Opinion · Court of Appeals for the Fifth Circuit
Joe Boone and Mary Alice Boone v. Jerome Kurtz, Commissioner of Internal Revenue and David C. Loesel
Joe Boone & Mary Alice Boone v. Jerome Kurtz, Comm’r of Internal Revenue & David C. Loesel, 617 F.2d 435 (5th Cir. 1980)
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 1980-05-23
- Topic
- general
finding that the district court properly raised res judicata sua sponte where claims were nearly identical to claims previously litigated before the same court | holding 5 that dismissal of a complaint for lack of jurisdiction “adjudicate[s] the court’s jurisdiction, and a 6 second complaint cannot command a second consideration of the same jurisdictional claims.” | dismissal of complaint for lack of jurisdiction bars later “almost identical” complaint | “Dismissal by the court sua sponte on res judicata grounds, however, is permissible in the interest of judicial economy where both actions were brought before the same court.” | “Dismissal by the court sua sponte on res judicata grounds, however, is permissible in the interest of judicial economy where both actions were brought before the same court.” | “Dismissal by the court sua sponte on res judicata grounds . . . is permissible in the interest of judicial economy where both actions were brought before the same court.” | “Dismissal by the court sua sponte on res judicata grounds . . . is permissible in the interest of judicial economy where both actions were brought before the same court.” | “[Ejven though Fed.R.Civ.P. 8(c) denominates res judicata as an affirmative defense[,j [dismissal by the court sua sponte on res judicata grounds ... is permissible in the interest of judicial economy where both actions were brought before the same court” | "(E)ven though Fed.R.Civ.P. 8(c) denominates res judicata as an affirmative defense(,) (d)ismissal by the court sua sponte on res judicata grounds ... is permissible in the interest of judicial economy where both actions were brought before the same court"
Citator
- Cited by
- 49 opinions
Denver L. Rampey, Jr., U.S. Atty., Macon, Ga., M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Chief, App. Sec., Jonathan S. Cohen, Francis J. Gould, Tax Div., Dept. of Justice, Washington, D.C., for defendants-appellees.
[2] Several months earlier, they had filed a complaint which they concede was "almost identical" to the one before the district court. The court dismissed the earlier complaint for lack of jurisdiction, and the order of dismissal was not appealed.
[3] The prior "almost identical" complaint having been dismissed for lack of jurisdiction, the district court dismissed this complaint under the doctrine ofres judicata.
[4] The earlier suit was brought against Loesel, an IRS revenue agent, and two unnamed IRS agents. The second suit added Kurtz, Commissioner of the IRS, as a defendant. "There is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States isres judicatain relitigation of the same issue between that party and another officer of the government."SunshineAnthracite Coal Co. v. Adkins,310 U.S. 381,402-03,60 S.Ct. 907,917,84 L.Ed. 1263(1940);see Mervin v. FTC,591 F.2d 821,830(D.C. Cir. 1978).
[5] Although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merit so as to make the caseresjudicataon the substance of the asserted claim, it does adjudicate the court's jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims.Mulcahy v. United States,388 F.2d 300(5th Cir. 1968);Shaw v. Merritt-Chapman Scott Corp.,554 F.2d 786(6th Cir.),cert. denied,434 U.S. 852,98 S.Ct. 167(1977);Sanchez v.Caribbean Carriers Ltd.,552 F.2d 70(2d Cir.),cert. denied,434 U.S. 853,98 S.Ct. 168,54 L.Ed.2d 123(1977);see Durfee v.Duke,375 U.S. 106,84 S.Ct. 242,11 L.Ed.2d 186(1963).
[6] The record on appeal is incomplete, containing neither the complaint nor the order of dismissal in the earlier action. Both actions, however, were before the same court. The district courtsua spontedismissed onres judicatagrounds even though Fed.R.Civ.P.8(c) denominatesres judicataas an affirmative defense. Dismissal by the courtsua sponteonres judicatagrounds, however, is permissible in the interest of judicial economy where both actions were brought before the same court.See Hicks v. Holland,235 F.2d 183(6th Cir.),cert. denied,352 U.S. 855,77 S.Ct. 83,1 L.Ed.2d 66(1956);cf. W. E. HedgerTransportation Corp. v. Ira S. Bushey Sons, Inc.,186 F.2d 236(2d Cir. 1951) (motion to dismiss).
[7] AFFIRMED.