Poe v. John Deere Co.

• Decision Date: 17 December 1982
• Docket Number: Nos. 81-2273,82-1135,s. 81-2273
• Citation: 695 F.2d 1103
• Parties: 30 Fair Empl.Prac.Cas. 827, 30 Empl. Prac. Dec. P 33,251 Martha POE, Appellant, v. JOHN DEERE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1103

695 F.2d 1103

30 Fair Empl.Prac.Cas. 827,

30 Empl. Prac. Dec. P 33,251

Martha POE, Appellant, v. JOHN DEERE COMPANY, Appellee.

Nos. 81-2273, 82-1135.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 11, 1982.

Decided Dec. 17, 1982.

Daniel M. Dibble, Karen M. Iverson, Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., for appellee John Deere Co.

William H. Pickett, William H. Pickett, P.C., Kansas City, Mo., for appellant.

Before BRIGHT and ARNOLD, Circuit Judges, and MEREDITH, ^* Senior District Judge.

ARNOLD, Circuit Judge.

Martha Poe appeals the District Court's ¹ decisions to affirm an award of costs to defendant in Poe v. John Deere Co., No. 78-0578-CV-W-5 (W.D.Mo. Dec. 14, 1981), and to grant defendant's motion for summary judgment in Poe v. John Deere Co., No. 81-0365-CV-W-5 (W.D.Mo. Oct. 21, 1981) because the suit was barred by res judicata. She contends that the award of costs was improper because the court did not have the power to tax costs against the plaintiff, and in the alternative that there was an abuse of discretion. She alleges that res judicata does not bar her other suit because: a) a claimant who fails to win on one theory may relitigate her claim on a second theory not raised before; b) she raises two separate and distinct causes of action; and c) the causes of action she raises in her second action could not have been raised before. We affirm.

On August 7, 1978, Ms. Poe filed suit ("Poe I" ) in the District Court alleging that John Deere had discriminated against her on the basis of her race and in retaliation for opposing John Deere's employment practices, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-5, and the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981. The Court granted John Deere summary judgment on the Title VII claim on February 27, 1980. ² Trial on the Sec. 1981 claim began on April 27, 1981.

On April 27, 1981, after the jury in Poe I was sworn but before any evidence was presented, Ms. Poe moved for leave to amend her complaint. She wanted to include claims for actual and punitive damages under the theories of "prima facie tort," ³ violation of the Missouri Service Letter Statute, invasion of privacy, injurious falsehood, and intentional infliction of emotional distress. The motion was denied. The jury found in favor of John Deere; the judgment entered on the verdict was not appealed. On October 29, 1981, the Clerk of the District Court entered an order settling costs. The total costs taxed in favor of John Deere amounted to $1,384.91. The Court subsequently denied plaintiff's motion to review the order.

Ms. Poe filed another suit against John Deere ("Poe II" ) in the Circuit Court of Jackson County, Missouri, on April 27, 1981, the same day the trial of Poe I began. She sought the same relief and raised the same theories she had attempted to assert in her amended complaint in Poe I. John Deere removed the case to the District Court because of diversity of citizenship. The District Court granted John Deere's motion for summary judgment on res judicata grounds.

I. Res Judicata

Federal law governs the issue of res judicata. Poe II is in a federal court because it is a diversity case, but the question presented is the effect of the judgment rendered, in Poe I, by a federal court on a claim arising under federal law, 42 U.S.C. Sec. 1981. Even if Poe II had not been removed from the state court, federal law would still have governed this question. See Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104 (1938); Roach v. Teamsters Local Union No. 688, 595 F.2d 446 (8th Cir.1979); Vestal, Res Judicata/Preclusion by Judgment: The Law Applied in Federal Courts, 66 Mich.L.Rev. 1723, 1739-40, 1746 (1968).

Plaintiff's contention that Poe II raises theories of recovery not presented in Poe I does not enable her to escape the effects of res judicata. Final judgment on the merits precludes the relitigation of a claim on any grounds raised before or on any grounds which could have been raised in the prior action. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103 (1981); Cromwell v. County of Sac, 94 U.S. 351, 353, 24 L.Ed. 195 (1877). Having failed to recover on one theory of recovery, a litigant cannot attempt to relitigate the same claim under a different theory of recovery. United States v. Stuart, 689 F.2d 759, 761 (8th Cir.1982); Roach v. Teamsters Local Union No. 688, supra, 595 F.2d at 450; Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015, 1018 (8th Cir.), cert. denied, 444 U.S. 852, 100 S.Ct. 107, 62 L.Ed.2d 69 (1979). ⁴

Plaintiff argues that Poe I and II raise two separate and distinct claims and that Poe I should therefore not be given res judicata effect. The parameters of a "claim" cannot be stated with mathematical precision. For the purpose of determining whether a plaintiff presents two separate claims, we have looked to whether or not proof of the same facts will support both actions, or to whether the wrong for which redress is sought is the same in both actions. Woodbury v. Porter, 158 F.2d 194, 195 (8th Cir.1946). The Restatement (Second) of Judgments has recently adopted a test through which an identity of claims can be more readily discerned. It looks to whether the claims arise from the same transaction.

When a valid and final judgment rendered in an action extinguishes the plaintiff's claim pursuant to the rules of merger or bar ... the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.

Restatement (Second) of Judgments Sec. 24(1) (1982). The term "transaction" connotes a common nucleus of operative facts.

(2) What factual grouping constitutes a "transaction", and what groupings constitute a "series", are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.

Id. at Sec. 24(2). ⁵ We believe this is the correct approach. Cf. Brown v. St. Louis Police Department, 691 F.2d 393, 398 n. 2 (8th Cir.1982) (applying Missouri law); see Lee v. City of Peoria, 685 F.2d 196, 200 (7th Cir.1982); Nilsen v. City of Moss Point, Miss., 674 F.2d 379, 385 (5th Cir.1982); Robbins v. District Court of Worth County, Iowa, supra, 592 F.2d at 1017; but see Tucker v. Arthur Andersen & Co., 646 F.2d 721, 727 (2d Cir.1981); Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir.1975), cert. denied, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830 (1976). ⁶

Poe I and II present the same claim. They emerge from the same transaction and share precisely the same nucleus of operative facts. The thrust of both cases is whether Ms. Poe was wrongfully discharged on April 21, 1977, or whether, as John Deere contends, she was terminated because of excessive and inexcusable absenteeism and because she made an unauthorized use of the company's name. Ms. Poe concedes that both cases involve the same facts and that she would present the same evidence in Poe II as she did in Poe I. Poe II is nothing more than an attempt to apply different legal labels to the facts of Poe I. In her brief to the District Court in opposition to defendant's motion for summary judgment (D.R. 126) she says the following: "[T]he fact that the facts and transactions at issue in Poe I are also at issue in this suit does not mean that the two suits involve the same cause of action. The weight to be given certain facts, the nature of the wrongs asserted, the inferences to be drawn from certain premises, and the conclusion to be drawn from all the evidence are entirely different." We disagree. A court ruling bars relitigation of actions arising out of the same transaction or factual setting. Her concessions are fatal to her cause.

There is no merit to Ms. Poe's argument that the theories she raises in Poe II were unavailable to her in Poe I because the District Court in Poe I denied leave to amend her complaint. Ms. Poe filed suit August 7, 1978. She did not move to amend her complaint until April 27, 1981, the first day of trial. It was well within the District Court's discretion to deny leave under Fed.R.Civ.P. 15(a) because the motion was filed too late. We agree with the Restatement (Second) of Judgments Sec. 25 comment b (1982), that "[i]t is immaterial that the plaintiff in the first action sought to prove the acts relied on in the second action and was not permitted to do so because they were not alleged in the complaint and an application to amend the complaint came too late." Moreover, Ms. Poe could have appealed from the denial of her motion to amend. She did not.

There is equally little merit to Ms. Poe's contention that the prima facie tort and service-letter theories were unavailable prior to April 27, 1981. Missouri's service-letter statute, Mo.Ann.Stat. Sec. 290.140 (Vernon 1965) has been in effect since 1905. It provides: "Whenever any employee ... shall be discharged ... it shall be the duty of the superintendent or manager ... to issue to such employee a letter setting forth the nature and character of service rendered ... and truly stating for what cause, if any, such employee has quit such service." People have been litigating service-letter claims in Missouri at least since a private cause of action to effectuate the statute was recognized in Cheek v. Prudential Ins. Co., 192 S.W. 387, 389-90 (Mo.1916), appeal dismissed, 252 U.S. 567, 40 S.Ct. 343, 64 L.Ed. 719 (1920). By the time Poe I went to trial the statute's validity had been successfully attacked in Rimmer v. Colt Industries Operating Corp., 495 F.Supp. 1217 (W.D.Mo.1980), rev'd, 656 F.2d 323 (8th Cir.1981), ⁷...