United States District Court, Northern District of Illinois, E.D
December 24, 1980
NANCY HARL, D/B/A PUBLIC HOUSE, PLAINTIFF,
CITY OF LASALLE AND MAYOR ALOYSIUS A. GUNIA, LIQUOR COMMISSIONER, DEFENDANTS.
The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff, Nancy Harl ("Harl"), brought this action against
defendants, City of LaSalle ("LaSalle") and Aloysius Gunia
("Gunia"), the mayor and liquor commissioner of LaSalle,
alleging that revocation of her liquor license by the
defendants violated state and federal law. Federal
jurisdiction is asserted pursuant to 42 U.S.C. § 1983 and
28 U.S.C. § 1331, 1343.
On January 21, 1980, Harl filed a complaint against LaSalle
and Gunia in LaSalle County Circuit Court. Defendants moved
for dismissal of the complaint and on July 10, 1980, Chief
Judge Flood granted their motion, but allowed Harl leave to
amend her complaint by August 15, 1980. Harl failed to amend
her complaint in the alloted time period, and the Court, on
its own motion, entered an order dismissing her complaint on
September 3, 1980.*fn1 Harl initiated this federal action
thereafter.*fn2 The matter is presently before this Court on
defendants' motion to dismiss on the ground of res
Examination of Harl's state and federal complaints reveal
that they are strikingly similar. The federal complaint varies
from the state complaint in three respects: the federal
complaint alleges violations of 42 U.S.C. § 1983, denial of a
hearing, and failure to receive written notice of Gunia's
unfavorable decision on Harl's right to appeal.
In their motion to dismiss, defendants contend that since
Judge Flood's September 3 dismissal of Harl's complaint for
failure to timely amend her complaint was a final order, it
precludes Harl's federal action on the basis of res judicata
and full faith and credit. Harl, in turn, claims that Judge
Flood's order was not final; hence, res judicata and full
faith and credit do not apply.
Illinois Supreme Court Rule 273 provides:
Unless the order of dismissal or a statute of
this state otherwise specifies, an involuntary
dismissal of an action, other than a dismissal
for lack of jurisdiction, for improper venue, or
for failure to join an indispensable party,
operates as an adjudication on the merits.
Ill.Rev.Stat. 1977, ch. 110A, § 273. The Seventh Circuit
recently construed Rule 273 in Gilbert v. Braniff International
Corporation, 579 F.2d 411
(7th Cir. 1978). In Gilbert,
plaintiffs originally brought suit in the Circuit Court of Cook
County. The state court granted defendant's motion to dismiss,
with leave given to amend the complaint within 28 days. Id. at
412. Rather than amend their state complaint, the Gilbert
plaintiffs filed an action in the United States District Court
based on the same operative facts and involving the same
parties as the state suit. Because the state court granted
plaintiffs leave to amend and the defendant did not seek the
entry of an order dismissing the cause with prejudice, the
Seventh Circuit held that the order of dismissal with leave to
amend fell within the "otherwise specifies" exception to
Illinois Supreme Court Rule 273. Id. at 413. Unlike Gilbert,
Harl's complaint was not merely dismissed with leave to amend.
In fact, the Gilbert court specifically distinguished
an open-ended "order of dismissal with leave to amend" from an
order of dismissal after a failure to amend; the court noting
that the latter operated as a final order under Rule 273,
id., citing Brainerd v. First Lake Co. National Bank of
Libertyville, 1 Ill. App.3d 780, 275 N.E.2d 468
In Brainerd, the Illinois Appellate Court construed Rule 273
in a factual setting nearly identical to the present suit.
There, the complaint was dismissed, but plaintiff was granted
leave to amend. When the Brainerd plaintiff failed to amend as
directed, the trial court dismissed his cause "with prejudice."
1 Ill. App.3d at 782, 275 N.E.2d at 469. Brainerd then
initiated a second action based on the same facts. The trial
court ruled that res judicata barred his claim. The Illinois
Appellate Court held that the dismissal caused by Brainerd's
failure to amend barred his second suit because the judgment
order "with prejudice" did not fall within the Rule 273
exceptions and thus operated as an adjudication upon the merits
of the case. Id. at 782, 275 N.E.2d at 469-70.
The only distinction between Brainerd and the instant case is
that Judge Flood did not use the phrase "with prejudice" in his
September 3 Order dismissing Harl's complaint. This
distinction, however, is insignificant. Rule 273 clearly
requires that since Harl's state court complaint was not
dismissed for lack of jurisdiction, improper venue or failure
to join an indispensable party,*fn4 the order of dismissal
operates as an adjudication on the merits, unless otherwise
specified.*fn5 Judge Flood did not "otherwise specify," and
thus, by operation of Rule 273, a decision was rendered on the
merits, regardless of his failure to use the words "with
prejudice."*fn6 See Campbell v. Harrison, 16 Ill. App.3d 570,
306 N.E.2d 643 (1st Dist. 1973).
The cases cited by plaintiff are inapplicable since they
involve situations where trial courts dismissed cases with
leave to amend
without issuing any further order. As noted above, although
Judge Flood's order of July 10 granted plaintiff leave to
amend until August 15, his September 3 order provided Harl
with no further leave to amend.*fn7
The second and more difficult question raised by defendants'
motion is whether matters not raised in the dismissed state
complaint also are barred by res judicata. The only material
differences between Harl's federal and state complaints is
that her federal action is brought pursuant to 42 U.S.C. § 1983
and includes allegations regarding certain hearing demands and
notice requirements. It is undisputed, however, that these new
claims arise out of the same set of operative facts that formed
the basis for Harl's state court action.
While it is clear that Harl could easily have raised the
notice and hearing claims, along with the numerous other due
process allegations raised in state court, it was unclear,
until recently, whether she could have raised her § 1983 claim
in the state court proceeding as well. In Martinez v.
California, 444 U.S. 277, 283 n. 7, 100 S.Ct. 553, 558 n. 7, 62
L.Ed.2d 481 (1980), however, the Supreme Court held that state
courts could exercise jurisdiction over § 1983 claims.*fn8
Because the Supreme Court has construed § 1983 to permit state
court jurisdiction and because the Illinois Appellate Court has
held that Illinois courts may hear such actions, see Bohacs v.
Reid, 63 Ill. App.3d 477, 20 Ill.Dec. 304, 379 N.E.2d 1372 (2d
Dist. 1978); Alberty v. Daniel, 25 Ill. App.3d 291,
323 N.E.2d 110 (1st Dist. 1974), it is apparent that Harl could have
raised her § 1983 claim, as well as her other factual
allegations, in her state court complaint.
It is well settled that a final judgment on the merits
precludes the parties or their privies from relitigating
issues that were or could have been raised in that action.
Allen v. McCurry, ___ U.S. ___, ___, 101 S.Ct. 411, 413, 66
L.Ed.2d 308 (1980); Cromwell v. County of Sac, 94 U.S. 351,
352, 24 L.Ed. 195 (1876); Lambert v. Conrad, 536 F.2d 1183,
1185 (7th Cir. 1976). It is unsettled, however, whether this
long-standing and broad based res judicata doctrine applies to
cases brought under § 1983. In a recent decision bearing
directly on this question, the Supreme Court held that the
rules of res judicata and collateral estoppel are generally
applicable to § 1983 actions. Allen v. McCurry, ___ U.S. ___,
101 S.Ct. 411, 66 L.Ed.2d 308. In so holding, the Court based
its decision on the legislative history of § 1983 and the
strong policy considerations central to the doctrines of res
judicata, collateral estoppel and federalism.
The Court noted that § 1983 created a new cause of action in
order to add to the jurisdiction of the federal courts, not to
subtract from that of state courts. Id. ___ U.S. at ___, 101
S.Ct. at 415. Moreover, the Court found that "nothing in the
language or legislative history of § 1983 remotely expresses
any congressional intent to contravene the common law rules of
preclusion or to repeal the express statutory
requirements of the predecessor of 28 U.S.C. § 1738 . . . [nor
does it say anything] about the preclusive effect of
state-court judgments." Id. These factors take on added
significance when viewed in light of the important concerns
upon which the doctrines of res judicata and collateral
estoppel are based. These doctrines not only reduce the burden
of multiple lawsuits and unnecessary litigation while fostering
reliance on adjudication, but also promote the comity between
the state and federal courts that has been at the foundation of
our judicial system since the days of the founding fathers. See
Allen v. McCurry, ___ U.S. ___, ___, 101 S.Ct. 411, 415, 66
L.Ed.2d 308; Montana v. United States, 440 U.S. 147, 153, 99
S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); Younger v. Harris,
401 U.S. 37, 43-45, 91 S.Ct. 746, 750-51, 27 L.Ed.2d 669 (1971).
Although the Supreme Court specifically has declined to rule
upon whether a § 1983 claimant is precluded from litigating in
federal court those issues that he might have raised but did
not raise in previous litigation, Allen, ___ U.S. at ___ n. 5,
101 S.Ct. at 415 n. 5, that is the issue that now faces this
Court. In light of the persuasive reasoning articulated by the
Supreme Court in Allen, as summarized above, and the particular
factual context in which the instant case arises, this Court is
convinced that plaintiff should be precluded from relitigating
her claims against defendants in a federal forum.
Because the court's decision rests primarily on the
procedural history of this case, the facts bear repetition.
Unlike the Allen case and the majority of cases where res
judicata affects § 1983 claimants, the plaintiff in this action
was not brought into state court on an involuntary basis.
Unlike a criminal defendant, who later raises one of his state
court defenses as an affirmative cause of action under § 1983,
Harl chose to invoke the jurisdiction of the Illinois state
court to prosecute her federal and state law claims. The
defendants accepted Harl's choice of forum and responded to her
complaint by filing a detailed and comprehensive motion to
dismiss. Defendants also filed a thorough memorandum of law in
support of their motion, along with two affidavits in support
thereof. In every respect, defendants moved expeditiously to
respond to the claims included in Harl's six-count complaint.
Harl chose not to respond in writing to defendants' motion.
After hearing oral arguments by the parties, the state court
granted defendants' motion but gave Harl leave to her complaint
within 35 days. When Harl failed to amend within 35 days, the
court, on its own motion, entered an order dismissing Harl's
complaint. One week later, Harl instituted her federal court
action against the same defendants, based on the same set of
operative facts alleged in her state court complaint. The point
of this reiteration of facts is to underscore the obvious:
Although the doors of the federal court were open to her, Harl
selected the state court forum. Moreover, Harl does not assert
that she was not provided a full and fair opportunity to
litigate her claim in that setting.*fn9 Indeed, Harl's only
the state court proceeding is that she lost there. Only after
her loss in state court did she begin shopping for another
This dismissal of Harl's complaint on the basis of res
judicata will not unfairly keep her from litigating her
claims. Harl could have amended her state court complaint
within the time allotted by Judge Flood and she could have
added therein the claims that now appear in her federal court
complaint. After the second dismissal order was entered, she
could have moved to have that order vacated; that failing, her
remedy was to appeal her dismissal.
In two cases with strikingly similar fact situations, courts
have reached the same conclusion. In Spence v. Latting,
512 F.2d 93 (10th Cir. 1975), plaintiff brought suit against
parties in federal court whom he had sued previously in state
court, based upon the same set of operative facts. The only
difference was that plaintiff changed his theory and request
for relief in the latter action, raising § 1983 for the first
time. 512 F.2d at 98. The court held that plaintiff's § 1983
claim was barred by res judicata even though he had not raised
§ 1983 in his previous suit, concluding that,
The federal court house doors were initially open
to him; but he deliberately chose the state
forum. Allowing him now to bring claims in the
federal court which were appurtenant to the core
of his cause of action in prior state court suits
would work a disservice to the salutary policies
underlying res judicata.
Id. at 99.
Similarly, in Tomsick v. Jones, 464 F. Supp. 371 (D.Colo.
1979), plaintiff brought an action in state court alleging that
he was dismissed from his job for exercising protected first
amendment rights. The state trial court, however, ruled against
him, concluding that he was discharged for other reasons.
Tomsick changed his theory and filed an action in federal court
under § 1983, but alleging the same constitutional violations.
The district court found that while plaintiff's federal
complaint did have some technical differences from his state
court action, it raised the same issues as were adjudicated by
the state court and thus was barred by res judicata. Id. at
In summary, since the September 3, 1980, order entered by
Chief Judge Flood against Harl in her state court action was
a final judgment on the merits, and since Harl could have, but
did not, raise § 1983 along with her hearing and her notice
claims in the state court action that she initiated, she is now
barred by res judicata from attempting to litigate these claims
in federal court. Accordingly, defendants' motion to dismiss
plaintiff's complaint is granted.