Nernberg v. United States

• Citation: 463 F. Supp. 752
• Decision Date: 18 January 1979
• Docket Number: Civ. A. No. 78-494-A.
• Parties: Maurice A. NERNBERG, Jr. and Nancy Nernberg, his wife, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

463 F. Supp. 752

Maurice A. NERNBERG, Jr. and Nancy Nernberg, his wife, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 78-494-A.

United States District Court, W. D. Pennsylvania.

January 18, 1979.

Brian H. Baxter, Pittsburgh, Pa., for plaintiffs.

Robert J. Cindrich, U. S. Atty., Henry G. Barr, Asst. U. S. Atty., Pittsburgh, Pa., for defendant.

OPINION

WEBER, Chief Judge.

The Plaintiffs bring suit against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), for improperly operating a drug treatment center on property adjacent to that owned by the Plaintiffs. The Defendant has moved for Summary Judgment on two grounds: (1) res judicata, and (2) the exemption of the United States under 28 U.S.C. § 2680(a) from liability based upon the performance or exercise of discretionary functions or duty.

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 a bar 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 a 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, res judicata operates to prevent the splitting of a cause of action and the use of several theories of recovery under the same factual allegations as the bases for separate suits. Res judicata furthers the basic judicial interest in having a plaintiff set before the Court at one time all theories of recovery based upon the same "liability creating conduct" of a defendant, see Williamson v. Columbia Gas & Elec. Co., 186 F.2d 464, 470 (3d Cir. 1950), cert. denied 341 U.S. 921, 71 S.Ct. 743, 95 L.Ed. 1355 (1951). It seems as though the common law judges formulated the doctrine with an eye to the present day, when a rule of judicial economy is needed to prevent piecemeal, fragmentary litigation from further burdening already crowded court dockets.

On July 1, 1977, the same Plaintiffs filed a prior lawsuit against the same Defendant for relief from the same drug treatment facility. There is only one difference between the prior lawsuit and the instant one: the prior one was brought under the Tucker Act, 28 U.S.C. § 1346(a)(2), and the instant one under the Tort Claims Act, 28 U.S.C. § 1346(b). In all other respects the cases are the same. On May 31, 1978, the Court dismissed the Complaint in the prior case pursuant to the Defendant's motion for summary judgment. The Defendant contends that the doctrine of res judicata requires the dismissal of the instant case on the grounds that it merely presents another theory of recovery based upon the same conduct of the Defendant. In response, the Plaintiff argues that res judicata should not apply because he had not exhausted his administrative remedies under the Federal Tort Claims Act when the first case, involving provisions of the Tucker Act, was filed. In the Complaint in the instant case, the Plaintiff indicates that he filed his initial administrative claim on July 7, 1977, just six days after he filed his first lawsuit.

We do not believe that the failure of the Plaintiffs to exhaust their administrative remedies by the time the first...