
police
(S.D.Ohio
Sept.
at
¶ 1;
in
I
(Compl.
May
2005.
in
§ 1983
federal
plaintiffs
suit
(dismissing
¶ 1;
Dem-
Compl. in
Demsey II
Compl. in
arising
suit
it had
because
court
¶ 5.)
complaints,
court);
In all three
sey IV
in Ohio
from the same occurrence
injured
Trs.,
and
police
Demsey alleges
Twp.
C2-04-
v. Berne
Dennis
¶ 3;
*4,
I
in
(Compl.
CV-1185,
him.
humiliated
2006 WL
¶
(S.D.Ohio
3;
Dem-
Compl. in
at *13
Demsey II
Compl. in
Dist.
2006)
¶
§ 1983
6.)
Jan. 24,
(dismissing plaintiffs
his federal
He now contends
sey IV
previ
of
“plethora
police
of
because
entails a
defendant
cause of action
1)
action);
Koury v.
Br.
court
Reply
ous state
activity” (Appellant’s
of
104-CV-02248,
suits,
Canton,
first
but
his
state
not
Dist.
2005 U.S.
in
physical
were based
complaints
two
(N.D.Ohio
Oct.
at *33
and humiliation
imprisonment,
jury, false
§
because
1983 suit
(dismissing plaintiffs’
(Compl.
police.
of the Parma
at the hands
out of the
¶¶
in
“arose
1-5.)
their suit
constitutional
“[T]he
in
I
fact.”).
same core
operative
Ken Dem
and that “the facts bearing on the appro
§
sey’s
claim is
198S
“so
priateness
interrelated that
remedy
... would be
should
[it]
have been tried at the
same.” Id. The facts bearing on the
time”
as his
claims. Wilkins v.
resolution of Ken Demsey’s state law
(S.D.Ohio
Jakeway,
F.Supp.
claims and his
1983 claims are the same
require
preclusion.
Ken Demsey
Manicki
cites
counsels in favor
from
language
precluding
Man
Zeilmann,
Demsey’s
icki v.
suit in
federal
court.
Cir.
His
2006),
1983 suit
is merely a “tort
support
argument
his
that there
for
action[ ]
the recovery
were
separate
damages for personal
occurrences.
inju
Manicki sup
Banks,
ries.”
ports the
The filed court, suit in federal alleging a 1983 claim for violation of the In Berry Berry, No. 1993 WL First Amendment. Id. He contended that (Ohio App. Ohio LEXIS 3805 there were “two separate of clusters facts Ct.App. July 1993), the court declined ... the first being the police deny board’s apply to claim preclusion to a mother’s ing him a predeprivation hearing ... and claim for additional child support when the the second (though time) it came first in first suit had been dismissed lack of for ... being [his] dismissal and hence the personal jurisdiction. Id. at *11-12. The filing of the first suit.” Id. at 925. The recognized that, “[if] the court which Seventh disagreed, Circuit holding that only is the proper forum for a case denies “they are not really separate, except in not relief for lack jurisdiction, of ‘the question being simultaneous; together they consti judicata, is res even though the judgment ” tute the circumstances of plaintiffs] [the is erroneous.’ Id. at 10 (quoting E.H. dismissal ‘form a convenient Annotation, trial Schopler, Res Judicata Effect ” unit.’ Id. (quoting Mpoyo v. Litton Elec Judgment Action, Dismissing Other- or tro-Optical Systems, Denying wise Relief, Lack Jurisdic- (9th Cir.2005)). The Venue, court observed that tion or 49 A.L.R.2d Section “the ultimate relief sought” (1956)). was the same Nevertheless, fn. 20 the court his heard to have claims opportunities based on preclusion claim apply to
declined voluntarily proceed. chosen not case. It reasoned of the the circumstances incorrect, first, deter- that, the if it treated relies Fender Demsey also on Ken a matter of jurisdiction mination of Miles, App.3d 185 Ohio would be plaintiff the preclusion, claim a (2009), held that where the court for in- from petitioning “forever foreclosed by the by a child suit venue of the support child [the creased “privity suit because unsuccessful parent’s The court con- at 12. Id. defendant].” parent- a not arise out of does generally “mani- result would that such a cluded the relationship, especially [where] child par- plaintiff and unjust to the festly are differ- parent and child interests of strong public against “the ties’ child” chil- depriving held that ent.” The court well-being the continued insuring policy day in court” because “of dren their minority.” their throughout of children “work prior suits parents’ their propo- Berry stands for the 12-18. Id. at Id. concludes injustice.” Fender serious applies to all res sition to the applies only claim injus- claims, strong showing of absent ad- it does not privies; parties and their any not shown that Demsey has tice. Ken party. claims repeated dress avoiding justifies policy strong public that he dismissed concedes case. judicata in (Appel- suits in state his first two court. on Demsey also relies Builders Rule of Br. Ohio Civil lant’s Smith, Group, L.L.C. Dev. 41(A)(1)(b) states, “notice part, that App. LEXIS 2010 WL adjudication upon anas operates (Ohio The Ct.App. Sept. any merits of claim that Development Group in Builders defendant court.” has once dismissed the own- preclusion because invoked claim 41(A)(1)(b). Demsey has had Development Group first er of Builders may not clothe days in He two court. capacity in his brought suit individual legal theories” defeat in “new claim should have when Z, Inc., A preclusion. liability company. Id. at by the limited 1746622, *10-11, 2007 U.S. Dist. *10. App. 43666, at *29-30. “legal it that was concluded plaintiffs had say fiction” to when
been dismissed IV. CONCLUSION *8 original plain- because the were dismissed dis- Demsey’s properly claims were wrong capacity. brought suit the tiff had rule. the double dismissal missed under “legal that it is Id. Ken contends is AF- of the district court judgment The case was also conclude fiction” to FIRMED. Builders De- the merits. But decided on where was a suit velopment Group MOORE, Circuit KAREN NELSON merits be- decision on the been no had judgment. in the concurring Judge, had of the cause one judgment agree I concur *3-4, 2010 Id. at named. properly Demsey’s claims are that Ken majority Here, 3523, at *10-11. App. undisputed It by judicata. is named, barred res but Ken properly parties were and then Demsey previously filed that Ken his suit voluntarily dismissed ac voluntarily two state-court injustice dismissing is no twice. There de Demsey, the sole Nancy tions he has had two complaint when plaintiffs fendant action. See R. 18-3 under the law of the State in I, (Demsey CV-06-602999, Journal Entry which the judgment rendered.”); 7/10/2007); II, R. 18-6 (Demsey No. CV- Bank Nat’l Gullotta, Ass’n v. 120 Ohio 07-641553, 5/27/2008). Entry Journal St.3d (2008) voluntary dismissal of the suit con second (holding judicata res barred subsequent stitutes adjudication an on the pur complaint premised on same note and suant to Ohio Rule of Civil Procedure mortgage). The fact that Ken Demsey 41(A)(1) and therefore preclusive carries § asserts U.S.C. previ claims not effect in federal Scoles, Olynyk court. ously raised in state court does not alter St.3d 868 N.E.2d this result. Migra, 465 83-85, U.S. at (2007) 258-59 (recognizing that while the 892; S.Ct. Anderson-Keri v. Detroit Bd. federal and Ohio double-dismissal rules 99-1083, “are not identical” they do many “share 9, 1999) Cir. Dec. (unpublished common features” and are enough “similar (Res opinion) judicata “applies to civil interpreting cases two- federal rights actions under 42 U.S.C. 1983 with dismissal rule fully are relevant” to inter respect to issues preting actually litigated Ohio’s rule); double-dismissal in the see Wright also 9 courts ... well as those issues Charles Alan & Arthur Miller, were not raised but could have been Federal Practice & (3d 2010) (“[I]f ed. the state has a litigated in the state court proceeding.”). rule comparable to Rule [Federal] [of Civil Accordingly, the complaint is properly dis 41(a)(1), Procedure] state missed.
court be an adjudication on the mer
its in the state by virtue
rule bar, and would as would adjudica
tion merits, a new suit in a federal
court.”).
The present suit arises from the same
events at issue in the prior state-court namely, the arrest and criminal suits—
prosecution of Ken Demsey resulting from
statements made Nancy Demsey to the
police. See Corp. Microvote v. Casey, No. at *2 Cir.
June (stat (unpublished opinion)
ing bars subsequent “it where is clear that set facts” issue suits “is
necessary to sustain” the claims presently
asserted). Therefore, under preclu law,
sion Ken Demsey is barred from liti GUY, Sr., Keith al., et Plaintiffs, gating federal court. Migra v. Warren Sch. Bd. Dist. 104 S.Ct. (1984) (“[A] Doe, IV, John 1-45;
L.Ed.2d 56 # federal Doe, Jane must give to a state-court # Plaintiffs-Appellants preclusive effect as would be given that Cross-Appellees,