Lamb Enterprises, Inc. v. Kiroff

• Decision Date: 02 September 1975
• Docket Number: No. C 74-378.,C 74-378.
• Parties: LAMB ENTERPRISES, INC., et al., Plaintiffs, v. Honorable George N. KIROFF et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

399 F. Supp. 409

LAMB ENTERPRISES, INC., et al., Plaintiffs, v. Honorable George N. KIROFF et al., Defendants.

No. C 74-378.

United States District Court, N. D. Ohio, W. D.

September 2, 1975.

Robert B. Gosline, Shumaker, Loop & Kendrick, Toledo, Ohio, for plaintiffs.

Merritt W. Green, Sr., T. Scott Johnston, Hayward, Cooper, Straub, Walinski, Cramer & Co., Toledo, Ohio, for defendants.

OPINION and ORDER

WALINSKI, District Judge:

In this "full faith and credit" case, this Court is asked to end litigation which was begun sixteen years ago, which has been fought and tried in the federal district court in the District of Columbia to the United States Supreme Court, which has also been through the courts of the State of Ohio to the Ohio Supreme Court twice, and which now threatens to be tried all over again, this time in the Common Pleas Court of Lucas County. This Court is understandably somewhat diffident about being drawn into this seemingly limitless lawsuit, for it seems that no order entered in this dispute goes without question, delay, reconsideration, rehearing and, oft-times, revision of reversal. Still, the Court's power has been invoked; rights have been asserted under the federal constitution; and evidence has been adduced —all of which require a decision.

FINDINGS OF FACT

Brown first sued Lamb in Lucas County, Ohio, in 1959. He sought to recover compensation for legal services rendered in connection with proceedings before the Federal Communications Commission for the renewal of a license to operate a television station in Erie, Pennsylvania. These proceedings stretched from 1954 to 1957 during which Brown is said to have rendered extensive legal services on behalf of Lamb, who had been assailed as being a member of the Communist Party and whose qualifications to hold a broadcast license were said to have been thereby thrown into question. The Ohio lawsuit dragged on for nearly four years without coming to trial.

However, in 1963 Brown began again on a new front in the District of Columbia. Apparently, while sojourning there, Lamb was served with process; and a suit raising exactly the same claims was begun in the United States District Court for the District of Columbia. That court denied a motion to quash service on November 12, 1963. It appears that Lamb somewhat frequently transacted business in Washington, and thus that district was not an inappropriate forum for Lamb to defend in.

After this motion to quash was decided, the Lucas County Court placed the cause on its "inactive list until further order of the court." No reason was given, but it may be inferred that Brown had elected to proceed with his claims in the federal court and had so advised the Ohio Common Pleas Judge. This election must be presumed to have been knowing and intelligent even though Brown, a lawyer, knew that he also faced a severe statute of limitations problem in the District of Columbia which he did not have in Ohio.

The case in Washington proceeded to trial in the latter part of October, 1967; and a jury returned a verdict in favor of Brown on November 1, 1967, awarding him $400,000 in damages. However, on December 22, 1967, Judge Matthews of the federal district court entered judgment non obstante veredicto in favor of Lamb. It appears that the judgment n. o. v. was granted on the basis that Brown had failed to adduce sufficient evidence as to facts which would take the case out of the D. C. Statute of Limitations, 12 D.C.Code, § 301(7) (1967). Brown had contended that Lamb should be equitably estopped from asserting the bar of the statute because Lamb had lulled Brown into inaction by assurances which were said to have continued over a period of several years.

In any event, Brown appealed the judgment n. o. v. to the United States Court of Appeals for the District of Columbia Circuit which affirmed the lower court. Brown v. Lamb, 134 U.S.App.D. C. 314, 414 F.2d 1210 (1969). The United States Supreme Court denied certiorari, 397 U.S. 907, 90 S.Ct. 904, 25 L.Ed.2d 88 (1970).

During the conduct of the Washington lawsuit, Brown was pressed in both fora to proceed with both lawsuits. At one point the federal judge required Brown to go forward in federal court or dismiss his case there and noted the problem of the statute of limitations. In Ohio Brown's case was listed for dismissal several times, was activated and placed on pretrial lists and was again placed on the inactive list January 29, 1968. Lamb also moved several times to get the case dismissed but did not prevail.

Finally, after the federal judgment had been entered, the case in Ohio was dismissed inadvertently by Judge Kiroff on March 24, 1969. He was then asked to vacate his dismissal order, and he did so October 5, 1970, saying he had not intended that the Lamb case be dismissed but that the parties should consult LaBarbera v. Batsch, 10 Ohio St.2d 106, 227 N.E.2d 55 (1967), to explore the applicability of the Washington judgment which by then had become final.

Brown moved for reconsideration of the vacation order, and a visiting judge set it aside on March 6, 1972, and ordered the case dismissed. This last order was then appealed to the Court of Appeals for Lucas County which affirmed that order. Brown then appealed to the Ohio State Supreme Court which reversed the Court of Appeals¹ and sent the case back to the Common Pleas Court to be tried. In so doing, the court said:

"In our opinion, the trial court abused its discretion and committed error prejudicial to the appellant in suspending its order of October 5, 1970; errors which occurred in subsequent proceedings could not have transpired but for that abuse. The record establishes that the order vacating the entry of dismissal was properly entered and should not have been reheard by the assigned judge.

"We also note that the case of LaBarbera v. Batsch (1967), 10 Ohio St.2d 106, 227 N.E.2d 55, is distinguishable upon its facts from the instant case, is not dispositive of the issue involving res judicata and should not have been relied upon for that purpose below.

"The judgment of the Court of Appeals is reversed and the cause is remanded to the trial court for further proceedings." Brown v. Lamb, 36 Ohio St.2d 8, 11, 302 N.E.2d 578, 579 (1973).

Judge Kiroff has since denied a motion to dismiss the complaint. Moreover, he has granted a motion to add new parties, has permitted an amendment of the complaint, has permitted discovery to proceed, and has indicated that the cause will proceed to trial. Lamb, however, has since filed the present suit asking this Court to enjoin any further proceedings in the state court and to enjoin permanently the case from being tried therein.

At the hearing on the motion for a preliminary injunction, this Court received the documentary evidence establishing the above facts. Pursuant to Rule 65(a)(2), Federal Rules of Civil Procedure, the hearing on the preliminary injunction was also consolidated with trial on the merits, upon the stipulation of the parties.

The Court finds that Brown's election to proceed to trial in Washington, while urging the Ohio court to hold his case inactive, was done with a purpose to force relitigation in Ohio if he lost in Washington and that the present Ohio suit constitutes a relitigation of the federal suit.

CONCLUSIONS OF LAW

Jurisdiction of this Court is properly invoked pursuant to 28 U.S.C., § 1343(3), and venue is proper in this Court. Plaintiffs claim a right to relief under 28 U.S.C., § 1738, and 42 U.S.C., § 1983.

There is no question that the Full Faith and Credit Clause, U. S. Constitution, Art. IV, § 1, and its implementing statute, 28 U.S.C., § 1738, create rights which plaintiff may assert.

"When a state court refuses credit to the judgment of a sister state because of its opinion of the nature of the cause of action or the judgment in which it is merged, an asserted federal right is denied * * *." Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 443, 64 S.Ct. 208, 216, 88 L.Ed. 149 (1943).²

Section 1983 requires that a plaintiff show:

a) the denial of a federally guaranteed right,

b) by someone acting under color of state law.

Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Ouzts v. Maryland Nat'l Ins. Co., 470 F.2d 790 (9th Cir. 1972).

Therefore, since "state action" under § 1983 includes judicial action, Mitchum v. Foster, 407 U.S. 225, 240-2, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), this Court concludes that § 1983 is an appropriate basis on which to raise a claim that the courts of a state are denying rights asserted under the Full Faith and Credit Clause and § 1738. Moreover, there is no question that a judgment of the federal district court sitting in the District of Columbia is entitled to the same full faith and credit as would be due the judgment of a court of any state. Embry v. Palmer, 107 U. S. 3, 2 S.Ct. 25, 27 L.Ed. 346 (1883); Thompson v. D'Angelo, Del., 320 A.2d 729 (1974).

It is further beyond dispute that § 1983 authorizes injunctions to prevent the denial of rights guaranteed by federal law, Mitchum v. Foster, supra, at least in some instances. However, where a federal court is asked to enjoin proceedings in a state court, important considerations of comity and federalism come into play and counsel restraint. Indeed, 28 U.S.C., § 2283, the anti-injunction statute, commands as much.

In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the Supreme Court held that the requirements of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), also apply when a federal court is asked to enjoin at least one kind of state civil proceeding. In Pursue the district court had been asked to enjoin a state civil nuisance proceeding³ which the Supreme Court concluded was "more akin to a criminal prosecution than are most civil cases." Huffman v. Pursue, supra, 420 U.S. at 604, 95 S.Ct. at 1208. The Court further said:

"For the purposes of the case

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