bars "not only those issues that the parties actually litigated, but also any issue which the parties could have raised in the prior action.") Bloomquist had, in the Bloomquist I action, a full and fair opportunity to select and present her legal theories, and to fully litigate her case; however, she presented only claims of libel and infliction of emotional distress in the first action.
Additionally, Bloomquist suggests, incorrectly, that she could not pursue her Title VII action in state court, which is where Bloomquist I was originally filed, as her Title VII claim could have been brought in state court. See Yellow Freight System, Inc. v. Donnelly 494 U.S. 820, 108 L. Ed. 2d 834, 110 S. Ct. 1566 (1990) (a Title VII claim can be advanced in a state court suit, as state courts exercise concurrent jurisdiction with federal courts over such claims). As sovereign immunity is no defense to a claim based on Title VII, Bloomquist nevertheless could have obtained full and fair consideration of her complaint if she had joined her Title VII claim to her state claims. See Flores, supra, at 777-778 n.5. Therefore, as the claims of employment discrimination attempted to be raised in Bloomquist II could have been raised in the earlier action and arise out of the same core of operative facts, they must be held barred by res judicata. See Grubb, supra, at 479; Spiegel v. Continental Illinois National Bank, 790 F.2d 638, 645-646 (7th Cir. 1986). As the Court in Grubb stated, "[litigants] must abide by the rule that a judgment upon the merits in one suit is res judicata in another where the parties and subject matter are the same, not only as respects matters actually presented to sustain or defeat the right asserted, but also as respects any other available matter which might have been presented to that end." Grubb, supra, at 479.
In assessing the preclusive effect of a prior judgment for res judicata purposes, the court must also determine whether the earlier determination constituted a final judgment on the merits of the case, and whether the case was brought before a court of competent jurisdiction. Harborside Refrigerated Services, Inc. v. Vogel, 959 F.2d 368, 372 (2d Cir. 1992); In re Teltronics Services, Inc., 762 F.2d 185, 190 (2d Cir. 1985). The court notes that Bloomquist does not suggest that the judgment rendered by Judge Skretny on March 31, 1992 in the Bloomquist I action, and entered on April 2, 1992, was not final.
Bloomquist contends, rather, that the judgment in Bloomquist I did not constitute a decision on the merits of the case. See Plaintiff's Responsive Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, filed July 18, 1994, at pp. 1-8. However, a judgment on the merits for purposes of res judicata is not necessarily a judgment based upon a trial of contested facts; it may, for example, be a default judgment, a judgment on stipulation or agreement, or on a motion for summary judgment. See 1B Moore's Federal Practice at P 0.409[1.-2].
The Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, provides sovereign immunity to the federal government for claims arising from libel, slander, misrepresentation and deceit. 28 U.S.C. § 2680(h). A dismissal based on sovereign immunity is a decision on the merits, as it determines that a party has no cause of action or substantive right to recover against the United States. See Flores, supra, at 775 n. 3 (dismissal of state action on sovereign immunity bars subsequent federal civil rights action); Beaver v. Bridwell, 598 F. Supp. 90, 93 (D.Md. 1984) (state court dismissal of common law tort action on sovereign immunity bars subsequent Section 1983 action in federal court); Warwick Corp. v. Maryland Department of Transportation, 573 F. Supp. 1011, 1014 (D.Md. 1983) (state court dismissal of common law tort action on sovereign immunity bars subsequent Section 1983 action in federal court). See also Magnus Electronics, Inc. v. La Republica Argentina, 830 F.2d 1396 (7th Cir. 1987) ("the underlying policy of res judicata is not restricted to a valid judgment that deals solely with the merits; it extends to and includes matters in abatements, such as jurisdiction over subject matter...") (citing 1B Moore's Federal Practice P 0.405 at 223); J.C. Driskill, Inc. v. Abdnor, 901 F.2d 383, n.4 (4th Cir. 1990) ("waiver of sovereign immunity is a jurisdictional prerequisite in the nature of, but not the same as, subject matter jurisdiction, in that unless sovereign immunity is waived, there may be no consideration of the subject matter").
Bloomquist argues that the district court's dismissal of her tort claim was based on a lack of subject matter jurisdiction, and thus, the merits of the case were never reached. However, Judge Skretny's decision was based on his determination that sovereign immunity precluded the federal government from being liable for claims which fall under the Federal Tort Claims Act. Therefore, the dismissal of Bloomquist I was based on Judge Skretny's finding that the United States was immune from suit, rather than a determination based on procedure or form.
A determination which was destructive of Bloomquist's cause of action and indicated that Bloomquist failed to state a claim under federal law is clearly a judgment on the merits and not for lack of jurisdiction. See Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946); Weston Funding Corp. v. Lafayette Towers, Inc., 550 F.2d 710, 715 (2d Cir. 1977). As stated by Justice Black:
Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946) (emphasis added).
See also The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913) ("Jurisdiction is authority to decide the case either way.") (Holmes, J.).
Further, in Weston, the Second Circuit considered, in determining whether the dismissal by the district court was on the merits, whether the first court's reason for dismissing the claim was that the plaintiff had no cause of action. Weston Funding Corp., supra, at 713. The court stated that, unlike jurisdictional statutes, the intended effect of the state statute involved in the case, precluding access to the court by unlicensed real estate agents, was not to create a precondition to the suit, but to completely void the underlying cause of action. Weston Funding Corp., supra, at 714. As the court in Weston stated, "'it is well settled that the failure to state a proper cause of action calls for a judgment on the merits.'" Weston Funding Corp., supra (citing Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946)). Relying on Fed.R.Civ.P. 41(b), the court affirmed the summary judgment in favor of defendant on the ground that the prior dismissal of Plaintiff's original action based on Plaintiff's disqualification to sue in New Jersey under state law, was a prior adjudication on the merits and barred, as res judicata, subsequent suits on different claims. The Second Circuit noted that amendments to Rule 41 had greatly expanded the grounds for dismissal that, under the rule, would constitute judgment on the merits. Weston, supra, at 713. Rule 41(b) provides that when the court provides in its order otherwise any dismissal other than one for lack of jurisdiction, improper venue, or failure to join an indispensible party "operates as an adjudication on the merits." Fed.R.Civ.P. 41(b). As Judge Skretny's order did not preserve any right by Plaintiff to file any further claims relating to the same core of facts upon which that action was based, it is clear that the dismissal bars the instant action (Bloomquist II). As the court in Weston stated, "the Supreme Court has made clear that it is a misconception of res judicata to assume that the doctrine does not come into operation if a court has not passed on the 'merits' in the sense of the ultimate substantive issues of a litigation." Weston, supra, at 714 (quoting Angel v. Bullington, 330 U.S. 183, 190, 91 L. Ed. 832, 67 S. Ct. 657 (1947).)
Accordingly, the dismissal of the Bloomquist I action based on sovereign immunity constituted a decision on the merits, rather than a dismissal for lack of jurisdiction.
Bloomquist also asserts that the judgment in Bloomquist I was not granted by a court of competent jurisdiction since her initial action was brought in state court and her employment discrimination claim could not have been maintained there. See Plaintiff's Responsive Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, filed July 18, 1994, at p. 10. As discussed, this is an incorrect statement. See supra, at p. 14. Regardless of this fact, once Bloomquist was aware that the Defendant intended to remove the action, she could have asserted her employment discrimination claims in this court by filing a motion to amend her complaint, and subsequently requesting a stay of the proceedings pending the outcome of the administrative action. Defendant's motion to dismiss was filed on March 29, 1991. As oral argument on the motion occurred on May 20, 1991, and the court's decision was not rendered until March 31, 1992, Bloomquist had sufficient time, prior to any decision, to present her alternative federal claims for recovery. See Defendant's Reply and Response Memorandum of Law, filed August 10, 1994, at p. 8.
The federal court was competent to hear both Bloomquist's tort and employment discrimination actions. Only federal courts have jurisdiction over cases involving the federal government as a party, therefore, Bloomquist I was properly before Judge Skretny, as the case involved a tort-based cause of action against the United States. 28 U.S.C. §§ 2671-2680. Further, Judge Skretny made a decision on the merits of Bloomquist's tort claims, which led to the dismissal of the case as the court found that the federal government was immune from suit as to Bloomquist's particular tort claims under the Federal Tort Claims Act. Thus, Judge Skretny had jurisdiction over Bloomquist's original tort action and the court was a court of competent jurisdiction. Therefore, as the decision on Bloomquist's tort claim was made in a court of competent jurisdiction, it is a predicate decision for res judicata purposes and may, as here, bar a subsequent action.
As a final judgment on the merits was rendered by a court of competent jurisdiction in Bloomquist I, and the same parties or their privies were involved in both Bloomquist I and Bloomquist II, the court finds that res judicata is a complete bar to Bloomquist II as it is based upon the same set of operative facts as Bloomquist I. Therefore, for purposes of judicial economy, fairness to the litigants and the strong public interest favoring finality in judicial proceedings and against piecemeal litigation, this case should be dismissed.
Based on the foregoing discussion, Defendant's motion for summary judgment should be GRANTED.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: March 10th, 1995
Buffalo, New York
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 30(a).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendant.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: March 10, 1995
Buffalo, New York