The opinion of the court was delivered by: LASKER
Drug Purchase, Inc. sues under 42 U.S.C. § 1983 for damages and injunctive relief for allegedly unconstitutional searches of its warehouse on four occasions by officials for the New York State Board of Pharmacy (Board). The defendants are the Board inspectors who conducted the searches, the Assistant Attorney General who allegedly directed the searches, and the Secretary and Chief Executive Officer of the Board.
Drug Purchase moves for summary judgment on the issue of liability. The defendants cross-move for summary judgment dismissing the complaint.
On November 6, 1975, Mitchell Dubroff, inspected the warehouse owned by Drug Purchase in the presence and with the consent of its employees. On November 7th, a quarantine of the drugs found in the warehouse was imposed by a New York State Supreme Court justice. The order of quarantine stated:
". . . LET the drugs which are the subject of this proceeding located in the basement premises 31 Washington Street, Brooklyn, New York, be placed under quarantine by the New York State Board of Pharmacy . . . and . . . LET . . . all persons upon whom this Order and the papers annexed hereto are served, be enjoined from removing or disposing of any of said drugs from that premises without further order of this Court."
On November 10th, 12th, 13th and 14th the Board inspectors reentered the warehouse without a warrant to take an inventory of the drugs under quarantine. Drug Purchase claims that these four entries were without its consent and violated its Fourth Amendment rights, giving rise to Section 1983 liability.
II. Collateral Estoppel and Res Judicata
The defendants argue that this action is barred by a decision of Judge Cannella dismissing the suit brought by Drug Purchase against the Board alone, for injunctive relief based on the same facts alleged here. Drug Purchase, Inc. v. New York State Board of Pharmacy, 76 Civ. 5845 (S.D.N.Y. April 10, 1978).
In that case, Judge Cannella held that "the complaint fails to allege the requisite "case or controversy' between the parties" because the possibility of continued inspections was too remote. Id. Slip op. at 6-7. He also ruled that comity and federalism militated against granting an injunction against the state agency. Id. at 8.
Defendants contend that because of the earlier decision this action is barred under principles of res judicata and collateral estoppel. Drug Purchase answers that a decision "clearly premised on the fact that the defendant . . . was the State agency and the Court's view that the causes of action asserted against the agency in that case did not merit injunctive relief"
does not bar an action brought against individuals for damages. Plaintiff's Memorandum in Support of Motion for Summary Judgment, p. 7.
Although the parties do not distinguish the two, res judicata and collateral estoppel are analytically distinct. Res judicata, or "claim preclusion," bars relitigation of a cause of action brought (or which might have been brought) in a prior action in which there has been a final judgment on the merits. Collateral estoppel, or "issue preclusion," applies when the second action is brought on a different cause of action, and renders a prior action conclusive as to issues actually or necessarily litigated. Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1232-33 (2d Cir.), cert. denied, 434 U.S. 903, 98 S. Ct. 300, 54 L. Ed. 2d 190 (1977); 1B Moore's Federal Practice P 0.405(1), at 621-25 (2d ed. 1974).
For res judicata to apply, the parties to the second action must be identical to or in privity with the parties to the first action. Expert Electric, Inc. v. Levine, supra, 554 F.2d 1227, 1233-34 (2d Cir.), cert. denied, 434 U.S. 903, 98 S. Ct. 300, 54 L. Ed. 2d 190 (1977); see Ellentuck v. Klein, 570 F.2d 414, 425-26 (2d Cir. 1978). The defendants here were not joined in the first action and the Board is not a defendant here. Moreover, the cause of action asserted against the individual officials is distinct from that asserted against the Board in the earlier case. Consequently, res judicata does not apply to bar this action. To hold otherwise would in effect create a ...