Drickersen v. Drickersen

• Decision Date: 08 January 1976
• Docket Number: No. 2634,2634
• Parties: Hortensia C. DRICKERSEN, Petitioner, v. Charles G. DRICKERSEN, as the natural father, guardian, and next friend of Pandora M. Drickersen, et al., Respondents.
• Court: Alaska Supreme Court

Page 162

546 P.2d 162

Hortensia C. DRICKERSEN, Petitioner, v. Charles G. DRICKERSEN, as the natural father, guardian, and next friend of Pandora M. Drickersen, et al., Respondents.

No. 2634.

Supreme Court of Alaska.

Jan. 8, 1976.

Murphy L. Clark and Peter A. Galbraith, Anchorage, for petitioner.

James A. Parrish, Fairbanks, for respondents.

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and BURKE, JJ.

OPINION

RABINOWITZ, Chief Justice.

This petition raises first impression questions relating to Alaska Rule of Civil Procedure 14(a), concerning third-party practice, and the doctrine of res judicata.

On August 28, 1971, petitioner was involved in an automobile accident which occurred near Mile 268 on the Richardson Highway. Petitioner was the driver of an automobile in which respondent Mr. Drickersen and the Drickersen children were passengers. As petitioner was attempting to pass an Army convoy, the lead convoy vehicle turned left and the two vehicles collided. On May 23, 1972, respondent Charles Drickersen, individually and as guardian on behalf of the minor children, filed the instant case in the Superior Court of the State of Alaska, Fourth Judicial District, claiming that petitioner was negligent and that her negligence was a proximate cause of the accident and resultant injuries to plaintiffs. ¹ Subsequently, on February 8, 1973, respondents filed an action in the United States District Court for the District of Alaska against the United States under the Federal Tort Claims Act, alleging that the negligence of agents of the United States was a proximate cause of the accident and resultant injuries to the plaintiffs.

In this latter case the United States filed a third-party complaint against Mrs. Drickersen seeking recovery for 'all sums that may be adjudged against defendant United States was a proximate cause of plaintiffs' and alleging that Mrs. Drickersen's negligence caused the accident. In this federal litigation, respondent Mr. Drickersen did not attempt to assert any claim against petitioner Mrs. Drickersen.

Respondents' district court claim against the United States was tried to a judge at the same time the third-party claim of the United States was tried to a jury. The jury found that Mrs. Drickersen was negligent but that her negligence was not a proximate cause of the accident. The federal judge found that the United States was not liable to respondents. Respondents have appealed this trial judge's decision to the Ninth Circuit Court of Appeals. No appeal was taken by the United States from the jury's verdict.

Based on the outcome of the trial in federal court, petitioner Mrs. Drickersen moved in the superior court for summary judgment pursuant to Rule 56(b), Rules of Civil Procedure. Petitioner grounded her motion for summary judgment on the premise that res judicata and collateral estoppel precluded maintenance of the superior court litigation. In its order denying petitioner's motion for summary judgment, the superior court reasoned in part:

The plaintiff (sic) at no time sought to present in Federal Court their claims against defendant third-party plaintiff in that Court. It may very well be that the plaintiffs here could have done so, but the fact is they did not. I find no authority requiring citizens of this state to litigate their differences in Federal Court. This is an election that is available to the citizens of this state if pendent jurisdiction exists and proper application is made in Federal Court. The Federal Court can under certain circumstances assume original and pendent jurisdiction. If it does not, then the parties are not precluded by the fact that they have failed to seek pendent jurisdiction in Federal Court from pursuing their State remedies.

For reasons which will be detailed, we affirm the judgment of the superior court.

In her petition to this court, Mrs. Drickersen advances primarily two arguments in support of her position that the superior court's denial of summary judgment should be reversed. First, she contends that res judicata bars the state court suit against her 'because respondent had the opportunity to litigate petitioner's liability to him in federal court.' Petitioner further argues that since '(r)espondent was a party or was in privity with a party to the federal court action . . .' application of the principles of collateral estoppel bars the superior court action.

We will first examine petitioner's assertion that a genuine opportunity to litigate the claim presented in this case below was available to respondent in the federal forum. Federal jurisdiction being interstitial in nature, it is clear that no independent ground of federal jurisdiction would exist in any action between Mr. Drickersen, and children, and Mrs. Drickersen based on the latter's negligence. Petitioner's theory must be that ancillary jurisdiction would exist in the event respondents filed a claim pursuant to Federal Rule of Civil Procedure 14. ² Respondents, on the other hand, assert that such jurisdiction would be contrary to the clear weight of authority in the federal courts and argue that, even if this court should determine that jurisdiction over the claim would be accepted, respondents ought not be penalized for their reliance on the weight of federal authority.

The present conflict in federal authority arises as a result of the landmark case of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). ³ As the author states in Note, 81 Harvard Law Review 657, 672 (1968):

The implications of Gibbs may be felt in other situations. Its recognition of economy and convenience as important jurisdictional factors may ultimately result in the development of an estoppel rule against plaintiffs who fail to assert all their nonfederal claims which could be heard under pendent jurisdiction.

Petitioner argues that when the United States is a party in a Federal Tort Claims Act suit, the rationale, which generally prohibits the federal courts from allowing Rule 13 cross-claims grounded in state law (or Rule 14(a) claims for that matter), does not hold. The reason for generally disallowing such claims was that diversity of citizenship jurisdiction is destroyed when citizens of the same state assert claims against each other. But here the United States is sued in the federal forum because, under 28 U.S.C. § 1346, it must be, and it in turn sues in the federal court not under diversity jurisdiction but rather because it must do so pursuant to 28 U.S.C. § 1345. ⁴ Thus, there is no question of defendant and plaintiff collusively choosing a federal forum where defendant may implead a third-party defendant whom plaintiff then directly sues. ⁵ Petitioner then cites this court to Davis v. United States, 350 F.Supp. 206, 207-08 (E.D.Mich.1972), ⁶ where the court said:

In United Mines Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the court stated that as between a single plaintiff and a single defendant in the interest of judicial economy a Federal Court may exercise jurisdiction over claims that ordinarily could not be brought in a Federal Court when the Federal and State claims are so interrelated as to be capable of being treated as one case. There must be a common nucleus of operative fact and there must be a substantial Federal claim. Here the suits are completely intertwined . . .. Moreover, the Federal claim here is indeed substantial; this court has jurisdiction over the parties here by virtue of the Federal Tort Claims Act, under which the Federal Courts are the only courts that have the jurisdiction to hear cases sounding in tort against the Federal Government. The third party defendants are properly in the case because of the government's claim of liability over.

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As long as there is only one wrong and one recovery, as here, and, as here, all parties are properly before the court, whether as plaintiff, defendant or third party defendant, it matters not how many defendants there are, nor does it matter that one of the claims between two of the parties is not supported by independent jurisdictional grounds.

Accord, Jacobs v. United States, 367 F.Supp. 1275 (D.Ariz.1973). As petitioner points out, most of respondents' cases involving cross-claims against third parties are pre-United Mine Workers v. Gibbs and are thus questionable authority. Respondents do cite several post-Gibbs case but these cases contain significantly different fact situations. Mickelic v. United States Postal Service, 367 F.Supp. 1036 (W.D.Pa.1973), goes so far as to state that Davis has been disregarded as authority. The Mickelic court concluded that Davis and its progeny are unwarranted extensions of Gibbs. ⁷

In short, we think it unclear whether the United States District Court would have exercised its discretion so as to accept jurisdiction over a suit brought, pursuant to Rule 14, by respondents against petitioner. ⁸ In order to reach the important res judicata and collateral estoppel issues raised by this complaint, we shall assume arguendo that the United States District Court would have accepted jurisdiction.

Given this assumption, we must answer the question whether respondents' superior court action is then barred by application of res judicata principles. The gist of petitioner's argument here is that Mr. Drickersen had an opportunity to litigate the issue of Mrs. Drickersen's liability to him and the children in the federal court action. Not having availed himself of this opportunity in the federal forum, he is barred from asserting it now.

Thus, we must decide whether the permissive phraseology of Rule 14 of Alaska's Rules of Civil Procedure renders the application of the doctrine of res judicata inappropriate. ⁹ We look to the appropriate Alaska Rule of Civil Procedure because the bar of res judicata has been raised in the superior court action and the question thus becomes one of whether it is the policy of the...