Opposition Brief — Sanders v. Venture Stores, Inc.

ow en

a D

Y) OCT 18 1996

No. 96-432 ~~

CLERK

In The

Supreme Court of the United States

October Term, 1996

.

DENISE SANDERS, YOLANDA WHATLEY,

and WANDA WALKER,

Petitioners,

VENTURE STORES, INC.,

Respondent.

SJ

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

.

RESPONDENT'S BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

¢

Joun S. SCHAUER

Counsel of Record

ANTHONY B. BrERGO

SEYFARTH, SHAW, FAIRWEATHER

& GERALDSON

55 East Monroe Street

Suite 4200

Chicago, Illinois 60603

(312) 346-8000

Counsel for Respondent,

Venture Stores, Inc.

October 18, 1996

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

This case presents the question of whether the doc-

trine of res judicata bars an action asserting breach of

employment contract claims arising from the termination

of an employee’s employment where there is a previous

judgment on the merits in a prior action asserting dis-

crimination claims arising from the termination of the

employee’s employment.

ii

PARTIES TO THE PROCEEDING

The petitioners are Denise Sanders, Yolanda Whatley,

and Wanda Walker, all former employees of the respon-

dent, Venture Stores, Inc.

The respondent is Venture Stores, Inc., a Missouri

corporation with its principal place of business in Mis-

souri. The respondent is in the business of retail sales of

consumer goods.

ili

TABLE OF CONTENTS

Page

SEMPUMRIOEN WUMMOUNIUEMION, occ \ cb cde sdcccuwecencccces i

PARTIES TO THE PROCEEDING .................. ii

WUE TOE MPR U IR 555k 6 85h. bh cess ved cnenchas. iii

SE SP PE UO oss kik hes bees bedeccncce iv

waApmmms OF THE CASE... 20... cscs ecccccccss 2

REASONS FOR DENYING THE WRIT............. 4

I. THE DECISION BELOW FOLLOWED THE

CONTROLLING PRECEDENT OF THE

SEE SEE Su eco c hit fekcu cad cos 4

Il. THERE IS NO CONFLICT AMONG THE

COURTS OF APPEAL AS TO THE APPLICA-

TION OF THE RES JUDICATA DOCTRINE... 6

(A) An Action Brought To Contest An

Employee’s Discharge Is Barred By A

Previous Action Which Contested The

MEL G5 bes Vanes Vu aden shee ees eke 5 « 6

(B) No Exception To The Res Judicata Doc-

trine Is Created By An Attempted, But

Failed Effort To Bring Claims In An Ear-

ES orn GU Gn Wa Sew Eee s bu Coes ah cus 7

A er ee ey ee 12

iv

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411 $3) ee 4

American National Bank & Trust Co. v. City of

Chicago, 826 F.2d 1547 (7th Cir.), cert. denied, 484

Mice Fee, BOO Oy ROO CEFNE) ce iio sss cease oaks esa 8

Brown v. Felsen, 442 U.S. 127, 99 S. Ct. 2205 (1979) ..... 5

Brzostowski v. Laidlaw Waste Systems, 49 F.3d 337

CU Lae. BOR ind cies ec abd Hidde eedes vhs 3, 4, 7

Cemer v. Marathon, 583 F.2d 830 (6th Cir. 1978)....... 7

Clark v. Haas Group, Inc., 953 F.2d 1235 (10th Cir.),

cert. denied, 506 U.S. 832, 113 S. Ct. 93 (1992)...... 7

Federated Department Stores, Inc. v. Moitie, 452 U.S.

sea, 101 G. Ce. BGR (ISG cava vinci ALG 4,5

Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227 (1962)..... 3

Hogue v. Royse City, Texas, 939 F.2d 1249 (5th Cir.

SUPEP 44-0 nk au deo sR CDi eaw se eeed bee bem aded ey ces 7

In re Air Crash at Dallas/Ft. Worth Airport, 861 F.2d

OR Get CAE. RRP caver ecky sna ceeds Biecanakees 6

In re International Nutronics, Inc., 28 F.3d 965 (9th

GG SOME ho 0h a ESRD RHR Ahad chee UeEEURKN RaeGed hoes 6

In re Varat Enterprises, 81 F.3d 1310 (4th Cir. 1996)..... 6

].Z.G. Resources, Inc. v. Shelby Insur. Co., 84 F.3d

SRA Ce So ROIS 00 65k ws Cibads cibaetnee 6

Kale v. Combined Insurance Co. of America, 924 F.2d

1161 (1st Cir.), cert. denied, 502 U.S. 816, 112 S.

Le OP CROE ES 6 ve hevcenes tbr aceies oath eee passim

v

TABLE OF AUTHORITIES - Continued

Page

Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102

iy Nite: BM REEDS & Gnd vine evs Shea eke Ra eukeaa a 7

Lubrizol Corp. v. Exxon Corp., 929 F.2d 960 (3d Cir.

WIGS is oi ccc svi wkans Sana eee 6

Mills v. Des Arc Convalescent Home, 872 F.2d 823

Pe A BO hing tas bs ek canes cxeaaea ean can cesxs 7

Robinson v. Volkswagenwerk AG, 56 F.3d 1268 (10th

RR ROU cet wack) 4d EEN UE ek ORO REE Ke 6

Sanders v. Venture Stores, Inc., 899 F. Supp. 387

POs Bs ROOED haha Vikges SaeT Ue CA PEOAR SE SER CAeReed 3

Sanders v. Venture Stores, Inc. (Sanders I), 56 F.3d

FTE CPR RIE, TOMO ivlecccpscets ceaehuaceeues 2, & 8, 11

Sanders v. Venture Stores, Inc. (Sanders II), Docket

No. 95-3743 (7th Cir., April 8, 1996) .......... passim

Shaver v. F. W. Woolworth Co., 840 F.2d 1361 (7th

Cir.), cert. denied, 488 U.S. 856 (1988).......... passim

Wade v. Hopper, 993 F.2d 1246 (7th Cir.), cert.

denied, 510 U.S. 868, 114 S. Ct. 193 (1993).......... 5

Woods v. Dunlop Tire Corp., 972 F.2d 36 (2d Cir.

1992), cert. denied, 506 U.S. 1053, 113 S. Ct. 977

CRP © SACL i544 0 Ke RRA ORD ack eR NEA Cae 6, 7

FEDERAL STATUTES

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

D Me C0 OME isccinava de cues saeea chee ewes) 1

Age Discrimination in Employment Act, 29 U.S.C.

Oe Gk 0 OO nnn cvckntviwises taser ecemea ee 10

rea. RK. Cin BR SG os icici eens von Wee's 3

PEs Wes GR Fe SO chew ase eeulciseuroneeanevascraianecs 2

RESPONDENT’S BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

Respondent, VENTURE STORES, INC. (hereinafter

referred to as “Venture”), by and through its attorneys,

Seyfarth, Shaw, Fairweather & Geraldson, hereby files its

brief in opposition to the petition for writ of certiorari

filed by Petitioners Denise Sanders, Yolanda Whatley, and

Wanda Walker (hereinafter referred to collectively as the

“Plaintiffs”).

By way of summary, in 1994, Plaintiffs brought a

federal court action alleging that the termination of their

employment by Venture violated Title VII of the Civil

Rights Act of 1964, as amended. 42 U.S.C. § 2000e et seq.

Judgment was granted to Venture in that suit based on

the limitations period provided in 42 U.S.C.

§ 2000e-5(f)(1). Subsequently, Plaintiffs brought a state

law action for breach of contract challenging the termina-

tion of their employment. This subsequent action was

dismissed on res judicata grounds.

Res judicata bars a breach of contract action brought

by former employees challenging the termination of their

employment where there is a judgment on the merits

between the same parties in a previous Title VII discrimi-

nation action which also challenged the termination of

their employment. The Seventh Circuit’s decision appro-

priately affirmed the dismissal of the second action

brought by Plaintiffs against Venture. The decision below

follows the precedent of the Supreme Court, presents no

conflict with a decision of another United States court of

appeals, and does not depart from the accepted and usual

course of judicial proceedings. Accordingly, the Court

should deny the petition for writ of certiorari.

+

STATEMENT OF THE CASE

On February 24, 1994, Plaintiffs brought suit against

Venture alleging that Venture’s termination of their

employment violated Title VII. Venture’s answer to the

complaint presented as an affirmative defense Plaintiff’s

failure to file suit within 90 days after receipt of right to

sue letters from the Equal Employment Opportunity

Commission (“EEOC”) as required by 42 U.S.C.

§ 2000e-5(f)(1). On July 7, 1994, Venture filed a motion for

summary judgment based on Plaintiffs’ failure to file suit

within this limitations period.

On August 31, 1994, “after discovery was completed,

after Venture had filed its motion for summary judgment,

after the district court indicated its inclination to grant

the summary judgment and after it referred the matter to

a magistrate judge,” Plaintiffs filed a motion to amend

their complaint to add several new counts, including

state law breach of contract claims. See Sanders v. Venture

Stores, Inc. (“Sanders I”), 56 F.3d 771, 775 (7th Cir. 1995).

On October 24, 1994, the District Court granted summary

judgment to Venture under Fed. R. Civ. P. 56, and denied

the Plaintiffs’ motion to amend their complaint. Plaintiffs

subsequently appealed the District Court’s denial of their

motion to amend.

The Seventh Circuit affirmed the District Court in

Sanders I, 56 F.3d 771 (7th Cir. 1995). The Seventh Circuit

found that amendment of the complaint at the time it was

filed would have compelled Venture “to incur additional

discovery costs, and there would be undue delay and

prejudice to the parties and to the court.” Id. at 775.

Accordingly, consistent with the Supreme Court’s deci-

sion in Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227 (1962),

the Seventh Circuit found that denial of the motion to

amend was a proper exercise of the District Court’s dis-

cretion and affirmed the judgment.

On June 7, 1995, two weeks after the Seventh Circuit

issued its decision in Sanders I, Plaintiffs filed a new

action in Illinois state court asserting breach of contract

claims based on the termination of their employment.

These were the same claims for which amendment had

been ruled untimely in Sanders I. Venture removed the

new action to federal court on the basis of diversity

jurisdiction, and filed a motion to dismiss under Fed. R.

Civ. P. 12(b)(6) on the grounds of res judicata. Relying on

the Seventh Circuit’s decisions in Shaver v. F. W. Wool-

worth Co., 840 F.2d 1361 (7th Cir.), cert. denied, 488 U.S. 856

(1988), and Brzostowski v. Laidlaw Waste Systems, 49 F.3d

337 (7th Cir. 1995), the District Court agreed and dis-

missed the second complaint, concluding that Plaintiffs

should “not now be afforded a second bite at the apple.”

Sanders v. Venture Stores, Inc., 899 F. Supp. 387, 389 (N.D.

Ill. 1995).

Plaintiffs again appealed to the Seventh Circuit. This

time they asserted that the doctrine of res judicata should

not apply to bar their subsequent action, because in their

earlier action they were denied leave to amend their

complaint to add the contract claims. In rejecting Plain-

tiffs’ arguments, the Seventh Circuit held that the new

suit plainly met the three elements of res judicata, or

claim preclusion: (1) a judgment on the merits in the

earlier action, (2) an identity of parties in the two suits,

and (3) an identity of the claims in the two suits. Sanders

v. Venture Stores, Inc. (“Sanders II”), Docket No. 95-3743,

Slip Op. at 2 (7th Cir., April 8, 1996). Further, the Seventh

Circuit rejected Plaintiffs’ effort to carve an exception to

the res judicata doctrine as contrary to settled precedent

in the circuit, specifically Shaver v. F. W. Woolworth Co.,

840 F.2d 1361 (7th Cir.), cert. denied, 488 U.S. 856 (1988),

and Brzostowski v. Laidlaw Waste Systems, 49 F.3d 337 (7th

Cir. 1995). In so doing, the Seventh Circuit observed that

Plaintiffs’ inability to litigate their contract claims was

attributable only to their own “fail[ure] to consider what

claims they could have brought . . . when the case was

originally filed.” Sanders II, Slip Op. at 3 (italics in origi-

nal). Accordingly, the Seventh Circuit affirmed the judg-

ment of the District Court.

Plaintiffs now petition for writ of certiorari of the

decision in Sanders II.

°

REASONS FOR DENYING THE WRIT

I. THE DECISION BELOW FOLLOWED THE CON-

TROLLING PRECEDENT OF THE SUPREME

COURT.

The doctrine of res judicata as developed by the

United States Supreme Court provides that “a final judg-

ment 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.” Allen v. McCurry, 449

U.S. 90, 94, 101 S. Ct. 411, 414 (1980); see also Federated

Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.

Ct. 2424, 2428 (1981). An action will be barred by res

judicata where the following three elements are present:

(1) a judgment on the merits in an earlier action; (2) an

identity of parties or privies in the two suits; and (3) an

identity of the cause of action between both suits. Id. at

399, 101 S. Ct. at 2428; see also Wade v. Hopper, 993 F.2d

1246, 1252 (7th Cir.), cert. denied, 510 U.S. 868, 114 S. Ct.

193 (1993); Shaver v. F. W. Woolworth Co., 840 F.2d 1361,

1364 (7th Cir.), cert. denied, 488 U.S. 856, 109 S. Ct. 145

(1988).

In the present case, the Seventh Circuit applied each

of these elements to find that Plaintiffs’ new complaint

was barred by the res judicata doctrine. Sanders II, Slip

Op. at 2. Plaintiffs presented no argument below that

these elements were not present, and do not now argue

that the Seventh Circuit erred in so finding.

The Supreme Court has repeatedly reaffirmed the

importance of the doctrine of res judicata in the American

system of justice. As stated by the Court in Allen v.

McCurry, “res judicata . . . relieve[s] parties of the cost

and vexation of multiple lawsuits, conserve[s] judicial

resources, and, by preventing inconsistent decisions,

encourage[s] reliance on adjudication.” 449 U.S. at 94, 101

S. Ct. at 415 (1980); see also Brown v. Felsen, 442 U.S. 127,

131, 99 S. Ct. 2205, 2209 (1979). Accordingly, the Court

has strongly rejected efforts by the lower federal courts to

carve out policy-based exceptions to the doctrine of res

judicata - holding instead that public policy is best

served by application of the rule where the elements are

present. See, e.g., Moitie, 452 U.S. at 399-401, 101 S. Ct. at

2438-40 (1981); see also Shaver, 840 F.2d at 1364 (7th Cir.

1988) (“Once a litigant has satisfied the prongs of the test,

a later suit should be barred since there is little, if any,

room left for making further policy arguments.”).

In the present case, Plaintiffs seek an exception to the

application of the res judicata doctrine in cases where a

party attempts but fails to advance a claim in the earlier

litigation. The Court should decline to entertain the cre-

ation of such an exception, and deny the petition for writ

of certiorari.

Il. THERE IS NO CONFLICT AMONG THE COURTS

OF APPEAL AS TO THE APPLICATION OF THE

RES JUDICATA DOCTRINE.

(A) An Action Brought To Contest An Employee's

Discharge Is Barred By A Previous Action

Which Contested The Discharge.

For purposes of res judicata, a claim in a second suit

is considered the “same claim” as one brought in an

earlier suit if it arises from the “same transaction” or “a

single core of operative facts.” See Kale v. Combined Insur-

ance Co. of America, 924 F.2d 1161, 1167 (1st Cir.), cert.

denied, 502 U.S. 816, 112 S. Ct. 69 (1991); Woods v. Dunlop

Tire Corp., 972 F.2d 36, 38-39 (2d Cir. 1992), cert. denied,

506 U.S. 1053, 113 S. Ct. 977 (1993); Lubrizol Corp. v. Exxon

Corp., 929 F.2d 960, 963 (3d Cir. 1991); In re Varat Enter-

prises, 81 F.3d 1310, 1316 (4th Cir. 1996); In re Air Crash at

Dallas/Ft. Worth Airport, 861 F.2d 814, 816 (5th Cir. 1988);

].Z.G. Resources, Inc. v. Shelby Insur. Co., 84 F.3d 211, 215

(6th Cir. 1996); Shaver, 840 F.2d 1361, 1365 (7th Cir. 1988);

In re International Nutronics, Inc., 28 F.3d 965, 970-71 (9th

Cir. 1994); Robinson v. Volkswagenwerk AG, 56 F.3d 1268,

1275 (10th Cir. 1995); see also Kremer v. Chemical Constr.

Corp., 456 U.S. 461, 481, 102 S. Ct. 1883, 1896 n.22 (1982)

(noting the then-recent trend of applying res judicata “to

bar claims arising from the same transaction even if

brought under different statutes”).

There is no conflict among the federal courts of

appeal that the various claims an employee might raise

relative to the termination of her employment arise out of

the same transaction or core of operative facts and thus

constitute a single cause of action for res judicata pur-

poses. See, e.g., Kale v. Combined Insur. Co. of America, 924

F.2d 1161 (ist Cir. 1991); Woods v. Dunlop Tire Corp., 972

F.2d 36 (2d Cir. 1992); Hogue v. Royse City, Texas, 939 F.2d

1249 (Sth Cir. 1991); Cemer v. Marathon, 583 F.2d 830 (6th

Cir. 1978); Shaver, 840 F.2d 1361 (7th Cir. 1988);

Brzostowski, 49 F.3d 337 (7th Cir. 1995); Mills v. Des Arc

Convalescent Home, 872 F.2d 823 (8th Cir. 1989); Clark v.

Haas Group, Inc., 953 F.2d 1235 (10th Cir.), cert. denied, 506

U.S. 832, 113 S. Ct. 93 (1992).

(B) No Exception To The Res Judicata Doctrine Is

Created By An Attempted, But Failed Effort To

Bring Claims In An Earlier Action.

“Res judicata bars not only those issues which were

actually raised in a prior suit, but also all issues which

could have been raised in that action.” Brzostowski_ v.

Laidlaw Waste Systems, Inc., 49 F.3d 337, 338 (7th Cir. 1995)

(citing Shaver v. F.W. Woolworth Co., 840 F.2d 1361, 1364

(7th Cir. 1988)). In the decision below, the Seventh Circuit

merely reaffirmed this rule of law, stating that Plaintiffs

could have brought their contract claims in the earlier

action but failed to do so because they “failed to consider

what claims they could have brought . . . when the case

was originally filed.” Sanders II, Slip Op. at 3 (italics in

original). Plaintiffs agree with the Seventh Circuit's state-

ment of the applicable rule of law. Petition for Writ of

Certiorari at 2. Nonetheless, they argue that the rule

should not apply, because they attempted in the first suit

to raise the contract claims advanced in the second suit.

Plaintiffs omit the important fact that, while they

attempted to raise their contract claims by a motion to

amend their first complaint, they failed in this effort.

Plaintiffs ignore the decision of the Seventh Circuit in

Sanders I that their attempt was inexcusably delayed and

would have caused undue prejudice to Venture and the

courts. See Sanders I, 56 F.3d 771, 774 (1995). As stated by

the Seventh Circuit in Sanders II, Plaintiffs could have

avoided the denial of their motion to amend in Sanders I

(and avoided the predicament in which they find them-

selves) had they not “failed to consider what claims they

could have brought based upon the court’s independent

diversity jurisdiction when the case was originally filed.”

Sanders II, Slip Op. at 3. Plaintiffs acted at their peril by

waiting to seek leave to amend their complaint until after

discovery closed, after Venture filed its motion for sum-

mary judgment, and after the District Court expressed its

inclination to grant the summary judgment. The mere

fact, however, that Plaintiffs “bollixed [their] opportunity

by . . . failing to prosecute [their case] properly does not

justify exposing the defendant to another round.” Ameri-

can National Bank & Trust Co. v. City of Chicago, 826 F.2d

1547, 1553 (7th Cir.), cert. denied, 484 U.S. 977, 108 S. Ct.

489 (1987).

In this regard, the Seventh Circuit’s decision in this

case is wholly consistent with prior decisions in Shaver,

840 F.2d 1361 (7th Cir. 1988), and Kale, 924 F.2d 1161 (ist

Cir. 1991). In Shaver, the plaintiff-employee initially

brought suit asserting federal age discrimination and

pendent state law claims. The age discrimination claim

was subsequently dismissed as untimely. Further, the

plaintiff had failed to raise diversity as a jurisdictional

basis for the state law claims, and the federal district

court declined to exercise pendent jurisdiction over the

state law claims. Subsequently, the plaintiff-employee

brought a new breach of contract claim in Wisconsin state

court. The employer removed the action to federal district

court on diversity grounds, and the district court granted

judgment to the employer on the contract claim.

On review, the Seventh Circuit affirmed on res judi-

cata grounds, holding that both the contract and the

discrimination claims arose out of “the same core of

operative facts” (i.e., the employer’s liquidation and the

employee’s layoff), and thus “constitute[d] identical

causes of actions for res judicata purposes.” Shaver, 840

F.2d at 1365. As emphasized by the Seventh Circuit, “res

judicata operates as a bar to the litigation of matters

which could have been raised in a prior proceed-

ing . . . [and] prevents the splitting of a single cause of

action and the use of several theories of recovery as the

basis for separate suits.” Id. at 1365. The Seventh Circuit

further rejected plaintiff's efforts to argue that the res

judicata doctrine should not apply because of policy con-

cerns. Id. at 1365-66. Contrary to plaintiff’s assertions, the

Seventh Circuit (echoing the Supreme Court) emphasized

the important policies that the res judicata doctrine

10

upholds and found that the new action was barred by

“both the strict test of and the policy behind the res

judicata doctrine.” Id. at 1367-68.

Likewise, in almost identical circumstances in Kale,

924 F.2d 1161 (1st Cir.1991), the United States Court of

Appeals for the First Circuit held that a judgment in one

federal suit will act as res judicata as to a later suit

asserting state law claims where the plaintiff tried, but

failed, to assert the state law claims in the first suit. In

Kale, the plaintiff-employee first filed suit in federal court

pleading federal jurisdiction and alleging violations of

the Age Discrimination in Employment Act, 29 U.S.C.

§§ 621 et seq. To this suit, he added several state law

claims asserting only pendent jurisdiction. Subsequently,

plaintiff’s federal age discrimination claim was held to be

time-barred. Accordingly, the district court granted sum-

mary judgment to the defendant-employer on that claim,

and dismissed “without prejudice” the pendent state law

claims. Id. at 1163.

After plaintiff’s unsuccessful appeal of the adverse

judgment on his age discrimination claim, he then filed a

new suit in Massachusetts state court alleging “a tsunami

of state-law claims.” Id. at 1164. The defendant-employer

removed the suit to federal district court on diversity

grounds, and moved to dismiss based on the res judicata

effect of the first litigation. The district court granted the

motion to dismiss.

On review, the First Circuit found that the three

elements of the res judicata doctrine had been met -— a

judgment on the merits, an identity of parties, and an

identity of causes of action. Id. at 1165-66. In the latter

Miao lll

11

regard, the court found that all of the claims in the second

suit arose from “the same transactional hub” as in the

first suit (i.e., “defendant’s unilateral termination of the

plaintiff's employment”), and thus there was an identity

of causes of action for res judicata purposes. Id. at 1166.

Relying on the Seventh Circuit’s decision in Shaver, the

First Circuit accordingly affirmed the district court’s

judgment below, “holding that when a plaintiff pleads a

claim in federal court, he must, to avoid the onus of

claim-splitting, bring all related state claims in the same

lawsuit so long as any suitable basis for subject-matter

jurisdiction exists.” Id. at 1165, 1166-67. Rejecting the

plaintiff’s plea that such application of the res judicata

doctrine resulted in an injustice to him, the First Circuit

aptly opined, “[t]here is no unfairness . . . in declining to

extricate the plaintiff from a self-dug hole.” Id. at 1167.

The fact that Plaintiffs belatedly attempted to amend

their complaint in Sanders I to bring their contract claims

does not aid their cause. Rather, Plaintiffs in this case

stand in shoes much like those of the plaintiffs in Shaver

and Kale.

Here, the District Court granted judgment to Venture

on federal discrimination claims and properly rejected

the plaintiffs’ efforts to bring state law claims as part of

the initial action. In Shaver and Kale, the district courts

granted judgment to the defendant-employers on federal

discrimination claims and properly dismissed the plain-

tiffs’ state law claims. In the present case, Plaintiffs were

unable to assert their contract claims in the first action

because their motion to amend was untimely. In Shaver

and Kale, the plaintiffs were unable to bring their state

law claims in the first action because they failed to timely

12

assert an appropriate jurisdictional basis for the district

court to entertain such claims.

Here, as in Shaver and Kale, Plaintiffs’ failed effort to

bring their state law claims in the earlier proceeding does

not alter the res judicata effect of that proceeding. Here,

as in Shaver and Kale, the later suit is precluded.

+

CONCLUSION

WHEREFORE, based on the foregoing facts, argu-

ments, and authorities, Respondent Venture Stores, Inc.,

respectfully requests that the Court deny the petition for

writ of certiorari.

Respectfully submitted,

Venture Stores, Inc.

JoHN S. SCHAUER

ANTHONY B. ByERGO

SEYFARTH, SHAW, FAIRWEATHER

& GERALDSON

55 East Monroe Street

Suite 4200

Chicago, Illinois 60603

(312) 346-8000