Mowry

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

BEVERLY R. MOWRY, Individually, as ) CASE NO.: 5:25-cv-00392

Executor of the Estate of David C. Mowry, )

deceased, and as personal representative of the )

heirs and next of kin of David C. Mowry )

) JUDGE JOHN R. ADAMS

Plaintiff, )

)

v. ) ORDER

)

UNITED STATES OF AMERICA, )

)

)

Defendant. )

Pending before the Court is Defendant’s Motion to Dismiss pursuant to Fed. R.

Civ. P. 12(b)(6). Doc. 13. Plaintiff Beverly R. Mowry, Executor of the Estate of David C.

Mowry, deceased, and personal representative of the heirs and next of kin of David C.

Mowry, has opposed the motion. Doc. 14. Upon review, the Motion to Dismiss is

GRANTED.

I. Background

Plaintiff brought this suit against Defendant under the Federal Torts Claims Act

(“FTCA”) (28 U.S.C. § 2671, et seq. and 28 U.S.C. § 1346(b)(1)) and Ohio’s wrongful

death statute (O.R.C. § 2125, et seq.), claiming that a USPS employee’s negligence while

driving caused his vehicle to strike Decedent, which directly and proximately resulted in

Decedent’s wrongful death. Doc. 1, PageID #5. This suit follows a prior one based upon

the same incident. See Mowry v. United States, No. 5:19-cv-0627, 2023 WL 3069359

(N.D. Ohio Apr. 25, 2023).

In the prior suit, David Mowry (“Decedent”) and Beverly Mowry (“Mrs.

Mowry”) sued the United States of America under the FTCA, an Ohio statute prohibiting

negligence while operating a motor vehicle (O.R.C. § 4511.43(A)), and a common law

claim for loss of consortium. Id. at *1, 6. On July 16, 2017, Decedent was riding his

motorcycle through an intersection when he was struck by a USPS delivery truck. Id at

*1. The truck collided with Decedent’s left side, propelling him and the motorcycle down

the road while Decedent clung to the delivery truck’s front grill. Id. Subsequently, the

truck ran over Decedent’s lower left leg before stopping. Id. He was transported to the

hospital where he was diagnosed with open segmental comminuted fractures of the tibia

and fibula in his left leg. Id. He underwent surgery, during which he received a plate and

screws on his outer fibula and a rod and screws through his tibia. Id.

Decedent’s recovery was not without complications. Despite a month-long stay at

a rehabilitation center, medications, and home care provided by Mrs. Mowry, the injured

leg developed necrosis due to infection. Id. Several surgeries and skin grafting were

necessary to treat the infection. Id. at *2. Additionally, as a result of the surgeries and

antibiotics to treat the infection, he developed kidney problems so severe that he was

eventually diagnosed with acute renal failure and had to be on dialysis 12 hours each day.

Id. at *3.

In a bench trial for this first lawsuit, this Court held that Decedent had met all the

elements of his negligence claim and was awarded $112,206.56 in economic damages

and $1,000,000 in non-economic damages for pain and suffering. Id. at *6. Additionally,

this Court held that Mrs. Mowry had proven her claim for loss of consortium, for which

she was awarded $250,000. Id. at *7. The parties later filed a joint Stipulated Notice of

Satisfaction of Judgment in which the Mowrys agreed to accept $1,362,206.50 as full

payment and satisfaction of the judgment. Mowry v. United States, No. 5:19-cv-0627,

Doc. 139, PageID # 5127.

The Complaint in this case informs that Mr. Mowry died just after the first case

was closed, on September 7, 2023. Doc. 1, PageID #2. It alleges that his death was a

direct and proximate result of the accident that was the center of the first case. Id.,

PageID #4. Mrs. Mowry, as Executor of Decedent’s Estate and personal representative of

Decedent’s heirs and next of kin, similarly brings a claim under the FTCA (28 U.S.C. §

2671, et seq. and 28 U.S.C. § 1346(b)(1)), but this time in connection with Ohio’s

wrongful death statute (O.R.C. § 2125, et seq.). Id., PageID #2. For the reasons that

follow, the Court holds that Plaintiff’s claim is barred by the doctrine of res judicata.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows the respondent to

move to dismiss the complaint for its failure to state a claim upon which relief may be

granted. Fed. R. Civ. P. 12(b)(6). The burden of proving that no claim exists is on the

moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue

Shield, 552 F.3d 430, 434 (6th Cir. 2008). In deciding a Rule 12(b)(6) motion, the court

must construe “the record in the light most favorable to the non-moving party” and

determine whether the complaint “contain[s] sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

Though courts are typically limited to the four corners of the complaint when

deciding a Rule 12(b)(6) motion, under certain circumstances they may consider extrinsic

evidence without converting the motion to dismiss into a motion for summary judgment.

Blackwell v. Nocerini, 123 F.4th 479, 486 (6th Cir. 2024). For example, courts may take

judicial notice of “public records” while preserving the motion to dismiss. Id. at 487

(citation omitted). Though not all public records may be treated as factually true, those

facts in a public record that “are not subject to reasonable dispute,” such as the Court’s

ultimate resolution of its prior case, are available for judicial notice. Id. at 487-88

(quoting Passa v. City of Columbus, 123 Fed. Appx. 694, 697 (6th Cir. 2005).

III. Analysis

Defendant argues that Plaintiff’s Complaint should be dismissed on the alternative

bases of res judicata, the FTCA’s judgment bar, and the one satisfaction rule. The Court

holds that res judicata bars the claims in this case, so it will limit its analysis to that

defense.

A. Res Judicata as Applied to the First Mowry Action

“The doctrine of res judicata precludes a subsequent suit between the same parties

based on the same claims or causes of action that were or could have been raised in a

prior action.” Fillmore v. Brush Wellman, Inc., 2004 WL 527167, *1 (N.D. Ohio Feb. 5,

2004) (citing Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)). Though

res judicata is an affirmative defense, it may be raised in a motion to dismiss. See

Westwood Chemical Co. v. Kulick, 656 F.2d 1224, 1228-29 (6th Cir. 1981) (“[I]t is now

clearly established that res judicata can also be raised by motion.”).

1. Res Judicata under Federal Law or State Law in FTCA Action

Though the parties agree, in principle, on the importance of res judicata, they

disagree on whether the Court should apply the res judicata rules under federal law or

Ohio law. Doc. 14, PageID #50; Doc. 15, PageID #60. The Sixth Circuit seems to have

not yet determined which res judicata rules to apply to a claim brought under the FTCA.

See Gardner v. U.S., 443 Fed. Appx. 70, 74 n. 1 (6th Cir. 2011) (declining to resolve the

issue because the district court applied federal law and neither of the parties disputed the

court’s decision).

There is a circuit-split on this issue. Filice v. United States, 271 F.2d 782 (9th Cir.

1959), appears to have been the first case to address it. In Filice, the plaintiff had

prevailed in an earlier case against the United States on a personal injury action brought

under the FTCA. Id. at 782-83. Alleging a “grossly inadequate” award of $15,000, he

sued the United States again. Id. at 783. The Ninth Circuit applied California’s res

judicata law to bar his later suit. Id. at 783-84. Several jurisdictions have followed

Filice’s lead. See Bowen v. U.S., 570 F.2d 1311, 1319 (7th Cir. 1978) (applying Indiana’s

doctrine of collateral estoppel to a FTCA claim); Simmons v. U.S., 865 F.2d 265 (9th Cir.

1988) (applying Washington’s law on claim preclusion); D’Ambra v. U.S., 396 F. Supp.

1180, 1181 (D.R.I. 1973) (applying Rhode Island’s law on collateral estoppel).

Other jurisdictions have found it proper to apply federal law. In Johnson v. U.S.,

576 F.2d 606 (5th Cir. 1978), the Fifth Circuit refused to follow Filice and its progeny.

Id. at 610. It identified several problems with the cases that followed Filice, noting that

some of them dealt with prior state court judgments instead of federal court judgments,

none involved a conflict between state rules of collateral estoppel and federal rules, and

even a few required the court to predict the state collateral estoppel rules because their

jurisdictions lacked controlling state decisions. Id. The Fifth Circuit also found that

Congress had “lodged exclusive jurisdiction in the federal courts over Tort Claims

actions, and [it] cannot believe that Congress intended state court rules to determine the

internal relationships among the federal courts particularly with regard to the effect one

federal court is to give the judgment of another.” Id. at 612. Accordingly, the Fifth

Circuit decided that federal principles of res judicata and collateral estoppel should apply

to claims under the FTCA. Id. As with Filice, several jurisdictions have adopted

Johnson’s approach. See Bazuaye v. U.S., 41 F.Supp.2d 19, 27-28 (D.D.C. 1999)

(applying the federal preclusion doctrine to a FTCA claim); Donohue ex rel. Estate of

Donohue v. U.S., 2006 WL 2990387, *4 (S.D. Ohio 2006) (applying federal law on res

judicata); Zia v. Wimmersberger, 544 F. Supp. 559, 561 (E.D. Penn. 1982) (applying the

federal collateral estoppel doctrine).

The Court is mindful that none of the cases immediately cited and discussed are

binding on its resolution of the threshold issue. That being said, the Court finds the

rigorous reasoning of Johnson to be the more persuasive of the two schools of thought.

Furthermore, the Court finds guidance in principles espoused by the U.S. Supreme Court.

“The preclusive effect of a federal-court judgment is determined by federal common

law.” Taylor v. Sturgell, 553 U.S. 880, 891 (2008) (emphasis added). In federal-question

cases, federal courts develop “uniform federal rule[s]” of res judicata. Id. (emphasis

added); but see Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001)

(federal law incorporates state-law preclusion in diversity cases). Neither party disputes

that a claim brought under the FTCA creates a federal-question case. Therefore, the Court

will apply the federal interpretation of res judicata to the present matter.

B. Federal Res Judicata as Applied to This Case

Res judicata is an umbrella term for two related though distinct concepts: claim

preclusion and issue preclusion. Sturgell, 553 U.S. at 892. Claim preclusion provides that

a final judgment prohibits “successive litigation of the very same claim, whether or not

relitigation of the claim raises the same issues as the earlier suit.” Id. (internal quotations

omitted). By contrast, issue preclusion bars “successive litigation of an issue of fact or

law actually litigated and resolved in a valid court determination essential to the prior

judgment, even if the issue recurs in the context of a different claim.” Id. (internal

quotations omitted). By enforcing res judicata, courts are able to “[prevent] the expense

and vexation attending multiple lawsuits, conserve[e] judicial resources, and foste[r]

reliance on judicial action by minimizing the possibility of inconsistent decisions.”

Montana v. United States, 440 U.S. 147, 153-54 (1979).

Under federal common law, a party asserting claim preclusion must meet four

elements: “(1) a final judgment on the merits by a court of competent jurisdiction; (2) a

subsequent action between the same parties or their privies; (3) an issue in the subsequent

action which was litigated or which should have been litigated in the prior action; and (4)

an identity of the causes of action.” Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir.

1995). “The party asserting the defense of res judicata … bears the burden of proof.”

Keymarket of Ohio, LLC v. Keller, 483 Fed. Appx. 967, 971 (6th Cir. 2012).

The Court can safely conclude that Defendant has satisfied elements one and four.

As mentioned previously, the first lawsuit ended in a bench trial in favor of Decedent and

Mrs. Mowry. See Mowry v. United States, No. 5:19-cv-0627, 2023 WL 3069359, *7

(N.D. Ohio Apr. 25, 2023). Such a result is clearly “a final judgment on the merits.”

An “identity of the causes of action” means an “identity of the facts creating the

right of action and of the evidence necessary to sustain each action.” Sanders

Confectionary Prods., Inc. v. Heller Financial, Inc., 973 F.2d 474, 484 (6th Cir. 1992)

(internal quotation omitted). In short, if the claims arose from the same transaction or

series of transactions, the final element is satisfied. Browning v. Levy, 283 F.3d 761, 773-

74 (6th Cir. 2002) (internal quotation omitted). The wrongful death claim in this case

arose from the traffic accident involving the USPS employee, Doc. 1, PageID #4-5, the

very event that yielded the claims in the first case for negligence and loss of consortium.

Mowry, 2023 WL 3069359, *5-7. Therefore, the Court will focus its analysis on the

remaining preclusion elements: whether this suit is between the same parties or their

privies as the first suit; and whether there is an issue here that was litigated or should

have been litigated in the first suit.

a. Same Parties or Their Privies

There is a general rule that “one is not bound by a judgment in personam in a

litigation in which he is not designated as a party or to which he has not been made a

party by service of process.” Sturgell, 553 U.S. at 893. However, that rule does not apply

where: “(1) the nonparty agreed to be bound by the prior judgment; (2) there exists a

‘substantive legal relationship’ between the person bound by the prior judgment and the

nonparty, including ‘preceding and succeeding owners of property, bailee and bailor, and

assignee and assignor’; (3) the nonparty was ‘adequately represented by someone with

the same interests,’ including class actions and suits brought by ‘trustees, guardians, and

other fiduciaries’; (4) the nonparty ‘assumed control’ over the prior litigation, such that

they already had their day in court; (5) a party bound by the prior judgment attempts to

relitigate through a proxy, such as where the person bringing the later suit is a ’designated

representative’ or agent for the person bound by the prior judgment; and (6) ‘special

statutory scheme[s]’ that foreclose successive litigation by nonparties, such as bankruptcy

and probate proceedings.” The 81 Development Co. v. Soil and Materials Engineers, Inc.,

2021 WL 868886, *11 (W.D. Mich. Mar. 9, 2021) (quoting Sturgell, 553 U.S. at 893-95).

The concept of “privity” generally encompasses those substantive legal relationships that

exist between individuals in successive cases that justify preclusion. Sturgell, 553 U.S. at

894 n. 8. “Privity is limited to a successor in interest to the party, one who controlled the

earlier action, or one whose interests were adequately represented.” United States v.

Vasilakos, 508 F.3d 401, 406 (6th Cir. 2007) (internal quotation omitted).

The defendant here (“United States of America”) was also the defendant in the

first suit. See Doc. 1, PageID #1; Mowry, 2023 WL 3069359. Accordingly, the resolution

of this element turns on whether Plaintiff here is the same party as the plaintiffs in the

prior case or is in privity with those plaintiffs.

In the Complaint, Plaintiff is named “BEVERLY R. MOWRY, Individually, as

Executor of the Estate of David C. Mowry, deceased, and as personal representative of

the heirs and next of kin of David C. Mowry.” Doc. 1, Page ID #1. Mrs. Mowry was a

plaintiff in the first action. See Mowry, 2023 WL 3069359 at *1. Therefore, insofar as she

is bringing this action in her individual capacity, she is the same party for preclusion

purposes.

Though not named in the Complaint, Decedent and Mrs. Mowry have a son and

daughter. See Mowry, 2023 WL 3069359 at *3-4. The Court will assume that they are

“the heirs and next of kin of David C. Mowry” whom Mrs. Mowry is representing. The

Court concludes that the son and daughter are in privity with the plaintiffs from the first

case as their interests were adequately represented. The Court finds support for this

conclusion in Ohio law.

Under Ohio law, beneficiaries on a wrongful death claim include the decedent’s

surviving spouse, children, and parents. R.C. 2125.02. The Supreme Court of Ohio has

held that privity exists between the beneficiaries in a wrongful death action and the

decedent. Thompson v. Wing, 637 N.E.2d 917, 923 (Ohio 1994). The rationale is that

there exists “a close alignment of interests between the beneficiaries and the decedent,”

and it is assumed that the beneficiaries’ interests will be protected by the decedent’s prior

action on his own behalf as he “has every incentive to vigorously pursue a claim for

personal injury or medical malpractice.” Id.

Mr. and Mrs. Mowry successfully pursued their claims of negligence and loss of

consortium in the first case. Mowry, 2023 WL 3069359 at *7. It follows that Mr.

Mowry’s beneficiaries’ interests were sufficiently represented to bring the beneficiaries

within the scope of privity, thus satisfying the second element of claim preclusion with

respect to them as well.

b. An Issue That Was or Should Have Been Litigated in Prior Suit

“A final judgment on the merits of an action precludes the parties or their privies

from relitigating issues that were or could have been raised in that action.” Moitie, 452

U.S. at 398. “Issues determined by a judgment for or against a person in an action based

on an act which later causes his death are conclusive in a subsequent action for causing

his death.” Restatement (Second) of Judgments § 46 (1982). The Court recognizes that

“[t]he problem [of deciding whether an issue is precluded] involves a balancing of

important interests: on the one hand, a desire not to deprive a litigant of an adequate day

in court; on the other hand, a desire to prevent repetitious litigation of what is essentially

the same dispute.” Id. at § 29.

In the first Mowry case, this Court resolved the issue of whether the USPS

driver’s negligence proximately caused injuries to Mr. Mowry’s left leg. Mowry, 2023

WL 3069359 at *5. The Court also held that “Mr. Mowry’s kidney deterioration and

ultimate [renal] failure, which began less than two years after the accident and resulting

procedures, infection, and use of the antibiotics, was … proximately caused by the

accident.” Id. In the Complaint, Plaintiff has alleged that Decedent’s death resulted from

“continuous infections and sustained prolonged high blood pressure, uncontrolled

diabetes and kidney failure” in connection with the USPS driver’s negligence. Doc. 1,

PageID #4. Therefore, the issue of whether the USPS driver’s negligence directly and

proximately caused the complications that allegedly resulted in Decedent’s death was

actually litigated and is precluded from re-litigation. Compare In re New York Asbestos

Litigation, 738 F. Supp. 66, 68 (E.D.N.Y. 1990) (the issue of whether decedent’s death

was caused by exposure to asbestos products was decided in prior suit, so it was

precluded in the present suit); Dover v. U.S., 367 Fed.Appx. 651, 653-54 (6th Cir. 2010)

(petitioner had opportunity to raise issue about whether his criminal restitution was

discharged during his bankruptcy proceeding but failed do so, so it was barred); with

Thies v. Life Ins. Co. of N. Am., 924 F. Supp. 2d 817, 820 (W.D. Ky. 2013) (the third

element of claim preclusion was not met because issues of prejudgment interest and

disgorgement of profits were not actually litigated in the first action and could not have

been); Vincent v. Warren County, Ky., 629 Fed.Appx. 735, 740 (2015) (because

defendant was initially granted qualified immunity, the issue of defendant’s personal

negligence was not raised, actually litigated and decided, and necessary to the court’s

judgment in the prior case, so preclusion did not apply).

Despite the different legal theories underlying the two cases—personal injury and

loss of consortium in the first and wrongful death in the second—Plaintiff is effectively

attempting to recover again for the same injury for which Mr. and Mrs. Mowry were

compensated in the first case, which res judicata prohibits. See Cemer v. Marathon Oil

Co., 583 F.2d 830, 832 (6th Cir. 1978) (“Where two successive suits seek recovery for

the same injury, a judgment on the merits operates a bar to the later suit, even though a

different legal theory of recovery is advanced in the second suit.”). The Court

sympathizes with Mrs. Mowry and the Mowry children for their loss, but the cause of

that injury and recovery for that injury were decided in the prior suit, and res judicata

precludes their relitigation.

IV. Conclusion

Even after construing all factual allegations in the Complaint in the light most

favorable, Plaintiff’s claims are barred as a result of res judicata. Therefore, Defendant’s

Motion to Dismiss is GRANTED.

IT IS SO ORDERED.

January 14, 2026 /s/ Judge John R. Adams_______

JUDGE JOHN R. ADAMS

UNITED STATES DISTRICT COURT