Motion-Secondary: JANE DOE, et al vs. DEBORAH HUG, et al

On January 16, 2013 a Motion-Secondary was filed involving a dispute between Doe, Jane, Doe, John, and Adoption Access Inc, Currie, Thomas E, Jr., Hug, Deborah, The Mizell Group Llc, for OTHER (CIVIL) in the District Court of Dallas County.

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Filed
13 June 25 P4:56
Gary Fitzsimmons
District Clerk
Dallas District
CAUSE NO. DC-13-00571

JANE DOE AND JOHN DOE, § IN THE DISTRICT COURT OF
§
Plaintiffs, §
§
vs. § DALLAS COUNTY, TEXAS
§
DEBORAH HUG, et. al §
§
Defendants. § 68th JUDICIAL DISTRICT

DEFENDANT DEBORAH HUG’S SUPPLEMENTAL BRIEF IN SUPPORT OF
TRCP 166a (i) NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Defendant, Deborah Hug and files this her Supplemental Brief on the

issues of non-suit and abandonment and would show as follows:

A. Non-Suit

1. Zurita v. Lambada 322 S.W. 3d 463 (Tex. App.—Ho [14th], 2010) is the strongest

authority on non-suit and res judicata. The Zuritas tried to avoid a res judicata application

contending that the claims in their first lawsuit were immature claims that only accrued post-

judgment and could therefore be asserted in a second suit despite having non-suited those claims

in the first suit. The Court held that the letter forming the basis of the claims in their second

lawsuit is the same letter alleged as the basis of his nearly identical claims in the original lawsuit.

The Court rejected appellant's contention that claims in second suit were not mature at time of

first suit when claims were almost identical to those raised and non-suited in first suit.

2. The touchstone of res judicata is “diligence.” In this case the Plaintiffs simply were not

diligent as that term is applied by the courts. The extent to which relief from res judicata is not

excused for lack of diligence is perhaps best articulated in Citizens Ins. Co. v. Daccach, 217

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S.W.3d 430 (Tex.2007) In Daccach a class representative argued res judicata should not apply

to claims he non-suited/abandoned because they were procedurally barred from litigation in the

class action and thus could not be “litigated through diligence” in that action. Id. at 451. The

Texas Supreme Court, however, refused to create such an exception (emphasis added) to the

general principles of res judicata. Id. at 455. Unlike in Daccach where the argument still failed,

in Doe I there was no procedural bar to pursuing alter ego and the failure to do so was a

conscious decision on the part of the Plaintiffs

3. In Weiman v. Addicks-Fairbanks Road Sand Co., 846 S.W.2d 414 the appellant

contended res judicata did not bar her claims in a second lawsuit because she was granted a non-

suit without prejudice on similar claims in the earlier lawsuit. Id. at 421. The court disagreed, and

held that the rules of procedure nevertheless applied and her claims in the second suit were

barred by the compulsory-counterclaim rule. Id. The court in Weiman clearly addressed how res

judicata applied to a non-suited claim, regardless of whether it was a main claim or a counter

claim:

The res judicata principle of merger prevents a successful plaintiff in a prior suit from
enforcing rights established by the prior judgment in a new suit rather than in an action
brought on the judgment. In other words all claims related to the subject matter of the
original cause of action are merged into the judgment and the cause of action is
extinguished. Jeanes v. Henderson, 688 S.W.2d 100, 103 (Tex.1985). The res judicata
principle of bar precludes an unsuccessful plaintiff from relitigating not only any matter
that was actually offered and received to sustain or defeat a claim or demand, but also
any other admissible matter which might have been offered for the purpose under the
exercise of due diligence. See Id.; see also 2 ROY W. MCDONALD, TEXAS CIVIL
PRACTICE IN DISTRICT AND COUNTY COURTS § 7.43 (rev.1982). In essence res
judicata, or claim preclusion, gives a plaintiff one bite at the cause of action apple.

The argument that “this is a counterclaim” and not a main claim has no merit. The court in

Weiman was clear that:

Res judicata, collateral estoppel, and compulsory counterclaim principles create several
mechanisms whereby a Weiman claim in Weiman II would be precluded by the Weiman

2
I action. First, the res judicata principle of merger would preclude Weiman from
renewing as a Weiman II cause of action a claim that was essentially the same cause of
action as in Weiman…Second, the res judicata principle of bar would preclude an
unsuccessful plaintiff in Weiman I from relitigating in Weiman II any claim or defense
related to the subject matter of Weiman I that was or should have been litigated there
with the exercise of due diligence.

4. The key is “due diligence.” The principle forms the backbone of not only the opinion in

Weiman, but is the basis of the seminal case of res judicata, Barr v. Resolution Trust

Corporation. Just as in Weiman, where the verdict held that Addicks-Fairbanks “take nothing”

as to Weiman, Weiman v. Addicks-Fairbanks Road Sand Co., 846 S.W.2d 414, 418, the Plaintiff

in Doe I was unsuccessful as against Hug wherein the judgment had the identical finding of “take

nothing.” Just like in Weiman, the Plaintiff in Doe I had a claim that it relinquished. Whether

one characterizes the dropping of the alter ego claim as a “non-suit” or “abandonment” the

principle is identical. With due diligence the Plaintiff could have pursed the alter ego and did

not. The argument that somehow the alter ego in Doe II is “different, or derivative” likewise

fails. The Court in Weiman, citing to Barr v. Resolution Trust stated clearly:

Weiman would have us apply the "elements of proof" test used in Astro Sign Co. v.
Sullivan, 518 S.W.2d 420 (Tex.App.--Corpus Christi 1974, writ ref'd n.r.e.), but Barr
disapproved of this approach saying:
Every theory of recovery has its unique elements of proof. [O]nly slight variations
of the facts to support different theories of the same incident can result in a court
finding different causes of action, thus thwarting the purposes of res judicata
Barr, 837 S.W.2d at 630.
B. Abandonment

5. Daccach not only demonstrates the res judicata effect of a non-suit, but it provides an

excellent segue into the notion of abandonment. Res judicata bars claims a party filed but failed

to diligently pursue whether non-suited or voluntarily abandoned. If,as Defendant argues, the

Plaintiffs’ actions in dropping their alter ego in Doe I is characterized as an “abandonment” as

opposed to a “non-suit,” their actions in Doe I still afford them no relief from the application of

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res judicata. Res judicata works to prohibit re-litigation of “abandoned” causes of action as well

as those that have been non-suited, Castro v. Arkansas-Louisiana Gas Co. 597 F.2d 1323, 1326

(10th Cir. 1979) [Appendix 1]

6. The language in Castro is a clear indictment against what has essentially transpired in

this case:

Whether a plaintiff drops a claim in silence as a trial tactic or in hope of greater recovery
in two suits than in one, the facts of the present case constitute a strong argument against
multiple actions by a single plaintiff 2 for different items of damage arising from a single
wrong. Whether one plaintiff plus one event can always equal one trial, it can at least be
said that a plaintiff who calls into play the massive machinery of a federal court, with a
complaint containing two claims arising from a single event, owes a duty to act
definitively with respect to both claims. The silent setting aside of one claim, with a
secret intent to later institute a repeated exercise of the judicial process, violates not only
the interest of the defendant in meeting all claims against him in a single action, but the
interests of other litigants waiting in line at the courthouse door, and the interests of
taxpayers paying the costs of conducting the judicial process twice when once would do.
Casto, 597 F.2d at 1324-25.

The Court went on to state that no matter how Castro couched the relinquishment of his claim in

the first suit, the result is the same. Whether abandoned as an “action,” abandoned as a “cause of

action,” or “split a cause of action,” the distinction is irrelevant. The Plaintiff had placed his

claim…at issue and then simply dropped it, taking no steps to preserve it.That circumstance

prompted the lower Court in Castro to say:

The abandonment of a cause of action may be implied from a plaintiff's acts, or from his
omissions. In either event, the effect thereof (absent proper reservation of the claim by
way of, for example, Rule 15 or Rule 41, Fed.R.Civ.P.) is that the cause of action is
extinguished and any subsequent suit thereon precluded. See, generally, Murphy v.
Benson, 270 F.2d 419 (2d Cir. 1959), cert. denied, 362 U.S. 929, 80 S.Ct. 750, 4 L.Ed.2d
747 (1960); Union Oil Co. of Calif. v. Hunt, 111 F.2d 269 (9th Cir. 1940). See also
Jehovah's Witnesses v. King County Hosp., 278 F.Supp. 488, 498 (W.D.Wash.1967),
aff'd per curiam, 390 U.S. 598, 88 S.Ct. 1260, 20 L.Ed.2d 158 (1968). Castro, 597 F. 2d
at 1325

4
7. The federal court in Clark v. Yosemite Community College Dist., 785 F. 2d 781, 786 (10th

Cir, 1986) [Appendix 2], citing Castro, addressed res judicata where a cause of action should

have been litigated in a state court proceeding and after judgment was subsequently re-filed in a

federal court. Having apparently abandoned a cause of action in the state proceeding, Clark was

barred from could raising it again in a federal action, Clark 785 F. 2d 781, 786, (citing Castro

for the proposition that where plaintiff includes multiple claims in suit, and drops one claim in

silence, he may not, after judgment in that suit, maintain a separate suit on that dropped claim).

8. The federal cases, specifically Castro have been cited as authority in Texas (see Jordan v.

Bustamante 158 S.W. 3d 29 (Tex. 2005)) where the Court cited to Castro, but under the facts in

Jordan held it did not apply. More important, not only are the federal cases cited as authority in

Texas, but the same principles of abandonment and the application of res judicata set out in the

federal cases of Castro and Clark are specifically followed in Texas. In Texas, just as in the

federal circuits, abandoning a cause of action has a res judicata effect.

9. In Jones v. Nightingale, 900 S.W. 2d 87,90 (Tex.App.-San Antonio 1995, writ ref'd) the

plaintiff brought claims for negligence and breach of contract, but abandoned (pursuant to Rule

165) her breach of contract claim the day after the trial began. Id. at 88. The jury found no

negligence and judgment was entered and became final. Id. Thereafter, the plaintiff sent a letter

to the defendant threatening litigation over the previously abandoned breach of contract claim.

Id. Rejecting the plaintiff's argument that her contract claim was not barred by res judicata

because she had expressly and properly excluded it when she abandoned it pursuant to Rule 165,

the San Antonio Court of Appeals explained that the plaintiff sought to recover for injuries

stemming from a single occurrence under negligence and contract theories. Id. at 89. The Court

in Jones stated:

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In the case before us, under both a negligence theory and a contract theory, Jones sought
to recover for injuries stemming from a single occurrence, namely, the knee injury she
suffered on returning a mare to the barn. Whether she sought recovery on a theory of
negligence or contract, the central issue was the right to recover medical bills incurred as
the result of one on-the-job accident. Under either theory, the facts regarding her injury
involved her employment with Dr. Nightingale, the single injury, her medical condition,
and her medical special damages. Thus, her claims arose from facts that were related in
time, space, origin, and motivation. Moreover, the litigation of her alternate causes of
action in negligence and contract would have formed a "convenient trial unit" and would
have conformed to the "parties' expectations." Indeed, Jones's Second Amended
Original Petition, in which she relied on both theories, indicates that she considered
the two causes of action to be a "trial unit" and demonstrated her "expectations" to
recover for her injuries under either of the claims (Emphasis Added) Id, at 90.

The parallels between Doe I and Jones are blatantly obvious. In Doe I Plaintiffs pled breach of

contract, negligence, fraud etc., in addition to a claim for alter ego. All claims and theories of

recovery were a “convenient trial unit” and by filing them all that way the Plaintiff so

acknowledged. Lest the Court forget, the Plaintiff also dropped a negligent entrustment claim as

well, and there would be no thought of now allowing that claim to be brought back in the face of

a res judicata defense (see Exhibits 1 & 3 to Defendant’s MSJ).

10. The Court in Jones observed that In Barr, the court expressly noted that procedural rules

such as those allowing discovery, alternative pleadings, and trial amendments to add new

theories of recovery "obviate the need to give parties two bites at the apple." Barr at 631. The

Court held that Jones's assertion that “Rule 165 allowed her to bring a second suit to recover for

a previously litigated injury turns the court's observation on its head. We cannot find a case, nor

does Jones cite one, that interprets Rule 165 as permitting a party to pursue the same recovery for

the same injury in successive trials based on differing theories of recovery.”

11. The Court in Jones also closed the door on any argument the Plaintiffs might make that

Weiman v. Addicks-Fairbanks somehow affords them relief from the application of res judicata:

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Jones relies on Weiman v. Addicks-Fairbanks Road Sand Co., 846 S.W.2d 414
(Tex.App.-- Houston [14th Dist.] 1992, writ denied), in which the court stated: "A
party is not barred from litigating claims in a subsequent suit merely because he
voluntarily withdrew those claims from an earlier suit, unless the withdrawal was with
prejudice." Id. at 421. The court went on to say, however, that such claims are still
subject to the rules of procedure. The court then found the appellant's claims, which had
been nonsuited without prejudice, were nonetheless barred by the compulsory
counterclaim rule. Id. The same principle applies here. Voluntarily withdrawn claims are
still subject to the doctrine of res judicata. In Barr, the supreme court drew a parallel
between res judicata and compulsory counterclaims, stating: The definition of res judicata
... is substantially similar to the rule of compulsory counterclaims embodied in the rules
of civil procedure. A party defending a claim must bring as a counterclaim any claim that
"arises out of the transaction or occurrence that is the subject matter of the opposing
party's claim...." TEX.R.CIV.P. 97. Barr, 837 S.W.2d at 630.

12. In this case the Plaintiff amended its claims in the face of a summary judgment challenge

after the deadline to amend had passed and did not include the alter ego claim. Whether that

omission is deemed a non-suit or an abandonment of its claim, the res judicata effect is the same.

Plaintiffs chose to sue Adoption Access and Hug in Doe I, abandoned an alter ego claim that was

a proper part of that suit, and now are barred from re-litigating that claim on the grounds they

have “new facts.”

WHEREFORE PREMISES CONSIDERED, Defendant’s Motion should be in all things

granted and the Plaintiffs’ claim based on alter ego should be dismissed with prejudice.

Respectfully Submitted,

/S/ Mark A. Weitz__________
Mark A. Weitz
SB# 21116500
Weitz Morgan PLLC
100 Congress Avenue, Suite 2000
Austin, Texas 78701
512-394-8950
512-852-4446 (facsimile)

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CERTIFICATE OF SERVICE

The undersigned does hereby certify that a true and correct copy of the foregoing
Defendant Deborah Hug’s Motion for Partial Summary Judgment was served upon the following
parties on June 25, 2013 by electronic service and/or facsimile transmission and/or first class
mail:

Mark L. Johansen
Christopher J. Simmons
Gruber Hurst Johansen Hail & Shank, L.L.P.
1445 Ross Avenue, Suite 2500
Dallas, Texas 75202
Attorneys for the Plaintiffs

Ryan Geddie
Martin, Disiere, Jefferson & Wisdom L.L.P.
Tollway Plaza One
16000 N. Dallas Parkway
Dallas, Texas 75248
Attorney for The Mizzel Group LLC d/b/a Tegan Digital

Thomas Currie
5906 Norway
Dallas, Texas 75230
Pro Se

/S/ Mark A.Weitz______________
Mark A. Weitz

8
Casto v. Arkansas-Louisiana Gas Co., 597 F.2d 1323 (C.A.10 (Okl.), 1979)

Page 1323
597 F.2d 1323
Charles CASTO, Plaintiff-Appellant,
v.
The ARKANSAS-LOUISIANA GAS COMPANY, a Delaware Corporation,
Defendant-Appellee.
No. 77-1732.
United States Court of Appeals,
Tenth Circuit.
Argued March 12, 1979.
Decided May 4, 1979.

Page 1324

Owen L. Oliver, Arvada, Colo. (John M. motion, viewing Casto as having abandoned his
Merritt and D. Chad Ransdell, Oklahoma City, cause of action for loss of consortium.
Okl., on brief), for plaintiff-appellant.
Issue
Donald R. Wilson of Fenton, Fenton,
Smith, Reneau & Moon, Oklahoma City, Okl., Whether the district court erred in
for defendant-appellee. dismissing the complaint.

Before McWILLIAMS and DOYLE, OPINION
Circuit Judges, and MARKEY, * Chief Judge.
In the present case, a single event a gas
MARKEY, Chief Judge. explosion occurred. Casto sued for damage to
his property and for loss of consortium. In the
Casto appeals from a judgment dismissing pretrial order, proffered in lieu of the pleadings,
his complaint for loss of his wife's consortium. he dropped his claim for loss of consortium. In
We affirm. his brief here, Casto tells us that he

Facts elected not to proceed in that prior action for
(loss of consortium) for the reason that certain
Following a gas explosion in their Lamont, evidence which would be presented in his cause
Oklahoma home, Casto joined Peggy, his wife, of action (to wit: the mental depression he
in suing the Arkansas-Louisiana Gas Company suffered) would be detrimental to Peggy's claim
(Arkla) in July, 1975, claiming $600,000 in for her injuries.
damages for Peggy's injuries, $20,000 for loss of
their joint property, and $200,000 for Casto's Casto does not explain, nor do we readily
loss of consortium. When a pretrial order was see, how his mental depression could in any way
signed, Casto elected not to proceed on his claim affect the factual determination of either the
for loss of consortium. On March 30, 1976, the cause or extent of Peggy's injuries. If itcould,
jury awarded Peggy $100,000 and Casto and we are at painful loss to understand how the
Peggy $10,000. Arkla paid the awards with judicial system is aided by Casto's hiding the
interest on May 18, 1977. Casto filed the present fact from the jury and setting aside his mental
complaint on April 15, 1977, seeking $250,000 depression for a second exercise of the judicial
1
for loss of consortium and $1,000,000 in process. Whether a plaintiff drops a claim in
punitive damages. Arkla moved to dismiss, silence as a trial tactic or in hope of greater
saying Casto had split his cause of action. On recovery in two suits than in one, the facts of the
June 25, 1977, Judge Eubanks granted the present case constitute a strong argument against

-1-
Casto v. Arkansas-Louisiana Gas Co., 597 F.2d 1323 (C.A.10 (Okl.), 1979)

2
multiple actions by a single plaintiff for extinguished and any subsequent suit thereon
different items of damage arising precluded. See, generally, Murphy v. Benson,
270 F.2d 419 (2d Cir. 1959), cert. denied, 362
U.S. 929, 80 S.Ct. 750, 4 L.Ed.2d 747 (1960);
Union Oil Co. of Calif. v. Hunt, 111 F.2d 269
Page 1325
(9th Cir. 1940). See also Jehovah's Witnesses v.
from a single wrong. Whether one plaintiff plus King County Hosp., 278 F.Supp. 488, 498
one event can always equal one trial,it can at (W.D.Wash.1967), aff'd per curiam, 390 U.S.
least be said that a plaintiff who calls into play 598, 88 S.Ct. 1260, 20 L.Ed.2d 158 (1968).
the massive machinery of a federal court, with a (Footnote omitted)
complaint containing two claims arising from a In support of his argument (2), Casto cites
single event, owes a duty to act definitively with sixteen decisions of state courts in twelve states.
respect to both claims. The silent setting aside of Conspicuously absent is a single citation from a
one claim, with a secret intent to later institute a court of Oklahoma, whose state law we must
repeated exercise of the judicial process, violates
apply. Casto attempts to distinguish one of many
not only the interest of the defendant in meeting Oklahoma decisions relied on by defendant, i. e.,
all claims against him in a single action, but the Lowder v. Oklahoma Farm Bureau Mutual
interests of other litigants waiting in line at the Insurance Company, Okl., 436 P.2d 654 (1967),
courthouse door, and the interests of taxpayers 4
(holding that claims for injury to property and
paying the costs of conducting the judicial for personal injury arising from a single tort
process twice when once would do. were not separate causes) on the ground that we
Against the injury to all those interests, here deal with claims for injury to property and
5
Casto argues that (1) abandonment applies only for loss of consortium. In the present context,
to actions, not causes of action, (2) his causes of we are unable to discern a determinative
action for injury to his property and for loss of distinction in that difference.
consortium are separate and distinct, and (3) the In contention (3), seeking an exception to
present facts require an exception to the rule that the rule against splitting causes of action arising
all causes of action arising from a single wrong from a single tort, Casto cites his sole Oklahoma
should be brought in a single action. 3 case, Smittle v. Eberle, Okl., 353 P.2d 121
Because a judgment may be affirmed on (1960). But in that case, there were two
any ground arising from the record, Jaffke v. plaintiffs, the court recognizing that the parents
Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 1 sued as "next friends" of their children, on a
L.Ed.2d 314 (1957), and because the result is the cause of action for the children's injuries, and in
same whether Casto be viewed as having their own names on another cause of action for
abandoned an action, abandoned a cause of their loss of
action, or split a cause of action, Casto's
argument (1) is irrelevant. Judge Eubanks
correctly noted that Casto had placed his claim Page 1326
for loss of consortium at issue and then simply
dropped it,taking no steps to preserve it.That the children's services. Thus Smittle is not
circumstance prompted the district court to say: inconsistent with long lines of federal court
decisions such as Bethlehem Steel Corp. v.
The abandonment of a cause of action may be Holmes, 322 F.Supp. 711 (N.D.Okl.1971);
implied from a plaintiff's acts, or from his Barnhart v. International Harvester Company,
omissions. In either event, the effect thereof 309 F.Supp. 206 (N.D.Okl.1970); Public Service
(absent proper reservation of the claim by way Company of Oklahoma v. Crane Company, 48
of, for example, Rule 15 or Rule 41, F.R.D. 424 (N.D.Okl.1969), Aff'd, 467 F.2d
Fed.R.Civ.P.) is that the cause of action is 1143 (10th Cir. 1972); and Sharrock v. Perkins,

-2-
Casto v. Arkansas-Louisiana Gas Co., 597 F.2d 1323 (C.A.10 (Okl.), 1979)

297 F.Supp. 1285, 1286-87, (W.D.Okl.1969), is the same when the courthouse door is jammed by
where it was said: those who need not be there.

It is the rule in Oklahoma that a single cause of This case also illustratesthe clash between the
action may not be split and a tort feasor has a lawyer's twin duties of advocating a client's interest
and avoiding manipulation of the judicial process.
right to be proceeded against in a single action
Though often difficult,even seemingly on occasion
by an injured party for a single wrong or tort * * impossible, the fine measuring of his roles as
*; advocate and court officer is one of the gleaming
gems in the professional counselor's crown. If the
and state court decisions such as Lowder v. judicial process is to function as a free flowing
Oklahoma Farm Bureau Mutual Insurance fountainhead of justice, itmust be respected and
Company, supra; Hugh Breeding, Inc. v. protected, not just used.
Godwin, 208 Okl. 617, 258 P.2d 157 (1953);
Stanley v. Sweet, 202 Okl. 448, 214 P.2d 906 The concern is not to make the careful, contemplative
(1950); and Akin v. Bonfils, 67 Okl. 123, 169 P. conduct of the judge's job easier, but to make it
899 (1917). possible.

2 Casto repeatedly refers in his brief, a large portion
Casto last argues that because a husband
of which is identicalwith that filed below, to the
and wife may sue separately for his loss of irrelevant contention that Peggy's claim for her
consortium and her injuries, and one must join injuries and his claim for loss of consortium are
the other in a claim for injury to their joint separate causes of action.
property, it would be unjust to force joinder of
their separate claims. We need not consider that 3 Casto nowhere asserts that he did not have full and
broad question. Our simple holding is that fair opportunity to litigatehis claim for loss of
where, as here, a plaintiff joins in a suit, includes consortium, or that he was by any one denied his
multiple claims for his damages from the single "day in court" on that claim.
tort on which the suit is based, and in silence 4 The case is not listed in the Index of Authorities in
drops one claim, he may not, after judgment in Casto's brief.
that suit, maintain a separate second suit on that
dropped claim. 5 Casto, whose brief cites seventeen state court cases
and not a single federal court case, also asserts that
The judgment of the district court is Lowder should be ignored because "State court
affirmed. decisions are not binding," contending, without
citation of authority, that the questions here are
--------------- procedural. Not only is the characterization non-
governing, Guaranty Trust Co. v. York, 326 U.S. 99,
* Honorable Howard T. Markey, Chief Judge, United 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), but federal
States Court of Customs and Patent Appeals, sitting court decisions compel the Lowder Result. As this
by designation. court said in United States v. Sinclair Refining
Company, 126 F.2d 827, 831 (10th Cir. 1942):
1 This diversity action is one of 172,000 suits filed
before 373 active district judges in 1977. No A plaintiff cannot split up his claim or demand and
responsible person wants to slam the door against prosecute it in piecemeal fashion by separate suits.
those who must use the federal courts. But the effect

-3-
Clark v. Yosemite Community College Dist., 785 F.2d 781 (C.A.9 (Cal.), 1986)

Page 781
785 F.2d 781
39 Empl. Prac. Dec. P 35,970, 31 Ed. Law Rep. 24
Donald Gilbert CLARK, Plaintiff-Appellant,
v.
YOSEMITE COMMUNITY COLLEGE DISTRICT, Kenneth N. Griffin,
Louis Zellers, Jack McArthur, Larry Roskens, Richard
Peralta, Thomas VanGroningen, Robert Cardoza, Dr. Grant E.
Bare, Glenda S. Alpers, Ian W. Hardie, Carmen Jackson, Nancy
Rosasco, Allister A. Allen, and Does 1 through 30,
inclusive, Defendants-Appellees.
No. 85-1801.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Dec. 11, 1985.
Decided March 25, 1986.

Page 783

Martin T. Snyder, Sellar, Hazard, Snyder & I
Kelly, Walnut Creek, Cal., for plaintiff-
appellant. BACKGROUND

C. Carol Stevens, Whitmore & Kay, Palo Donald Gilbert Clark is employed as an
Alto, Cal., for defendants-appellees. instructor in the criminal justice training center
located at Modesto Junior College, a campus in
Appeal From the United States District the Yosemite Valley Community College
Court for the Eastern District of California. District ("College"). In January of 1981, the
College received numerous complaints that
Before WRIGHT, KENNEDY and Clark was engaging in sexual harassment of and
BEEZER, Circuit Judges. discrimination against female trainees at the
center. Information concerning the charges was
BEEZER, Circuit Judge: entered into Clark's personnel file. In addition,
A college instructor brings this section Clark alleges he was reassigned to teach
1983 suit against the college and various college different classes; his class schedule was changed
officials seeking an injunction and damages for every semester, with little or no notice, allowing
interference with his teaching responsibilities. him little time to prepare; and his teaching load
He alleges that such interference is in reprisal was reduced. Clark also alleges College officials
for his criticism of the college's instructional discouraged third parties from contracting his
program. The district court found that the services as a private instructor, and caused the
instructor had raised a cause of action involving publication in community newspapers of
interference with his teaching duties in a defamatory accusations against him.
previous state court proceeding for a writ of Clark contends that the interference with
mandate against the college and its officials. The his teaching duties, the inclusion of the
district court granted the college's motion for derogatory information in his personnel file, and
judgment on the pleadings, ruling that the the other alleged incidents constituted retaliation
section 1983 claim was precluded by res against him for his criticism of the College's
judicata. We affirm in part and reverse in part. administration of the criminal justice training

-1-
Clark v. Yosemite Community College Dist., 785 F.2d 781 (C.A.9 (Cal.), 1986)

center, including his cooperation with a grand A. Application of Res Judicata (Claim
jury investigation of the program. Preclusion)

In April, 1982, Clark filed a petition for a When a state court judgment isthe source
writ of mandate in a California trial court. In his of the supposed res judicata (claim preclusion),
petition, motion, and supporting memoranda, 28 U.S.C. Sec. 1738 provides that a federal court
Clark alleged defamation, denial of a hearing on must give the state court judgment the same full
the charges of misconduct, interference with faith and credit as it would be

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Motion-Secondary: JANE DOE, et al vs. DEBORAH HUG, et al

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