Finch v. Hughes Aircraft Co.

• Decision Date: 27 February 1991
• Docket Number: No. 90-1473,90-1473
• Citation: 17 USPQ2d 1914,926 F.2d 1574
• Parties: Walter G. FINCH, Plaintiff-Appellant, v. HUGHES AIRCRAFT COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1574

926 F.2d 1574

17 U.S.P.Q.2d 1914

Walter G. FINCH, Plaintiff-Appellant, v. HUGHES AIRCRAFT COMPANY, Defendant-Appellee.

No. 90-1473.

United States Court of Appeals, Federal Circuit.

Feb. 27, 1991.

Ruth Mae Finch, Baltimore, Md., argued for plaintiff-appellant. Walter G. Finch, Baltimore, Md., filed brief pro se.

Stanley A. Schlitter, Kirkland & Ellis, Washington, D.C., argued for defendant-appellee. With him on the brief was Lawrence J. Gotts. Also on the brief were John Donofrio, Kirkland & Ellis, New York City, and William A. Streff, Jr., Kirkland & Ellis, Chicago, Ill., of counsel.

Before MARKEY, MAYER, and MICHEL, Circuit Judges.

MICHEL, Circuit Judge.

Walter G. Finch appeals the order of the United States District Court for the District of Maryland dismissing his lawsuit against Hughes Aircraft Company. Finch v. Hughes Aircraft Co., Civil No. 89-3281 (D.Md. May 3, 1990). Because Finch failed to oppose Hughes' motion to dismiss, and because the district court in any event correctly concluded that the complaint was duplicative and also that each and every claim in it was barred by res judicata because it was or could have been raised in Finch's several earlier lawsuits against Hughes, we affirm. Moreover, because Finch had no arguable basis in fact or in law for filing his appeal and has made numerous arguments in support of it that are similarly without any basis, we grant Hughes' request for sanctions under Rule 38 of the Federal Rules of Appellate Procedure and require Finch to pay Hughes double its costs.

BACKGROUND

The dismissal which is the subject of this appeal continues a history of over twelve years of litigation by Walter Finch against Hughes Aircraft Company. The series of six lawsuits and cross-claims began in 1978, when Finch brought suit against Hughes in Maryland's Circuit Court for Baltimore City alleging fraud and breach of contract concerning a 1967 patent license agreement between the parties. The case was later consolidated with another that Finch filed in 1980 in the Superior Court for Baltimore City, and after a trial, judgment was entered in favor of Hughes on all of Finch's claims, as well as on Hughes' counterclaim against Finch for fraud. The judgment was affirmed on appeal. Finch v. Hughes Aircraft Co., 57 Md.App. 190, 469 A.2d In 1980, during the pendency of that state court action in Maryland, Finch filed a five-count cross-claim against Hughes, his co-defendant in a federal action, Civil No. 79-2236, by Messerschmitt-Bolkow-Blohm GmbH against Hughes, Finch and other defendants, in the District of Maryland. Finch's cross-claim concerned the same patents and license agreement that were the subject of the state court litigation, and alleged (1) patent infringement, (2) fraud and unfair competition, (3) breach of contract, (4) antitrust violations, and (5) tortious damage to the validity of certain patents. Despite his pending state action and this federal cross-claim, Finch also filed a separate complaint, Civil No. 80-0055, in the same district court, asserting five claims identical to those in his cross-claim in No. 79-2236. The two federal cases were assigned to the same judge. All the counts Finch alleged against Hughes in both the complaint and the cross-claim ¹ were disposed of by summary judgment for Hughes. Finch, et al. v. Hughes Aircraft Co., Civil No. 80-0055 (D.Md. October 9, 1986) (dismissing Count IV in 1980 complaint); Messerschmitt-Bolkow-Blohm GmbH v. Hughes Aircraft Co., et al., Civil No. 79-2236, Finch, et al. v. Hughes Aircraft Co., Civil No. 80-0055 (D.Md. January 21, 1986) (single opinion and order dismissing Counts I, II, III, and V in both complaint and cross-claim). Finch did not appeal.

867, cert. denied, 300 Md. 88, 475 A.2d 1200 (1984), cert. denied, 469 U.S. 1215, 105 S.Ct. 1190, 84 L.Ed.2d 336 reh'g denied, 471 U.S. 1049, 105 S.Ct. 2043, 85 L.Ed.2d 341 (1985).

In 1989 Finch once again attempted to assert a cross-claim against Hughes in Civil No. 79-2236, the still-pending Messerschmitt-Hughes litigation. Counts II through VI of the six-count cross-claim were substantially identical to counts II through V and I, respectively, of the 1980 cross-claim in No. 79-2236 and the separate 1980 complaint, No. 80-0055. The only different claim was Count I, which requested a declaratory judgment of patent invalidity. Four months later, while Finch's motion for leave to file his cross-claim in No. 79-2236 was pending, Finch filed a separate complaint against Hughes in the same court, Civil No. 89-3281, substantially identical to his proffered cross-claim. Hughes opposed Finch's motion to amend his answer in the Messerschmitt case (No. 79-2236) to assert the cross-claim, and in the new action (No. 89-3281) Hughes moved for a dismissal of the complaint. Finch did not oppose the motion to dismiss. The district court denied Finch leave to amend the answer to assert this cross-claim, and granted Hughes' unopposed motion to dismiss the new complaint, holding that the complaint was duplicative of the proffered cross-claim and that each count was barred by res judicata because it was or could have been asserted on at least one prior complaint or cross-claim that had become final. Messerschmitt-Bolkow-Blohm GmbH v. Hughes Aircraft Co., et al., Civil No. 79-2236, Finch v. Hughes Aircraft Co., Civil No. 89-3281 (D.Md. May 3, 1990) (single opinion, with separate orders disposing of new cross-claim and new complaint). Finch appeals only the dismissal of the complaint in Civil No. 89-3281.

DISCUSSION

I

As noted, Finch did not oppose Hughes' motion to dismiss his complaint. He now argues, for the first time, that this dismissal was improper. It is well-settled that, absent exceptional circumstances, a party cannot raise on appeal legal issues not raised and considered in the trial forum.

E.g., Virtue v. Creamery Package Mfg. Co., 227 U.S. 8, 38-39, 33 S.Ct. 202, 208, 57 L.Ed. 393 (1913); Fruin-Colnon Corp. v. U.S., 912 F.2d 1426, 1429 (Fed.Cir.1990); United States v. One 1971 Mercedes Benz, 542 F.2d 912, 915 (4th Cir.1976). Since he failed to oppose the motion to dismiss, all of Finch's arguments against the dismissal are now being raised on appeal for the first time in this case. See Federal Deposit Ins. Corp. v. Bennett, 898 F.2d 477, 479 (5th Cir.1990) (failure to oppose motions to amend complaint and for partial summary judgment precludes contesting them on appeal). Nor has Finch offered any information that might excuse his default. The district court addressed the merits of Hughes' motion to dismiss and did not rely on a theory of waiver in granting the motion, but that does not preclude our doing so. We hold that by failing to oppose Hughes' motion to dismiss, Finch has forfeited his right to contest the dismissal on any ground he could have raised below, and accordingly, we affirm.

Moreover, we note (because it is relevant to the sanctions issue we discuss below) that even were we to reach the merits of his appeal, Finch would have no chance of prevailing. The district court based its ruling on two independently sufficient grounds for dismissal of the complaint. First, the court held that because Finch filed identical complaints in separate pending actions--first the proffered cross-claim in the Messerschmitt litigation (No. 79-2236) and later the separate complaint (No. 89-3281), now on appeal--the separate complaint should be dismissed. A trial court has discretion to dismiss a complaint which simply duplicates another pending related action. See, e.g., Oliney v. Gardner, 771 F.2d 856, 859 (5th Cir.1985) (Where "a plaintiff files a second complaint alleging the same cause of action as a prior, pending, related action, the second complaint may be dismissed.") (citations omitted) (emphasis in original); Washington Metro. Area Transit Auth. v. Ragonese, 617 F.2d 828, 830 (D.C.Cir.1980) (judge "acted within his discretion" in dismissing one of two identical cases). Finch, however, has not demonstrated that the district judge erred, much less abused his discretion, in dismissing Finch's complaint as duplicative, and so the judgment must be affirmed.

The second independent basis for the district court's dismissal is that each and every count of the dismissed complaint is barred by res judicata. Counts II through VI of the complaint (No. 89-3281) involve exactly the claims that had been litigated to a final judgment in the 1980 complaint (No. 80-0055) when summary judgment was granted in favor of Hughes and Finch failed to appeal. That res judicata precludes relitigation of such claims is too plain for argument. ² See, e.g., Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). Count I of the complaint arises out of substantially the same subject matter as the 1980 complaint (i.e., the same patents), and thus is barred by res judicata because it could have been, but was not, raised in the 1980 complaint. E.g., Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979) ("Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding."); Watkins v. M & M Tank Lines, Inc., 694 F.2d 309, 311 (4th Cir.1982) ("[R]es judicata precludes not only the relitigation of issues that were actually decided but also issues which could have been presented for determination."). As we discuss below, Finch's arguments against application of res judicata are frivolous, and the judgment of dismissal must be affirmed on this ground as well.

II

Having determined that the judgment appealed from must be affirmed because of Since Asberry v. U.S. Postal Service, 692 F.2d 1378, 1382, 215 USPQ 921, 921 (Fed.Cir.1982), in our very first year of existence, this court has demonstrated its willingness to impose sanctions pursuant to Rule 38 of the Federal Rules of Appellate Procedure, which...