finding no distinction between a plaintiff electing to advance additional claims after final judgment and a plaintiff advancing additional claims in a motion to amend its complaint, implicitly recognizing that the actual decision denying leave would be irrelevant for claim preclusion purposes
How later courts described this case
- finding no distinction between a plaintiff electing to advance additional claims after final judgment and a plaintiff advancing additional claims in a motion to amend its complaint, implicitly recognizing that the actual decision denying leave would be irrelevant for claim preclusion purposes
- holding that “res judicata, by contrast to narrower doctrines of issue preclusion, bars all claims that were or could have been advanced in support of the cause of action on the occasion of its former adjudication, . . . not merely those that were adjudicated”
- rejecting a per se rule that a claim is not barred if plaintiff is unable to raise it' in an earlier action because the judge denies leave to amend, and holding that the claim will be barred if failure to amend was caused by plaintiffs “unexplained dilatoriness.”
- holding that denial of leave to amend to add claims does not prevent application of claim preclusion in a subsequent action where the plaintiff attempts to bring the same claims
Written by the judges who cited it.
The opinion
WISDOM, Circuit Judge,
with whom ALVIN B. RUBIN, POLITZ, TATE, JOHNSON and JERRE S. WILLIAMS, Circuit Judges, join, dissenting:
I respectfully dissent for the reasons discussed at length in the panel opinion. With deference to the majority of the Court in banc, I add a few remarks. I do so because I feel that at the expense of justice the Court in banc is torturing the doctrine of res judicata.
No one can quarrel with the majority’s statement that “res judicata .. . bars all claims that were or could have been advanced in support of the cause of action on the occasion of its former adjudication”. (Emphasis in the original.) That principle has no application to a plaintiff who attempted to advance her constitutional § 1983 claim by amendment to her Title VII.action, but was not allowed to do so by the district court on the motion of the defendant. The district court dismissed Nil-sen I “without prejudice”. That court later denied the plaintiff’s motion to amend Nil-sen II/III apparently, or at least probably, because the defendant made the following argument:
The [ 42 U.S.C. § 1983 ] claims alleged by Plaintiff in her motion to amend are apparently not barred by the applicable Statute of Limitations. Therefore, there would be no prejudice to the Plaintiff in denying the motion to amend which would only mean that she would have to refile her allegations in an original complaint. (Emphasis added.)
Defendant’s Memorandum in Opposition to Plaintiff’s Motion to Amend.
*565 Nilsen did exactly what the defendant urged her to do and what the district judge must have thought that she had a right to do when he refused to allow her to amend the Title VII suit. She “refile[d] her allegations in an original complaint”. To hold that she forfeited her constitutional right of action (not barred by the statute of limitations) because the district court did not wish to try that claim with the Title VII claim (which was time barred) subordinates constitutional rights to a rigid, formalistic, medieval-like concept of res judicata.
I do not question our decision in Nilsen II/III upholding the trial judge’s exercise of discretion in denying amendment of the complaint. But that decision should have no effect on the plaintiff’s absolute right to file a new complaint, timely brought, grounded on the fourteenth amendment. The plaintiff did what the rule against splitting causes of action encourages her to do: she attempted to consolidate all her claims in one action. It is an extension of the rule against claim-splitting and contrary to the rationale of the rule to apply it to a plaintiff who was not permitted to consolidate her constitutional claim with the Title VII claim in the earlier proceeding.
The general and well understood policies underlying the doctrine of res judicata are universally accepted as sound. But there is no basis for application of the doctrine unless the plaintiff has “a full and fair opportunity to litigate” his claim. If, as appears to me, the district court and this court were considering whether proceedings in Nilsen II/III were the proper proceedings in which to raise the § 1983 claim, the courts’ determination of that limited issue did not affect Nilsen’s right to a full and fair opportunity to litigate her § 1983 claim. Only a liberal view of a plaintiff’s ability to amend renders it appropriate to give broad preclusive effect to the inadequacies of a plaintiff’s original complaint. The position of the court in banc is manifestly unfair, but the panel decision did not attempt to fashion an exception to res judicata based on unfairness. It refused to extend the doctrine to a situation where it was inapplicable.
The discretion given a court to deny an amendment is a valuable working tool. It is no more. Here reliance on that denial to bar adjudication of a constitutional claim conflicts with the first rule of the Federal Rules of Civil Procedure: “[The rules] shall be construed to secure the just, speedy, and inexpensive determination of every action”. The decision of the Court in banc also conflicts with common sense. Putting to one side the quibbles associated with what constitutes a decision on the merits, it is evident that Nilsen never had a day in court on the substance of her constitutional claim and that this claim failed to receive a just determination by this Court. I cannot stand aside and bow to injustice in the name of formalism.