228 F. Supp. 506 | D. Mass. | 1964
This is a civil action for an alleged breach of an employment contract. Jurisdiction of this Court is based on diversity of citizenship. The matter is before the Court on the defendant’s motion to dismiss. A previous suit had been filed in Suffolk Superior Court involving the same parties and the same factual and legal issues. It appears from the Superior Court records, certified copies of which have been filed with this Court, and from oral argument before this Court, that a demurrer to the complaint was sustained with the plaintiff given leave to file a motion to amend. Plaintiff then filed an amended complaint without having filed the requisite motion to amend. This complaint was subsequently stricken from the docket and returned to counsel for plaintiff as having been filed and docketed through clerical error. Judgment was entered for the defendant and execution issued. A motion is now pending in Suffolk Superior Court to vacate this judgment. Defendant’s contention to this Court is that the instant action is barred by the principles of res judicata.
Where a prior judgment in the same cause of action between the same
The motion to dismiss is allowed.