Ley v. Boron Oil Co.

• Decision Date: 15 August 1978
• Docket Number: Civ. A. No. 78-501.
• Citation: 454 F. Supp. 448
• Parties: Richard G. LEY, Plaintiff, v. BORON OIL COMPANY, Retailers Commercial Agency, Inc., and Retail Credit Company, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

454 F. Supp. 448

Richard G. LEY, Plaintiff, v. BORON OIL COMPANY, Retailers Commercial Agency, Inc., and Retail Credit Company, Inc., Defendants.

Civ. A. No. 78-501.

United States District Court, W. D. Pennsylvania.

August 15, 1978.

D. James Callahan, Weisel, Xides & Conn, Pittsburgh, Pa., for plaintiff.

Scott E. Henderson, Thorp, Reed & Armstrong, Pittsburgh, Pa., for Boron.

John P. McComb, Jr., and Thomas E. Boyle, Moorhead & Knox, Pittsburgh, Pa., for Retailers Commercial Agency and Retail Credit Company, Inc.

OPINION

WEBER, Chief Judge.

Now before the Court are motions to dismiss filed by all three defendants. Each motion contends that the Complaint fails to state a cause of action upon which relief can be granted. The Complaint contains three counts: 1) invasion of privacy, 2) attempted slander, and 3) procurement of information by improper means which advances rival business interests.

These counts are based upon facts which were the subject of a previous lawsuit litigated in this Court in 1976 and which are fully set forth in the previous opinion of this Court in Ley v. Boron Oil Company et al., 419 F.Supp. 1240 (W.D.Pa.1976). The complaint filed by the Plaintiff in that case involved the same and only those parties involved in the instant case.¹ In his first suit, the Plaintiff alleged that various inquiries by the Defendants to determine the Plaintiff's identity constituted violations of provisions of the Fair Credit Report Act, 15 U.S.C. § 1681. Because the reports resulting from these inquiries did not constitute "consumer reports" as defined by the statute, this Court granted motions to dismiss filed by the Defendants and held that the complaint in Civil Action No. 76-612 failed to state a claim upon which relief could be granted, 419 F.Supp. at 1243.

Although the specific counts alleged in the instant case seem patently unmeritorious, we believe that the case's more appropriate disposition involves the application of the doctrine of res judicata. The doctrine of res judicata provides that a previous judgment which is valid, final, on the merits, and on the same cause of action forms an absolute bar in another action between the same parties "not only with respect to every matter which was actually offered and received to sustain the demand or to make out the defense, but also as to every ground of recovery or defense which might have been presented," Mendez v. Bowie, 118 F.2d 435, 440 (1st Cir. 1941), cert. denied sub nom. Rios v. Bowie, 314 U.S. 639, 62 S.Ct. 76, 86 L.Ed. 513 (1941). Applied accordingly, the doctrine "prevents the splitting of a single cause of action and the use of several grounds of recovery under the same action as the basis for separate suits," 118 F.2d at 440. Res judicata furthers the basic judicial interest in the elimination of needless litigation, and respected authority decries a second lawsuit as needless if the procedural rules of the forum would have permitted the plaintiff to present in his first lawsuit the same grounds for relief which he advances in the second, 1B Moore's Federal Practice ¶ 0.410 at p. 1160 (1974). The Federal Rules of Civil Procedure did not prevent the Plaintiff from alleging the tort claims he now advances in his first complaint which involved only claims under the Fair Credit Reporting Act.

Like that of all other reasoned doctrines, the application of res judicata is not without limitation. But in view of the fact that the instant action involves the same and no other parties who litigated the previous action which ended with a final judgment on the merits² of the plaintiff's claims, the only limitation which may possibly bar the application of res judicata to the instant case is whether the two cases involve the same "cause of action." In determining whether two cases involve the same cause of action, a basic concern is whether the plaintiff had a "reasonable opportunity" to advance in his first day in court those claims or theories of recovery which he advances in his second. Stated differently, the plaintiff is not entitled to another day in court if he merely proposes a different theory of recovery based upon the same "liability creating conduct" of the defendant which gave rise to the first action, Williamson v. Columbia Gas & Electric Corp., 186 F.2d 464 (3d Cir. 1950), cert. denied 341 U.S. 921, 71 S.Ct. 743, 75 L.Ed. 1355 (1951).

In Williamson the plaintiff brought two cases under the anti-trust laws; the first charged the defendant with conspiracy to violate Sections 1 and 2 of the Sherman Act and the second named the defendant alone under Section 7 of the Clayton Act. Otherwise, the two complaints were substantially the same as to the facts alleged. In holding that the...