recognizing the significance of representation by same attorney to application of res judicata principles in cases arising out of the City's refusal to certify initiative petitions where parties were similar but not identical and constitutional issues that could have been raised, but weren't, in state court were asserted in federal court action
How later courts described this case
- recognizing the significance of representation by same attorney to application of res judicata principles in cases arising out of the City's refusal to certify initiative petitions where parties were similar but not identical and constitutional issues that could have been raised, but weren't, in state court were asserted in federal court action
- holding that an “identity of interest is virtually essential for a finding of privity,” although “such identity by itself may not be sufficient to establish privity”
- finding that res judicata barred subsequent action based on constitutional theory when earlier action did not raise that theory but was based on same transaction
- holding “we give preclusive effect to a state court judgment whenever the courts of that state would do so”
Written by the judges who cited it.
The opinion
KEARSE, Circuit Judge,
concurring:
I concur in the judgment on the ground that the claims asserted by plaintiffs Joseph Ferris and Mildred Morrison are barred by res judicata, but I reach that result not because one of the plaintiffs in the prior suit, Charles Juntikka, is now their attorney and may be controlling the present action (or because Ferris and Morrison may have exercised control over Juntikka in the prior action) but simply because the rights sought to be enforced in this action and the prior action are joint rights as to which I believe New York law would hold both sets of plaintiffs to be in privity.
In general, where one party brings an action to enforce jointly held rights without joining as plaintiffs those persons who hold the rights with him, res judicata bars a subsequent action on the same claim by those joint right-holders who were not parties to the original action. For example, res judicata bars a second suit by a co-obligee of a contractual obligation (other than one arising out of a negotiable instrument) owed to two or more joint obligees, where one of the coobligees has already maintained an action on the obligation, see Restatement (Second) of Judgments § 53 (1982) (“Restatement”); “the obligee who has brought the [prior] action in effect acts for all obligees in prosecuting the action,” id. comment a (emphasis added). Similarly, a subsequent action brought by an individual partner on a partnership claim is barred where another partner has brought a prior action on the same claim, see id. § 60(2); “[t]he partner controlling the [prior] action acts on behalf of the partnership,” id. comment e. See, e.g., Murry v. Eighth Ave. R. Co., 120 Misc. 784, 787 , 199 N.Y.S. 716 , 719 (App. Term 1st Dep’t 1923).
*131 In Parkoff v. General Telephone & Electronics Corp., 53 N.Y.2d 412, 420 , 442 N.Y.S.2d 432, 436 , 425 N.E.2d 820 (1981), the New York Court of Appeals reached an analogous result in the area of shareholder derivative suits, and in D’Arata v. New York Central Mutual Fire Insurance Co., 76 N.Y.2d 659, 664 , 563 N.Y.S.2d 24, 27 , 564 N.E.2d 634 (1990), the Court formulated its general rule broadly, stating that privity is established if the plaintiff in the current litigation
ha[s] a relationship with a party to the prior litigation such that his own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of the rights of the party to the prior litigation.
Id. at 664 , 563 N.Y.S.2d at 27 , 564 N.E.2d 634 (emphasis added) (citing, inter alia, Restatement Introductory Note Ch. 4).
The present action, like the prior state-court action, principally seeks (a) an order requiring official recognition of two initiative petitions presented to the Board of Elections and (b) an injunction requiring the City Clerk to place the initiatives on the ballot. In my view, the rights asserted by the signers of the petitions are joint rights, for under § 40 of the New York City Charter, such an initiative petition is ineffective unless signed by at least 50,000 voters. Thus the rights of Ferris and Morrison to have the petitions upheld are rights they hold jointly with the other signers of the petitions; the other signers included the plaintiffs in the prior lawsuit. None of the individual signers of the petitions had any individual right to have the initiatives placed on the ballot; the right of each signer depended on the requisite number of other persons having signed as well. Thus, the rights of Ferris and Morrison are “conditioned ... on” the rights of their fellow petition-signers, including Juntikka and his co-plaintiffs who brought the prior state-court suit. The plaintiffs in the prior action acted, in effect, for all of the petition signers. No class certification was required, for, by reason of the joint nature of the rights asserted, if those plaintiffs had prevailed, all signers would have prevailed.
In sum, the present action, like the prior action, was an action to enforce the petition-signers’ collectively held rights. I do not believe the New York courts would allow successive actions to enforce those jointly-held rights. Accordingly, I concur in the judgment affirming the dismissal of the action.