Nagle v. Lee

• Decision Date: 08 January 1987
• Docket Number: No. 85-3604,85-3604
• Citation: 807 F.2d 435
• Parties: Charles NAGLE, Plaintiff-Appellant, v. Harry LEE, Sheriff of Jefferson Parish State of Louisiana, Lt. Clifford Montecino, Detective Patricia Laura, Deputy John Doe, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 435

807 F.2d 435

6 Fed.R.Serv.3d 1154

Charles NAGLE, Plaintiff-Appellant, v. Harry LEE, Sheriff of Jefferson Parish State of Louisiana Lt. Clifford Montecino, Detective Patricia Laura Deputy John Doe, et al., Defendants-Appellees.

No. 85-3604

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Jan. 8, 1987.

Craig J. Hattier, New Orleans, La., for plaintiff-appellant.

Fred Schroeder, Lee, Martiny & Caracci, Metairie, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, GARWOOD and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

Charles Nagle filed a civil rights suit alleging that he was physically and verbally abused by officers of the Jefferson Parish, Louisiana, Sheriff's Office after his arrest at a Mardi Gras celebration. His suit was subsequently dismissed by the district court on the ground of failure to prosecute. On the same day Nagle instituted a second suit in which he again alleged that his civil rights had been violated by officers of the Jefferson Parish Sheriff's Office following his arrest. Nagle's second suit was also dismissed by the district court, this time on the ground that the dismissal of Nagle's first suit for failure to prosecute constituted a dismissal on the merits under Fed.R.Civ.P. 41(b) and, therefore, had the res judicata effect of barring Nagle's second suit. For the reasons stated below, we reverse and remand in part and affirm in part.

I.

On February 14, 1984, Nagle filed a civil rights suit based upon 42 U.S.C. Sec. 1983 against Jefferson Parish Sheriff Harry Lee, Deputy Sheriffs "John Smith" and "John Doe," and "ABC Insurance Co.," their alleged insurer. Nagle alleged that on February 15, 1983, "Doe" arrested him and then beat him; later "Smith" allegedly beat and cursed him. Nagle further alleged that Sheriff Lee had been negligent in that he knew or should have known that "Doe" and "Smith" were prone to acts of violence, and that Lee also was liable because of other unspecified acts of negligence. Nagle sought money damages against all defendants "jointly, severally and in solido."

The district court dismissed this suit by a minute entry order of January 17, 1985, for failure to prosecute. The order did not specify, however, whether the dismissal was with or without prejudice. Nagle did not file a motion for reconsideration of the dismissal, nor did he perfect an appeal.

On the same day that the district court dismissed Nagle's first suit, he filed the complaint in the instant suit. The complaint is substantially the same as the complaint in the first suit except that it substituted as defendants Deputy Patricia Laura (Laura) for "Doe" and Lt. Clifford Montecino (Montecino) for "Smith" and it also added as defendants a new "John Doe," the State of Louisiana, and Jefferson Parish. The complaint also alleged that Sheriff Lee was liable only under the doctrine of respondeat superior. Nagle later amended his complaint to allege additional claims based on the incident, to add other deputy sheriffs as "John Doe" defendants, and to expand his liability theories.

Defendants filed their joint answer denying liability and asserting the special defense of prescription (statute of limitations). The district court subsequently granted Jefferson Parish's unopposed motions to dismiss; the court also dismissed the State of Louisiana on Nagle's motion.

Sheriff Lee and Officers Laura and Montecino then moved to dismiss the suit on grounds of res judicata. In their memorandum in support of the motion they also urged that as to Officers Laura and Montecino, Nagle's suit had prescribed under applicable Louisiana law. They attached copies of the minute entry dismissing Nagle's previous section 1983 suit against Sheriff Lee and the "John Doe" defendants and the complaint itself. At the hearing on the motion Nagle's lawyer argued that the res judicata affirmative defense could not be maintained because it had not been raised in the defendants' answer as required by Fed.R.Civ.P. 8(c). Defense counsel responded that res judicata had been raised by the answer's allegation that the action had prescribed and also offered to amend the answer to allege res judicata as a defense. ¹

The district court ruled that under rule 41(b) the dismissal of Nagle's first suit was an adjudication on the merits because the order of dismissal did not specify otherwise and thus was a bar to Nagle's present action. Accordingly, the court granted the defendants' motion and dismissed Nagle's second suit. Nagle then perfected this appeal.

II.

We first consider, as we must, our jurisdiction over this appeal. See Huff v. International Longshoremen's Association, Local No. 24, 799 F.2d 1087, 1088 (5th Cir.1986) (court's threshold issue on appeal is always jurisdiction). ABC Insurance Company (ABC) was again named as party defendant in Nagle's second suit. However, the record does not reflect that service of process was issued and obtained on or that any appearance was made for this defendant, nor does the record reflect that the district court ever disposed of Nagle's suit as to ABC. Since we are a court of limited jurisdiction, see Save the Bay, Inc. v. United States Army, 639 F.2d 1100, 1102 (5th Cir.1981), the failure of the district court to dispose of ABC imposes on us the duty to determine whether we have jurisdiction over this appeal, even though the parties have not raised the issue. Cuevas v. Reading & Bates Corp., 770 F.2d 1371, 1375 (5th Cir.1985); Koke v. Phillips Petroleum Co., 730 F.2d 211, 214 (5th Cir.1984). Courts of appeal, have "jurisdiction of appeals from all final decisions of the district courts of the United States." 28 U.S.C. Sec. 1291. An order is final only when it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Ordinarily where an action involves multiple parties, a disposition of the action as to only some of the parties does not result in a final appealable order absent a certification by the district court under Fed.R.Civ.P. 54(b). Thompson v. Betts, 754 F.2d 1243, 1245 (5th Cir.1985); Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1374 (5th Cir.1980). No certification exists here.

However, since no service was obtained on ABC, nor did it make an appearance in the district court, ABC never became a party to Nagle's second suit. Thus it was not necessary for the district court to have disposed of Nagle's claims against ABC to make the judgment dismissing the second suit against the other defendants final and appealable. Bristol v. Fibreboard Corporation, 789 F.2d 846, 847 (10th Cir.1986); Leonhard v. United States, 633 F.2d 599, 608-09 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981); De Tore v. Jersey City Police Employees Union, 615 F.2d 980, 982 (3d Cir.1980).

Based upon the above principles, we conclude that we have jurisdiction to review Nagle's appeal of the order dismissing his second section 1983 action.

III.

Turning to the merits of Nagle's appeal, we first address whether the district court should have considered the defendants' res judicata defense in dismissing Nagle's action. Nagle contends that the district court erred in dismissing his suit on res judicata grounds because the defendants failed to assert it as an affirmative defense in their answer as required by Fed.R.Civ.P. 8(c). In support of his position he relies on Carbonell v. Louisiana Department of Health & Human Resources, 772 F.2d 185 (5th Cir.1985). Such reliance is misplaced.

In Carbonell we did state that "under rule 8(c), Federal Rules of Civil Procedure, the defense of res judicata must be affirmatively pled. Generally this rule is strictly read and applied...." Id. at 189. This language does support Nagle's current contention. However, the court in Carbonell went on to observe that this circuit has recognized two exceptions to this rule which allow the trial or appellate court to raise the issue sua sponte. Id. at 189. In Boone v. Kurtz, 617 F.2d 435 (5th Cir.1980), we recognized one of the exceptions ² when we held that the district court could sua sponte dismiss an action on res judicata grounds in the interest of judicial economy where the previous action had been brought before a court of the same district, even though the record contained neither the complaint nor the order of dismissal in the earlier action. Id. at 436. As in Boone, both cases filed by Nagle were before the Eastern District of Louisiana. See also United Home Rentals v. Texas Real Estate Commission, 716 F.2d 324, 330 (5th Cir.1983). Furthermore, the record contains copies of the complaint in Nagle's first suit and the minute-entry order of dismissal of that suit. ³ Thus the district court's sua sponte consideration of the defendants' res judicata defense falls within the Boone exception.

Nagle argues that Boone "might be straying from the Rules of Civil Procedure too far." Regardless of Nagle's displeasure with Boone, we are bound by its dictates. Until overruled by the court en banc or the Supreme Court, Boone is the law of the circuit, and we are obligated to follow it. E.g., Washington v. Watkins, 655 F.2d 1346, 1354 n. 10 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982).

In addition to the applicability of Boone, we also note that the defendants raised their res judicata defense in their motion to dismiss Nagle's second suit. Such a motion has been held sufficient to raise the plea of res judicata. American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir.1981); see also Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir.1984) (although res judicata had been asserted by motion to dismiss rather than answer, a duty exists to affirm district court's judgment on...