FERREN, Associate Judge, concurring in part and dissenting in part:

For the reasons that follow, in particular in Part IV., I would reverse the grant of summary judgment and remand the case for trial.

I. A.

Appellant Gilles appeals from a summary judgment rejecting his constitutional, civil rights, and negligence claims on the ground that they were barred by the doctrine of res judicata (claim preclusion). Appellant's suit arose out of appellee Ware's allegedly negligent placement of 44 points on appellant's driver's record, resulting in the wrongful suspension of his license and his ultimate loss of livelihood as a taxicab driver. The issues on appeal are (1) whether the trial court had jurisdiction to decide the preclusion issue when appellant failed to pursue an administrative remedy for his license revocation; (2) if there was jurisdiction, whether res judicata precluded appellant from pursuing his negligence claim in "state" court after dismissal on the merits of his constitutional and civil rights claims in federal court, when appellant had not joined his negligence claim as an alternative theory of recovery in the federal action, invoking the court's discretionary exercise of pendent jurisdiction; (3) even if res judicata ordinarily would apply because of a failure to invoke the federal court's pendent jurisdiction, whether res judicata does not apply when the federal claim is summarily dismissed before trial and, as a consequence, the federal court presumably would have declined to exercise its pendent jurisdiction; and (4) in any event, whether appellee Ware waived the right to invoke res judicata by either expressly consenting to, or at least implicitly acquiescing in, appellant's decision to prosecute his federal and state claims separately.

I conclude, and Judge WAGNER concurs, that (1) the trial court had jurisdiction over the negligence claim because appellant was not required to exhaust administrative remedies; (2) appellant improperly split his cause of action because the negligence claim arose out of the same factual transaction that gave rise to the federal lawsuit, and the federal court could have exercised pendent jurisdiction over the state (negligence) claim; and (3) ordinarily, under these circumstances, res judicata would bar the Superior Court lawsuit, unless the defendant has waived the benefit of the rule against claim-splitting either explicitly or implicitly.

More specifically, Judge WAGNER and I in the majority agree on two significant issues. First, to avoid problems inherent in "claim-splitting," a party who files a claim in federal court should invoke that court's pendent jurisdiction and join in the federal complaint all theories of relief under state law arising out of the same transaction. Second, a litigant who fails to do so and later attempts to bring the state claim in state court will find the state claims barred by res judicata unless (A) the federal court has clearly indicated it would not have exercised its pendent jurisdiction, or (B) the party seeking to rely on res judicata has waived it by express or implied consent.

Judge WAGNER and I part company, however, over whether appellee has stated a prima facie case supporting his motion for summary judgment based on res judicata. Judge WAGNER concludes that appellee has stated that prima facie case, and that appellant failed to rebut it. I conclude that appellant, in opposing summary judgment, has sufficiently met his burden of production to rebut appellee's prima facie defense. As a consequence, I believe that appellee can be said as a matter of law to have acquiesced in appellant's claim-splitting because he failed to object when appellant dropped his tort claim from his federal complaint in order to file the present tort action in Superior Court. The judgment accordingly should be reversed and the case remanded for trial.

B.

In April 1984, appellant, a taxi driver in the District of Columbia, received a notice from the Bureau of Motor Vehicles Services (BMVS) proposing to revoke his driver's license because his driving record showed traffic violations totalling 44 points. The notice informed appellant of a hearing on the proposed revocation in three weeks. At the May 1984 hearing, appellant contended that he had not accumulated 44 points. The hearing examiner ruled against him and revoked appellant's license on the day of the hearing. Appellant did not exercise his right to appeal the examiner's decision to an Appeals Board. See D.C. Code §§ 40-632, -634 (1990); 18 DCMR § 1004.1, 3014.1, 3014.9 (1987); Kuflom v. Bureau of Motor Vehicle Services, 543 A.2d 340, 344 (D.C. 1988). Four days after the revocation, the hearing examiner issued appellant a restricted driver's license authorizing him to operate his taxi Monday through Saturday, from 9:00 a.m. to 7:00 p.m.

One year later, in May 1985, appellant's counsel wrote a letter to the Administrator of the Transportation Systems Administration asking him to review appellant's record and to overturn the revocation. In June 1985, the Administrator responded that "this revocation was issued in error since points are not assessed until a moving traffic infraction is adjudicated. Your client should have been suspended at that time for unsatisfied traffic infractions. . . ." He voided the revocation and issued a Notice of Proposed Suspension. By August 1985, the 44 points had been removed from appellant's driving record.

On July 9, 1985, appellant filed suit in United States District Court for the District of Columbia against a number of District officials (the "District defendants") alleging that their inaccurate maintenance of his driver's license record had violated his constitutional rights and constituted libel, intentional infliction of emotional distress, and negligence. He demanded $4.5 million in damages. Appellant's pleading recognized that the federal court had "pendent jurisdiction to consider other claims which arise out of the same set of facts as the federal claims." In December 1985, however, appellant filed an amended complaint alleging only the constitutional due process claim and dropping all state law claims. By August 1987, all defendants had been dismissed except Clifton Ware, a BMVS supervisor responsible for physically entering the incorrect points onto appellant's driver's record. On November 12, 1987, the federal court granted the District's motion for summary judgment, concluding from the motions, the stipulated facts, and other materials of record that there was no genuine triable issue of material fact. See Gilles v. Touchstone, 676 F. Supp. 341, 346 (D.D.C. 1987).

Meanwhile, on April 27, 1987, appellant had filed suit in Superior Court alleging that Clifton Ware had "negligently or in violation of [appellant's] constitutional and civil rights placed points on [appellant's] Driver's Record. . . . As a result, [appellant] was denied his employment as a taxicab driver and was refused citizenship." Appellant demanded $4.5 million in damages. Within the month, appellee Ware filed a motion requesting a stay of these proceedings pending the outcome of the federal lawsuit. The stay was granted. Two years later, after the stay had been lifted, appellee filed his answer, asserting that the state claim was barred by the federal court judgment and citing Gilles v. Touchstone. Six months later, on November 17, 1989, the Superior Court granted appellee's motion for summary judgment, ruling that "plaintiff's action is precluded by the prior federal court judgment on the same cause of action."

II.

Appellee Ware argues for the first time on appeal, and Judge REILLY agrees, that appellant's failure to appeal the suspension of his driver's license to the Department of Transportation Appeals Board, see D.C. Code § 40-631 (1990), barred his negligence claim in court under the doctrine requiring exhaustion of administrative remedies. Accordingly, appellee contends, we should sustain the trial court's dismissal of appellant's claim on the ground that the trial court lacked jurisdiction over the negligence claim. It would follow that we need not — and should not — reach the issue of res judicata. We agree that if the exhaustion of administrative remedies doctrine were to apply to appellant's negligence claim, the trial court would not have jurisdiction. See D.C. Code §§ 1-1510 (1987), 40-635 (1990). The exhaustion doctrine, however, does not apply here.

Judge REILLY reasons that one "who suffers harm by his own failure to appeal a decision he could have challenged — and arguably prevented — has no standing to recover damages in a trial court for the collateral consequences of not availing himself of his legal rights." Post at 555. The issue of who caused appellant's damages, however, is distinct from the issue of the Superior Court's subject matter jurisdiction to hear the case. It may very well be that appellant's failure to pursue an administrative remedy at the time his license was suspended was a "but for" cause of the damages he alleges. See, e.g., McCord v. Green, 362 A.2d 720, 725-26 (D.C. 1976) (discussing doctrine of avoidable consequences). The factual cause of appellant's damages, however, is not relevant to the legal question of the Superior Court's jurisdiction to hear a negligence action for a tort remedy.

Appellant has filed a complaint in Superior Court for damages arising from appellee's negligent acts — a claim over which the Appeals Board would not have had jurisdiction. More specifically, appellant has not asked for the type of relief that is within the Appeals Board's jurisdiction to grant; for example, to remove the 44 points from his driving record, reinstate his license, or set aside any monetary penalties. See D.C. Code § 40-632 (1990). The statute authorizing the Appeals Board only permits that Board to review decisions of the hearing examiner and to consider the established record; it does not allow the Board to hear claims of agency negligence or to award damages caused by agency error. See D.C. Code § 40-633 (1990); 18 DCMR § 3014.4 (1987). We conclude, accordingly, that there was no administrative remedy for appellant to exhaust before filing his claim for money damages against appellee. See Goode v. Antioch University, 544 A.2d 704, 706 n. 5 (D.C. 1988) (no exhaustion requirement when appellant could not receive money damages in administrative appeal). The proper District of Columbia forum for initially filing appellant's negligence action initially was the Superior Court. Cf. Miller v. District of Columbia, 587 A.2d 213, 216 (D.C. 1991) (" '[T]he dominant characteristic' of § 1983 actions is that 'they belong in court' and that such causes of action 'exist independent of any other legal or administrative relief that may be available as a matter of . . . law. They are judicially enforceable in the first instance.' " (citation omitted, emphasis in original) (quoting Felder v. Casey, 487 U.S. 131, 148, 108 S.Ct. 2302, 2312, 101 L.Ed.2d 123 (1988))).

Although appellant's possible failure to mitigate damages may reduce any dollar amount he is entitled to recover, this has nothing to do with the antecedent question of jurisdiction. The issue of causation and damages should be left to the trier of fact. In short, because the Appeals Board did not have jurisdiction to provide the tort remedy appellant now seeks, the exhaustion doctrine is not applicable, and the Superior Court has jurisdiction to hear appellant's claim.

III.

Appellant filed separate actions, reflecting different legal theories, in the federal District Court and in the District of Columbia Superior Court. Both complaints, however, concerned the same transaction: Ware's erroneous assignment of 44 points on appellant's driver's record between April and May 1984, allegedly causing appellant to lose his employment as a taxicab driver and his opportunity for United States citizenship. See supra note 3. Each complaint also requested the same relief: $4.5 million in damages and such equitable relief as the court deemed appropriate. The only significant differences between the complaints were their theories of recovery: constitutional and civil rights claims in the amended federal complaint, and negligence, constitutional, and civil rights claims in the Superior court complaint. Appellant, moreover, had the opportunity to allege the state (negligence) claim in his federal complaint by asking the court to exercise pendent jurisdiction. In fact, appellant did so in his initial federal complaint but withdrew the pendent claims in filing his amended federal complaint. The question presented, therefore, is whether appellant's failure to pursue a state claim in federal court — and the resulting split of his cause of action between the federal and state forums — now forecloses a second, state proceeding because the federal court has rendered a final disposition. See Smith v. Jenkins, 562 A.2d 610, 614 (D.C. 1989).

After a valid final judgment on the merits of a judicial proceeding, the doctrine of res judicata (claim preclusion) absolutely bars the same parties from relitigating the same claim (and, generally, any claim that should have been raised) in a subsequent lawsuit. See United States v. Int'l Bldg. Co., 345 U.S. 502, 504, 73 S.Ct. 807, 808, 97 L.Ed. 1182, reh'g denied, 345 U.S. 978, 73 S.Ct. 1120, 97 L.Ed. 1392 (1953); Washington Medical Center, Inc. v. Holle, 573 A.2d 1269, 1280-81 (D.C. 1990); Henderson v. Snider Bros., Inc., 439 A.2d 481, 485 (D.C. 1981) (en banc). This doctrine generally extends to dismissals, to summary judgments, and to judgments upon a verdict after trial. See Super.Ct.Civ.R. 41(b) (unless court specifies otherwise, dismissal operates as adjudication on the merits unless dismissal occurs for lack of jurisdiction or failure to join a party under Rule 19); Stutsman v. Kaiser Found. Health Plan, 546 A.2d 367, 370 (D.C. 1988) (judgment in favor of plaintiff after jury verdict in survival/loss of consortium action precluded later wrongful death action based on same facts); Scholl v. Tibbs, 36 A.2d 352, 353 (D.C. 1944) (judgment of landlord and tenant court for tenant after hearing, but without formal trial, was res judicata in subsequent action for same relief); Prakash v. American University, 234 U.S.App.D.C. 75, 82-83, 727 F.2d 1174, 1181-82 (1984) (summary judgment is ruling on merits and bars subsequent action); 10 C. WRIGHT, A. MILLER AND M. KANE, FEDERAL PROCEDURE AND PRACTICE § 2712 at 584-85, § 2713 at 612 (1983) (same); RESTATEMENT (SECOND) OF JUDGMENTS § 19 comment g (1982) (same).

A final judgment on the merits "embodies all of a party's rights arising out of the transaction involved, and a party will be foreclosed from later seeking relief on the basis of issues which might have been raised in the prior action." Stutsman, 546 A.2d at 370 (emphasis added); see Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948). The doctrine generally operates to prevent a party from splitting a single transaction into its several theories of recovery and "holding one in reserve while he [or she] presses another to judgment." Stutsman, 546 A.2d at 371 n. 7, (quoting Brotherhood of R.R. Trainmen v. Atlantic Coast Line R.R. Co., 127 U.S.App.D.C. 298, 300, 383 F.2d 225, 227 (1967), cert. denied, 389 U.S. 1047, 88 S.Ct. 790, 19 L.Ed.2d 839 (1968)). A party who fails to succeed on one theory of recovery may not frustrate the doctrine of res judicata by cloaking the same cause of action in the language of another theory in a subsequent proceeding. See RESTATEMENT (SECOND) OF JUDGMENTS §§ 17, 23, and 24 (1982). As the Restatement notes, however, claim preclusion is not only based upon, but also limited by, the opportunity for a plaintiff under modern liberalized joinder rules to present all the claims in one proceeding. Id. at § 25, comment f. We must therefore be alert to any limitation inherent in a federal court's pendent jurisdiction over state claims in evaluating the impact of the federal court decision on this litigation.

Appellant argues that because the federal court could entertain his state law claims only by exercising pendent jurisdiction, and because pendent jurisdiction is discretionary and uncertain, it is unfair to expect him to have joined his state theories of relief in the federal complaint. We cannot agree. Ordinarily, a federal court does not have jurisdiction over claims based on state law unless complete diversity of citizenship exists between the parties. See 28 U.S.C. § 1332 (1966); Indianapolis v. Chase Nat'l Bank, 314 U.S. 63, 69, 62 S.Ct. 15, 16, 86 L.Ed. 47, reh'g denied, 314 U.S. 714, 62 S.Ct. 355, 86 L.Ed. 569 (1941). An exception to this rule, known as pendent jurisdiction, is available when "the state and federal claims . . . derive from a common nucleus of operative fact" and "[t]he federal claim [has] substance sufficient to confer subject matter jurisdiction on the court." United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).

A federal court's exercise of pendent jurisdiction, however, is discretionary. It "need not be exercised in every case in which it is found to exist," id. at 726, 86 S.Ct. at 1139; rather, the court's decision will turn on "considerations of judicial economy, convenience and fairness to litigants." Id. Because a federal court should avoid "needless decisions of state law," the court ordinarily should decline to exercise pendent jurisdiction "if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought," id., or "if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense." Id. In such a case, the federal court should dismiss the state claims without prejudice, leaving them for resolution to the state courts. Id. at 727, 86 S.Ct. at 1139. On the other hand, if the state claim is "closely tied to questions of federal policy," pendent jurisdiction should be exercised. Id. When, "considered without regard to their federal or state character, a plaintiff's claims are such that he [or she] would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole." Id. at 725, 86 S.Ct. at 1138.

A party cannot know for sure that a federal court will agree — or refuse — to hear pendent claims. We agree, however, with the United States Court of Appeals for the Seventh Circuit that a plaintiff in virtually every case should file all pendent claims and test the court's discretion.

The uncertainty over whether a trial judge would exercise pendent jurisdiction does not justify permitting the institution of a multiplicity of proceedings which may have the effect of harassing defendants and wasting judicial resources. If appellant entertained any doubts at the pleading stage, they should have been resolved in favor of joinder. See Federated Department Stores v. Moitie, [ 452 U.S. 394, 404] [, 101 S.Ct. 2424, 2430, 69 L.Ed.2d 103] (1981) (Blackmun, J., concurring).

Harper Plastics v. Amoco Chemicals Corp., 657 F.2d 939, 946 (7th Cir. 1981) (emphasis added). See also Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444, 450, 440 N.E.2d 1164, 1168-69 (1982); Anderson v. Werner Continental, Inc., 363 N.W.2d 332, 335 (Minn.Ct.App. 1985); Juneau Square Corp. v. First Wisconsin Nat'l Bank of Milwaukee, 122 Wis.2d 673, 681, 364 N.W.2d 164, 170 (Wis.Ct.App.), review denied, 122 Wis.2d 782, 367 N.W.2d 222 (1985). We find the Seventh Circuit's reasoning persuasive and therefore reject appellant's argument that the mere uncertainty of a federal court's exercise of pendent jurisdiction should relieve him of his obligation to plead a state claim.

We therefore recognize the rule that, when a plaintiff has an apparent right to invoke a federal court's pendent jurisdiction over a state law claim, the plaintiff is obliged to file the pendent claim and force the federal court to exercise its discretion to keep or decline jurisdiction; otherwise, the plaintiff will confront a res judicata bar of the state claim in a subsequent state court proceeding. This approach is in accord with the RESTATEMENT (SECOND) OF JUDGMENTS § 25, comment e, and with a substantial body of caselaw. As the Reporter's Note to RESTATEMENT § 25, comment e, indicates, however, the caveat in this comment — that a second action is not precluded if the federal court in the first action would clearly have declined to exercise its jurisdiction over the omitted state claim — is open to varying interpretations. See id., Reporter's Note at 228. To be sure, the caveat contains almost inherently contradictory concepts: predicting that a court will "clearly" decline to do something that is a matter of "discretion."

One line of cases, which appellant urges us to adopt, holds that if the federal question is decided on summary judgment, as happened in appellant's federal lawsuit, it is "clear" — or at least it should be deemed "clear" — that the federal court would not have entertained pendent jurisdiction over the state claim. Accordingly, the state claim should not be barred even if it could have been, but was not, pleaded in the federal complaint. See Merry v. Coast Community College Dist., 97 Cal.App.3d 214, 227, 158 Cal.Rptr. 603, 612 (Ct.App. 1979); Ron Tonkin Gran Turismo, Inc. v. Wakehouse Motors, Inc., 46 Or. App. 199, 206, 611 P.2d 658, 662 (Ct.App. 1980). These courts reason that once the federal court has dismissed the federal claim, that court must decline to exercise pendent jurisdiction over a state claim. See Duckworth v. Franzen, 780 F.2d 645, 656 (7th Cir. 1985) (pendent claim jurisdiction should normally be relinquished when federal claim is dismissed before trial), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986). These courts, therefore, interpret the RESTATEMENT § 25, comment e caveat to mean that res judicata does not apply to subsequent state actions concerning the same cause of action if the federal action is decided on summary judgment, even if a pendent state claim was never filed in the federal complaint.

We believe this approach is unworkable because it is based on pure speculation. A federal court is not obliged automatically to dismiss a pendent state claim if it grants summary judgment on a federal claim. See Hagans v. Lavine, 415 U.S. 528, 539-40, 94 S.Ct. 1372, 1380, 39 L.Ed.2d 577 (1974) (equal protection claim not so frivolous or insubstantial on face of complaint that court had no jurisdiction to reach merits of state law claim before dismissing federal claim); Florida East Coast Ry. Co. v. United States, 519 F.2d 1184, 1194 (5th Cir. 1975) ("The jurisdiction of the district court is dependent upon the substantiality of the claims stated in the complaint, not by plaintiff's ultimate right to judgment." (citing Hagans, 415 U.S. at 542, 94 S.Ct. at 1381)). Thus, there is no basis for a plaintiff or a state court to conclude with any reliable degree of certainty that the federal court "clearly" would have dismissed the pendent state claim once the federal complaint, although disposed of on summary judgment, had raised an issue of federal or constitutional law sufficient to invoke the jurisdiction of the federal court.

More persuasive case authority cited in the Reporter's Note interprets the caveat in RESTATEMENT § 25, comment e, to require a plaintiff to file the state claim in federal court, invoke the court's pendent jurisdiction, and thus build a record reflecting the court's exercise of discretion over pendent jurisdiction. In this way, the plaintiff can cause the federal court to make clear whether its summary judgment includes state as well as federal claims. See McLearn v. Cowen Co., 48 N.Y.2d 696, 697, 422 N.Y.S.2d 60, 61, 397 N.E.2d 750, 751 (1979). See also Anderson, 387 Mass. at 451, 440 N.E.2d at 1169; Annotation, Existence of Pendent Jurisdiction of Federal Court over State Claim when Joined with Claim Arising Under Laws, Treaties, or Constitution of United States, 75 A.L.R. FED. 600, 612-13 (1985). "[I]n case of doubt, it is appropriate for the rules of res judicata to compel the plaintiff to bring forward his [or her] state theories in the federal action, in order to make it possible to resolve the entire controversy in a single lawsuit." RESTATEMENT (SECOND) OF JUDGMENTS § 25 reporter's note at 228 (1982). A party should not be relieved of its relatively light obligation to plead the state claim merely because at some later time the federal court grants summary judgment on the federal claim. In this case, we cannot say it is clear that the federal court would have declined to exercise its pendent jurisdiction over the negligence claim; appellant's federal claim, when he filed his complaint, was not so insubstantial that the federal court "clearly" would not have taken jurisdiction. The fact that Judge Hogan, in appellant's federal district court case, granted summary judgment on appellant's due process claim because of the adequacy of state administrative remedies and appellant's failure to avail himself of those remedies, see Gilles, 676 F. Supp. at 345, does not "clearly" mean that Judge Hogan would not have exercised jurisdiction over a pendent state claim alleging common law tort theories which — as we here hold — are not barred by failure to exhaust those administrative remedies.

If the federal district court concludes that the federal claims are without merit, as happened here, or proceeds with the federal case but concludes that the state issues predominate in the litigation, see Gibbs, 383 U.S. at 727, 86 S.Ct. at 1139, the federal court very likely will resolve the federal claim and dismiss the state claims without prejudice. The plaintiff will then be permitted to pursue the state law claims in a separate state proceeding. Id. "Discretionary refusal by a federal court to exercise pendent jurisdiction over a state claim does not bar further litigation of the state claim in state court." Boccardo v. Safeway Stores, Inc., 134 Cal.App.3d 1037, 1046, 184 Cal.Rptr. 903, 909 (1982).

The fact, however, that a federal court most likely will dismiss a state law claim — a prediction based on the results of earlier cases — is not enough to assure litigants that the court "clearly" will decline to exercise "discretionary" power to keep the case. Only when the federal court, as a matter of law, is left without discretion to keep the pendent state case will that result be "clear" within the meaning of RESTATEMENT § 25, comment e, as we interpret it. We think this bright-line rule is necessary to promote the interests of the disputing parties and the court system in judicial economy and in litigation certainty. The application of res judicata permits a clear and final result; the alternative, allowing a party to split state and federal claims, is based on the mere fortuity of a federal court's granting summary judgment to a defendant on a federal claim to which a pendent state claim readily could have been — but was not — added.

We therefore reject appellant's contention that he was not required to plead related state claims in his federal complaint simply because summary judgment was granted on his federal claim. The rule we adopt here requiring plaintiff to present all pendent state claims in the initial, federal action promotes fairness to litigants by simplifying the rules of pleading while encouraging judicial economy by disposing of a controversy, if possible, in a single proceeding. In sum, if a plaintiff wishes to preserve a state law claim based on the same transaction that underlies a federal claim, the plaintiff must join the state claim as a count in the federal court complaint, see FED.R.CIV.P. Rule 18 (joinder of claims and remedies), and invoke the federal court's pendent jurisdiction.

IV.

Alternatively, appellant argues that the trial court erred in granting appellee's motion for summary judgment because res judicata does not apply for another reason: appellee Ware consented, either explicitly or implicitly, to appellant's splitting his claims between the federal and state forums.

In ruling on summary judgment that res judicata (claim preclusion) barred appellant's lawsuit, the trial court did not address the consent to claim-splitting issue. Once, however, appellant raised the "genuine issue" of acquiescence in the trial court, Nader v. de Toledano, 408 A.2d 31, 48 (D.C. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980), appellee had the burden, as the moving party, to show that he had not agreed to appellant's claim-splitting. More specifically, appellee had to show that he did not consent when — in response to the District defendants' motion to dismiss appellant's tort claim in the federal lawsuit — appellant amended his District Court complaint to remove his tort claim and filed a separate tort action in Superior Court. Nonetheless, neither appellee's motion for summary judgment in the Superior Court nor the trial court's order granting that motion says anything about the acquiescence issue, which is fundamental to the resolution of appellee's res judicata defense.

In reviewing the propriety of the trial court's order granting summary judgment, this court must determine (1) whether there are any unresolved issues of fact relevant to the ruling and (2) whether the trial court correctly applied the law of res judicata. See Davis v. Gulf Oil Corp., 485 A.2d 160, 164 (D.C. 1984). In carrying out this task, "we must view the record in the light most favorable to [appellant,] the party who opposes summary judgment[,] and thus resolve any doubt as to the existence of a factual dispute against [appellee,] the moving party." Id.

Under the RESTATEMENT, res judicata (claim preclusion) does not apply to extinguish a claim if "[t]he parties have agreed in terms or in effect that the plaintiff may split his [or her] claim, or the defendant has acquiesced therein." RESTATEMENT (SECOND) OF JUDGMENTS § 26(1)(a) (1982); see 18 C. WRIGHT, A. MILLER AND E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4414 (1981); Rennie v. Freeway Transport, 294 Or. 319, 327, 656 P.2d 919, 924 (1982). That is because the main purpose of res judicata "is to protect the defendant from being harassed by repetitive actions based on the same claim. The rule is thus not applicable when the defendant consents, in express words or otherwise, to the splitting of the claim." RESTATEMENT § 26, comment a. Applying the RESTATEMENT rule, I conclude that the record on summary judgment does not establish that the District defendants expressly agreed to appellant's claim-splitting. But I also conclude that the record conclusively shows that appellee acquiesced in — i.e., implicitly consented by his actions to — appellant's decision to prosecute separately his federal and state claims. Thus, the trial court erred by granting summary judgment to appellee based on res judicata.

A.

I understand appellant's argument that appellee expressly consented to claim-splitting to be as follows. After appellant had filed his federal court complaint in July 1985 incorporating both constitutional due process and pendent state claims, the District defendants moved for summary judgment (the first motion) in federal court by arguing in a supporting memorandum:

Furthermore, 42 U.S.C. § 1983 imposes liability for violations of rights protected by the Constitution not for violations of duties of care arising out of tort law. Remedy for the latter type must be sought in state court under traditional tort-law principles. Baker v. McCollan, supra, 443 U.S. [137] at 146, 99 S.Ct. [2689] at 2695-96 [ 61 L.Ed.2d 433 (1979)]. See also, Parratt v. Taylor, supra, 451 U.S. [527] at 545, 101 S.Ct. [1908] at 1917 [ 68 L.Ed.2d 420 (1981)].

In response, rather than litigating the District defendants' motion, appellant filed in December 1985 an amended federal court complaint that added some defendants, dropped others, and — of significance here — dropped the pendent state claims. Again, the District defendants moved for summary judgment (the second motion) in federal court, arguing in their supporting memorandum in May 1987, that

since the local courts are available to plaintiff to redress any alleged negligence on part of the defendants . . . his complaint must be dismissed.

A month earlier, April 1987, appellant had filed this Superior Court negligence action based on one of the pendent state claims he had dropped from his federal court lawsuit. In May 1987, appellee filed a motion requesting the Superior Court to stay proceedings until the federal claim was resolved. The motion was granted. In December 1987, Judge Hogan — never having ruled on the District's first motion before appellant amended his complaint — granted the District defendants' second summary judgment motion in the federal action. The judge entered judgment on the ground that due process had been available through local remedies which appellant had ignored.

Failure to exercise available adequate state remedies does not entitle a plaintiff to compensation for due process violations. As the United States Court of Appeals for the Third Circuit stated, "substantive mistakes by administrative bodies in applying local ordinances do not create a federal claim so long as correction is available by the state's judiciary." Cohen v. City of Philadelphia, 736 F.2d 81, 86 (3rd Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984) (Third circuit joins First and Seventh Circuits in holding that individual's due process rights are not violated as long as adequate state procedures exist to remedy negligent errors in applying local law).

Gilles, 676 F. Supp. at 345 (some citations omitted). In October 1989, appellee Ware filed an answer to appellant's amended complaint in Superior Court, invoking res judicata based on Judge Hogan's summary judgment ruling in Gilles.

Although the record does not reflect a distinct, express agreement between the parties to waive a res judicata defense to appellant's Superior Court negligence action, appellant argues that the District defendants' memorandum supporting their first summary judgment motion in the federal lawsuit effectively was, or reflected, such an agreement, inducing him to drop the pendent tort claims from his federal court lawsuit and to refile in Superior Court. The District defendants' memorandum in support of their second summary judgment motion in the federal lawsuit, he says, confirms this consent.

I cannot agree with appellant's position. Without more on the record, I cannot say the District should be deemed, unilaterally, to have made an express agreement through its pleadings. One possible interpretation of the District's memoranda is that they merely articulated the very basis Judge Hogan used for concluding that constitutional due process had not been violated: failure to use available state remedies. That is not explicitly to say the District defendants were willing to convert their constitutional defense in federal court — failure to invoke state remedies — into an invitation for appellant to sue a second time, in Superior Court. In short, the record does not support the contention that the District expressly consented to claim-splitting.

B.

Appellant, however, has also argued that the District defendants' memoranda made clear that appellee at least acquiesced in (implicitly consented to) appellant's claim-splitting by failing to object to it, and that such acquiescence waived the res judicata defense. See RESTATEMENT § 26(1)(a). While Judge WAGNER appears to agree with me that this jurisdiction should adopt the RESTATEMENT rule on claim-splitting, including the test for acquiescence, see post at 549, we disagree as to the test's application and as to what evidence is required to support an acquiescence argument in order successfully to oppose a motion for summary judgment. Neither appellee nor the trial court spoke to this issue. In evaluating the summary judgment, Judge WAGNER in effect reverses our standard of review, drawing all favorable inferences against appellant, the nonmoving party, and misapplies the RESTATEMENT test for determining acquiescence that she adopts from Rennie v. Freeway Transport, supra.

RESTATEMENT (SECOND) OF JUDGMENTS § 26, comment a, states:

Where the plaintiff is simultaneously maintaining separate actions based upon parts of the same claim, and in neither action does the defendant make the objection that another action is pending based on the same claim [usually called an Objection based on "other action pending"], judgment in one of the actions does not preclude the plaintiff from proceeding and obtaining judgment in the other action. The failure of the defendant to object to the splitting of the plaintiff's claim is effective as an acquiescence in the splitting of the claim. See Illustration 1.

In opposing summary judgment in Superior Court, appellant argued that the District defendants in the federal litigation had moved for summary judgment on appellant's tort claim the first time on the ground that it belonged in Superior Court, and that this motion had led appellant to amend his federal complaint to remove the tort claim and then to file it (this case) in Superior Court. As a consequence of this amendment, the District Court did not rule on the District defendants' first summary judgment motion. Whether the District Court's failure to rule on that motion "resolved" the motion or whether, instead, that motion merely "became moot," see post at 552, is wholly irrelevant to the issue here: whether, in his opposition to appellee's motion for summary judgment in Superior Court relying on res judicata, appellant sufficiently raised the factual issue of appellee's acquiescence in the claim-splitting, with the result that the burden of going forward to establish the res judicata defense shifted back to appellee Ware.

To raise acquiescence, appellant alleged that the District defendants in the federal litigation — including appellee Ware — "repeatedly argued" that appellant should have brought his case in Superior Court. Appellant cited the District Defendants' first motion for summary judgment in the federal suit to support his factual allegation. That allegation, coupled with the District's action in filing a motion for a mere stay in Superior Court (pending resolution of the federal lawsuit) — rather than filing a motion for dismissal or some other "objection" to the Superior Court suit — sufficiently rebutted appellee's showing in support of summary judgment based on res judicata. In short, appellant sufficiently raised the factual issue of appellee's acquiescence in the claim-splitting; he provided more than the "conclusory assertion" Judge WAGNER perceives. See post at 553. The trial court, therefore, should have ruled on the acquiescence issue before granting summary judgment as a matter of law based on res judicata.

Viewing the record in the light most favorable to appellant as the nonmoving party opposing appellee's motion for summary judgment, I believe it is clear that the trial court did not resolve the factual issue of acquiescence in the claim-splitting. In any event, appellee failed to carry his burden of showing that appellant did not sufficiently raise the consent-to-claim-splitting issue. Appellee altogether failed to proffer anything of record to show that he, or the District defendants earlier, had objected to the claim-splitting when appellant responded to the defendants' expressed concerns in the federal litigation by amending the federal complaint and refiling the negligence action in Superior Court.

Accordingly, if we were to adopt the RESTATEMENT (SECOND) OF JUDGMENTS § 26 rule on acquiescence to claim-splitting — as I believe we should — then it is clear, as a matter of law, that appellee is not entitled to summary judgment based on res judicata. After appellant filed his Superior Court complaint he was "simultaneously maintaining separate actions based on parts of the same claim." RESTATEMENT § 26, comment a. Thus, in order for appellee to preserve his res judicata defense, he was required to file an objection to appellant's Superior Court complaint. He did not do so. "The failure of [appellee] to object to the splitting of [appellant's] claim is effective as an acquiescence in the splitting of the claim." Id.

Rather than filing an objection to appellant's Superior Court complaint or filing some other motion that clearly registered appellee's objection to the claim-splitting, appellee merely filed a motion to stay the Superior Court proceedings pending the outcome of the federal court proceedings. I disagree with Judge WAGNER that appellee's motion to stay was tantamount to an objection to appellant's complaint based on the pendency of appellant's federal lawsuit. She cites no authority for that proposition. See post at 549-550. In fact, the cases she cites demonstrate that more than a motion to stay is required to preserve a res judicata defense when the plaintiff is "simultaneously maintaining separate actions." In Rennie v. Freeway Transport, supra, cited post at 549, the Supreme Court of Oregon held that the defendant had not acquiesced in the plaintiff's claim-splitting because the defendant had moved to dismiss or abate the state action — immediately after the plaintiff had filed his complaint in state court — on the basis of the plaintiff's pending federal court complaint. 294 Or. at 327-29, 656 P.2d at 924-25. Likewise, in Funkhouser v. Hurricane Fence Co., 524 S.W.2d 780, 782 (Tex.Civ.App. 1975), cited post at 35, a Texas court of appeals relied on cases cited in Annotation, Splitting Causes — Waiving Objection, 40 A.L.R.3d 108 (1971), in applying the RESTATEMENT rule. The Texas court concluded that, because the defendant had failed to file "a plea of another cause pending, or to move for consolidation, or in any manner to bring to the attention of the trial court and the plaintiff the fact that the defendant objected to the splitting of the cause of action," the defendant "ha[d] consented to the splitting of the cause of action." Id. at 783. See also Shaw v. Chell, 176 Ohio St. 375, 382, 199 N.E.2d 869, 874 (1964) (where plaintiff filed suit to recover personal damages while other suit to recover property damages arising from same accident was still pending, failure of defendant to object to either action on ground of other action pending amounted to implied consent to claim-splitting).

A motion to stay pending resolution of another proceeding may be filed for many reasons. For example, a party may acquiesce in a claim-splitting but may want to deal with the lawsuits one at a time. Or, the moving party may want to stay one action in the hopes of reaching a comprehensive settlement with the other party in the other action. In neither instance would the stay motion imply an objection to the existence of the stayed proceeding. In fact, the very idea of a stay is to defer, but affirm, the existence of the stayed action. While there are many reasons to file a motion to stay, there is only one reason to file an unambiguous "Objection Based on Other Action Pending" or a "Motion to Dismiss Due to Pendency of Other Action": to prevent successive litigation and preserve a res judicata defense. Appellee did not do so.

In this case, appellee does not disagree that appellant only split his claims to "cure" his complaint in federal court after the District defendants had filed a motion for summary judgment on the ground that appellant was required to bring his tort claim in Superior Court. It therefore is not surprising that appellee did not file an objection to appellant's Superior Court complaint; given appellee's motion in federal court, the Superior Court is precisely where appellee and the other District defendants wanted appellant to file his tort claim. Judge WAGNER's approach, however, ignores the reality of the case and, in effect, allows appellee to "sandbag" appellant in three easy steps: (1) appellee's (and the other District defendants') actions in federal court led appellant to drop his tort claim from his federal lawsuit and file it across the street in Superior Court; (2) appellee then filed a successful motion to stay the Superior Court suit pending resolution of the federal suit; (3) after winning summary judgment on appellant's constitutional claims, appellee then returned to Superior Court and filed a motion for summary judgment, arguing that appellant's failure to keep his pendent tort claim in his federal complaint, coupled with the federal court's summary judgment order, precluded appellant from litigating his tort claim in Superior Court.

Thus, far from "protect[ing] [appellee] from being harassed by repetitive actions based on the same claim," RESTATEMENT § 26, comment a, appellee's belated invocation of res judicata in this case — through astute procedural maneuvering — has unjustly prevented appellant from having any court hear his tort claim.

Accordingly, I conclude the trial court erred in granting appellee summary judgment on the basis of res judicata. Furthermore, I would expressly adopt the RESTATEMENT (SECOND) OF JUDGMENTS § 26 bright line rule on claim-splitting. Because appellee failed to file an objection at the time appellant split his claims, I conclude as a matter of law that appellee acquiesced in the claim-splitting, thereby waiving his res judicata defense. The judgment should be reversed and the case remanded for trial.