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March 29, 1972


The opinion of the court was delivered by: Will, District Judge.


THE STATE SUIT. To discuss the effect of the state suit on this federal action, a brief description and history of the state action is necessary. Surprisingly, neither the plaintiff nor the defendants have attached a copy of the complaint in the state suit, but we surmise from both plaintiff's and defendants' descriptions thereof that it does not allege any federal constitutional theory of suit but only alleges a common law suit for false arrest.

The state suit was filed in the Circuit Court of the 18th Judicial Circuit of Illinois, DuPage County, on March 22, 1971 under the name of Luker v. Clark Oil and Refining Company, Inc., et al., No. 71-748-G against, among others, all the parties named herein. On May 21, 1971, the presiding judge dismissed the defendants Kleven and Zabel and the Village of Willowbrook (not a defendant herein) from that suit on the ground that the plaintiff had failed to comply with an Illinois statute that requires notice to be given to a municipality within six months after the accrual of certain types of causes of action before that entity or its employees may be sued. See, Illinois Local Governmental and Governmental Employees Tort Immunity Act, Ill.Rev.Stat., Ch. 85, §§ 8-101-8-103 (discussed below in detail).

On June 15, 1971, plaintiff filed an amended complaint and the defendants again renewed their motions to dismiss. After a hearing and the filing of briefs, the presiding judge again dismissed the complaint as to the police officers and the Village of Willowbrook. That suit, as it currently stands, is apparently against only Clark Oil and its agents and is on the May 1972 trial calendar. The time for appealing the decision dismissing the police officers from the suit apparently will not begin to run until the suit is concluded in its entirety.

RES JUDICATA. The defendants Kleven and Zabel initially argue that this federal suit should be dismissed for lack of jurisdiction on the basis of the state court's ruling and the doctrine of res judicata. They contend that a final state court judgment is res judicata and binding upon a later federal suit where the parties and subject matter are the same notwithstanding the pendency of an appeal from the state court decision. We agree with these general propositions of law, but disagree with their proposed application in this case.

The general rule of the doctrine of res judicata stated above must be qualified by the caveat that the judgment entered must be on the merits. Of course, a determination of lack of jurisdiction will be deemed judicially conclusive in a subsequent suit on the same cause of action as to the precise issue of jurisdiction previously ruled upon. See, American Surety Company v. Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 77 L.Ed. 231 (1932). Consistently, a dismissal for jurisdictional reasons by a state court is res judicata as to that jurisdictional issue in a subsequent federal suit when jurisdiction for the second suit is based upon diversity of citizenship and the federal court is sitting as another court of the state. Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947).

A reading of the Circuit Court's order dismissing the defendants Kleven and Zabel clearly indicates that the dismissal was for lack of jurisdiction because of the plaintiff's failure to comply with the jurisdictional prerequisite of providing notice stated by Ill.Rev.Stat., Ch. 85, § 8-102. This ruling in the state false arrest suit, even assuming its finality which is open to question, would be res judicata if the plaintiff brought a second false arrest suit here with federal jurisdiction based solely upon diversity of citizenship. The plaintiff's instant suit, however, is based upon federal question jurisdiction under federal statutes and the court is not sitting, so far as this case is concerned, as an adjunct of the state court system. Accordingly, the state court's jurisdictional ruling is not binding upon this Court as res judicata and does not preclude this Court from reaching the merits of plaintiff's claims so long as he has satisfied the federal requisites for jurisdiction.


The defendants Kleven and Zabel next argue that, even if the state jurisdictional decision is not binding upon this Court through the doctrine of res judicata, the same notice requirements of Ill.Rev.Stat., Ch. 85, § 8-102, should be deemed as a jurisdictional prerequisite for this federal cause of action and that the same result of dismissal as occurred in the state suit must be reached herein. To fully understand the basis of this argument, a brief review of the federal civil rights statutes involved herein must be made.

Section 1983 of Title 42 of the United States Code authorizes suit against any party acting under color of state law who subjects a person to the deprivation of any of his constitutionally guaranteed rights. No statute of limitations or any other requirements for suit, such as the notice provisions of the Illinois statutes, are set forth in § 1983. Section 1988 of the same title, however, states in pertinent part:

  The jurisdiction in civil . . . matters conferred on
  the district courts by the provisions of this
  chapter . . ., for the protection of all persons in
  the United States in their civil rights, and for
  their vindication, shall be exercised and enforced in
  conformity with the laws of the United States, so far
  as such laws are suitable to carry the same into
  effect; but in all cases where they are not adapted
  to the object, or are deficient in the provisions
  necessary to furnish suitable remedies and punish
  offenses against the law, the common law, as modified
  and changed by the . . . statutes of the State
  wherein the court having jurisdiction of such civil
  or criminal cause is held, so far as the same is not
  inconsistent with the Constitution and laws of the
  United States, shall be extended to and govern the
  said courts in the trial and disposition of the
  cause . . .

Finally, in this vein, the Rules of Decision Act, 28 U.S.C. § 1652, requires that the laws of the several states shall be regarded as rules of decision in civil actions in federal courts in cases where they apply except when Acts of Congress otherwise require.

In construing these three statutes and holding that the state statute of limitations of the state in which the district courts sits is binding in § 1983 suits in federal courts, our Court of Appeals has concluded that § 1988 was designed to supplement but not supplant the Rules of Decision Act and is applicable only when federal substantive law is not suitably adapted or sufficient to provide an appropriate remedy and the states have remedial provisions of law which, if applied, will help achieve the goals desired by the Civil Rights Act. Baker v. F. & F. Investment Company, 420 F.2d 1191, 1193-1197 (7th Cir. 1970), cert. denied, Universal Builders, Inc. v. Clark, 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49 (1970). After reviewing the legislative history behind the Rules of Decision Act and ยง 1988, the Court there concluded that the Rules of Decision Act requires the application of state law in federal question suits where Congress has not specifically legislated on ...

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