Opinion
Civil Action No. 3:98CV-647(R)
January 7, 1999.
MEMORANDUM OPINION ORDER
Currently before the Court is Defendant's motion to dismiss. For the reasons that follow, the motion is GRANTED, and this case is DISMISSED.
FACTS AND CLAIMS
The Complaint asserts a claim under 42 U.S.C. § 1983, alleging that the enforcement of named ordinances by Defendant violated Plaintiff's First and Fifth Amendment rights, as well as the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution. The substantive claims stated in the complaint are based on the following allegations:
(a) the Defendant has alleged that it has paid the holder of the solid waste collection franchise to collect solid waste for each household or business within Meade County regardless of the fact that a particular household or business had not availed itself of the service and had not paid the billing for such a service; Plaintiff believes that neither the Defendant, nor its agencies, have paid for such service and that the collection of such charges by Defendant without prepayment is in violation of the statutes authorizing and establishing solid waste collection by a county or political subdivision.
(b) Neither Defendant, nor its agencies, has budgeted funds for the operation of solid waste management/collection nor has it published such a budget; the preparation and adoption of a budget is a prerequisite for any governmental subdivision to function and it is failure to do so, is actions are ultra vires.
(c) The ordinance enacted by the Defendant related to the collection of solid waste provides for exemption for recycling, but does not allow a customer within the service area to elect to exempt itself when utilizing recycling facilities, or has adopted a usage which is not reduced to writing so that a member of the effected public would know what requirements must be met to exempt oneself from collection.
(d) Defendant has adopted an ordinance which allows the addition to annual property tax bills of any delinquency for solid waste collection charges, while Defendant has also adopted a policy that no such delinquencies shall be added to tax bills; the duly qualified and elected officials of Meade County have made it known that no payment of the property tax bill without payment of the delinquency, which is a separate and distinct charge upon the real property of the owner and a taking of property without due process in violation of constitutional guarantees, but in accordance with authority granted the Defendant by statutes of the Commonwealth of Kentucky, and the Plaintiff reserves the right to serve the Attorney General of Kentucky.
(e) The Defendant, its officers, agents and agencies, have utilized the courts to collect alleged delinquencies and the use of taxation to collect such delinquencies which have been reduced to judgment grants the Defendant accumulative relief which is a violation of the election of remedies principle of law; additionally, as the direct and proximate result of this action by Defendant, the Plaintiff, and others similarly situated, have suffered confiscation of their property to their damage and detriment in the sums to be determined.
(Complaint, dkt. # 1, § III)
Defendant moves to dismiss based on the doctrine of res judicata, or claim preclusion, asserting that Plaintiff had filed an action in the Meade Circuit Court in 1995 that included identical allegations to those made in the current suit. Plaintiff responds that this suit involves different issues because he did not make Constitutional claims in the 1995 state court action.
ARGUMENT
The Sixth Circuit has held that "[t]he doctrine of res judicata, or claim preclusion, provides that a final judgment on the merits of an action precludes the `parties or their privies from relitigating issues that were or could have been raised' in a prior action." Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995) (quoting Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424 (1981)). The preclusive effect of prior state court judgments implicates the Full Faith and Credit Clause of Article IV, section 1 of the United States Constitution and 28 U.S.C. § 1738, which requires "federal courts to give preclusive effect to the state-court judgments whenever the courts of the State from which the judgments emerged would do so." Haring v Prosise, 462 U.S. 306, 313 103 S.Ct. 2368 (1983) (quoting Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415 (1980)). "If the state courts would not give preclusive effect to the prior judgment, `the courts of the United States can accord it no greater efficacy' under § 1738." Haring, 462 U.S. at 313, 103 S.Ct. at 2373, n. 6 (quoting Union Planters Bank of Memphis v. Memphis, 189 U.S. 71, 23 S.Ct. 604, 606 (1903).
Therefore, the question becomes whether Kentucky courts would bar this suit under the doctrine of res judicata based on Plaintiff's 1995 state court action. The elements necessary to establish res judicata/claim preclusion under Kentucky law are well established:
First, there must be identity of parties. Second, there must be identity of the two causes of action. Third, the action must be decided upon its merits. In short, the rule of res adjudicata does not act as a bar if there are different issues or the questions of law presented are different. Likewise, it has long been recognized that a party may not split his cause of action, therefore, if a cause of action should have been presented and the party failed to do so and the matter should again arise in another action, it will be held that the first action was res adjudicata as to all causes that should have properly been presented . . .Consolidated Television Cable Service, Inc. v. City of Frankfort, 857 F.2d 354, 357 (6th Cir. 1988) (quoting Newman v. Newman, 451 S.W.2d 417, 419 (Ky. 1970)).
The Sixth Circuit has held that "Kentucky Courts and this Circuit define the doctrine of res judicata, also known as claim preclusion essentially the same. Consolidated Television Cable Service, Inc. v. City of Frankfort, 857 F.2d 354, 357 (6th Cir. 1988). The Sixth Circuit has recognized that "under res judicata, `a final judgment on the merits bars further claims by the parties on the same cause of action . . .' including `issues which could have been but were not litigated in the [prior] proceedings . . ." Consolidated Television, 857 F.2d at 357 (quoting Vinson v. Campbell County Fiscal Court, 820 F.2d 194, 197 (6th Cir. 1987)).
Kentucky courts have recognized that "res judicata applies not only to the points upon which the court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." Arnold v. K-Mart Corp., 747 S.W.2d 130, 132 (Ky.App. 1988) (quoting Hays v. Sturgill, 302 Ky. 31, 193 S.W.2d 648, 650 (Ky. 1946)).
The Kentucky Supreme Court has recognized that the rule is not so broad as to "foreclose all possible or potential claims against any known potential defendant not brought within the first litigation." Watts v. K, S, H, 957 S.W.2d 233, 238 (Ky. 1997). The Watts Court reasoned that a prior claim would not preclude a claim which had not yet ripened at the time the prior claim was brought, or are based on matters which are "not germane to, implied in or essentially connected with the actual issues in the [second] case although they may affect the ultimate rights of the parties and might have been presented in the former action." Id. at 237.
In the current case, Plaintiff agrees that there is "identity of the parties" in the two actions, but disputes that there is "identity of the causes of action." Plaintiff cites to Benboe v. Caroll, 625 F.2d 737 (6th Cir. 1980) which he asserts allowed review of a similar constitutional claim following a state court action.
In Benboe, the Sixth Circuit adopted the district court's opinion dismissing the claims of a professional bail-bondsman challenging the constitutionality of a Kentucky statute that abolished the commercial bail bond system. Benboe v. Carroll, 494 F. Supp. 462 (W.D. Ky. 1977) aff'd 625 F.2d 737 (6th Cir. 1980). The district court found that the Plaintiff had been a named party in two suits which had found the statute constitutional as well as a participant in another class action suit finding the same. The district court also found that while the suit included a constitutional issue that had not been raised in the prior suits, "it is apparent that it was an issue that easily could have been raised." Id. at 465. The district court only addressed the merits of the new claim in the alternative, stating "[e]ven if we assume, for purposes of argument, that the previous judgments do not bar the plaintiffs from raising the question in this action, it is obvious that plaintiffs have failed to state a cause of action" regarding the newly raised constitutional issue. Id.
While it is not clear whether the district court in Benboe dismissed the new claim solely on the grounds of res judicata or on its merits, the court granted the defendant's motion for attorney's fees, reasoning "it seems particularly appropriate to attempt some deterrents on litigants from relitigating time and time again questions which have been disposed of, either as to the individual or as to members of their class." Id. at 466.
In this case, Plaintiff bases his constitutional claims on identical factual allegations made in the 1995 state court action. The 1995 state complaint included seven "counts." The factual allegations in the current case are identical to Counts I, II, IV, and V of the 1995 complaint. It is unclear from the state action what legal theory plaintiff was asserting regarding most of these counts. However, one of those allegations, noted as III (d) above in the current complaint and as "Count IV" in the 1995 state court complaint (dkt. # 2, exhibit A at 2), states a claim under the United States Constitution.
All of the factual allegations made in this case were subject to an agreed judgment in the 1995 state action, which stated, inter alia, "Come the parties hereto, by counsel, and agree that the allegations contained in Counts II, III, IV, and VII, be, and they are hereby found without merit and judgment is entered in favor of the Defendant thereon and same shall be stricken from the complaint, barred and dismissed with prejudice." (dkt. # 2, exhibit B).
Given the identical factual allegations and the raising of at least one identical Constitutional issue in the 1995 state court action, a plaintiff exercising due diligence should have brought all constitutional claims based on the same factual allegations at that time. Clearly, the constitutional claims asserted in this suit would have been germane in the 1995 state court action. Therefore, this suit is barred by the doctrine of res judicata and must be dismissed.
THEREFORE, IT IS ORDERED:
Defendant's motion to dismiss (dkt. # 2) is GRANTED, and this action is DISMISSED.
This is a final and appealable order. There is no just cause for delay.