Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 C 2350 -- John Powers Crowley, Judge .
Before Bauer and Wood, Circuit Judges, and Thomas, Senior District Judge.*fn*
This is an appeal from the district court for the Northern District of Illinois, staying proceedings in the Circuit Court of Cook County, Illinois. The issue on appeal is whether res judicata bars a litigant from bringing a contract claim in state court following a dismissal on the merits of his federal anti-trust claim from federal court where the litigant did not join the contract claim as an alternative theory of recovery in the federal action. The district court answered this question in the affirmative and granted the defendant's motion for a permanent injunction pursuant to the relitigation exception to the Federal Anti-Injunction statute, 28 U.S.C. § 2283. Because we find that the appellant has split its cause of action, we affirm.
Harper Plastics, Inc. ("Harper") purchases and resells raw thermoplastic materials and other plastic goods. Amoco Chemicals, Inc. manufactures polypropylene and other polymer resins, and markets them in interstate commerce. A subsidiary of Amoco Chemicals, Amoco Fabrics, Inc., operates three plants in which it manufactures and sells synthetic yarns and fabrics made from polypropylene. Patchogue-Plymouth, Inc. is a division of Amoco Fabrics. In June 1976, Harper commenced this action against Amoco Chemicals and its subsidiaries in federal district court. The first two counts of Harper's amended complaint alleged violations of § 2 of the Clayton Act as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a). Specifically, Harper alleged that the defendants had discriminated against it by selling waste polypropylene to other customers at lower prices and by offering certain services and advantages to other customers which were unavailable to Harper. Amended Count III of the complaint alleged that the defendants had violated 15 U.S.C. § 13(e) by requiring that Harper disclose the names of its resale customers as a precondition to the sale of a quantity of polypropylene carpet backing known as F.L.W. Count IV alleged that Amoco Fabrics and Patchogue-Plymouth had breached a contract for the sale of mixed-face yarn. The first three counts alleged federal claim jurisdiction pursuant to 28 U.S.C. § 1331. Count IV alleged diversity jurisdiction pursuant to 28 U.S.C. § 1332 or pendent jurisdiction in the alternative.
After extensive discovery by both parties, defendants moved for summary judgment on all four counts. The district judge took cognizance of matters outside the pleadings and thereupon dismissed the first two counts pursuant to Fed.R.Civ.P.12(b)(1)*fn1 for failing to meet the "in commerce" requirement of 15 U.S.C. § 13(a). The third count was dismissed for failing to state a claim upon which relief could be granted because there was no consummated transaction for the purposes of § 13(e), and the fourth count was held barred by the statute of frauds. On appeal, this court affirmed the dismissal of Counts I and II in an unpublished order dated March 17, 1980, but reversed the dismissal of Count IV. 618 F.2d 114. In a published opinion issued contemporaneously with that order, we held that 15 U.S.C. § 13(e) does not require a fully consummated transaction, but nonetheless affirmed the district judge's dismissal of Amended Count III because the facts did not show a discrimination in services or facilities within the meaning of that section. Harper Plastics, Inc. v. Amoco Chemicals Corp., 617 F.2d 468 (7th Cir. 1980).
While that appeal was pending, however, Harper filed a three-count complaint in the Circuit Court of Cook County, Illinois. The conduct alleged in the first count of that complaint was the same as that alleged in Counts I and II of the federal complaint. The second count alleged the same facts as Amended Count III, and the third count repeated the facts alleged in Count IV of the federal complaint. The state trial judge dismissed the first count for failing to state a claim upon which relief could be granted and the third count because that part of Harper's lawsuit was still pending in federal court; he refused to dismiss the second count. The defendants thereafter returned to federal district court seeking an injunction staying the state proceedings. On October 31, 1980, the district judge held that Harper was attempting to relitigate issues finally adjudicated in the earlier federal proceedings, and enjoined the state proceedings pursuant to the Anti-Injunction statute, 28 U.S.C. § 2283.*fn2 This appeal followed.
At the outset, we consider appellant's contention that the first three counts of its amended federal complaint were dismissed for want of subject matter jurisdiction. If that argument is correct, then res judicata cannot bar the state proceedings because a dismissal for want of jurisdiction does not preclude a court of competent jurisdiction from reaching the merits of the claim in a subsequent suit. See 1B Moore's Federal Practice P 0.405(5) at 659-62 (2d ed. 1980). That dismissal would merely preclude relitigation of the issue of whether the first tribunal had jurisdiction. Jackson v. Irving Trust Co., 311 U.S. 494, 61 S. Ct. 326, 85 L. Ed. 297 (1941). Conversely, if the dismissal of appellant's complaint from federal court was a valid final judgment on the merits, the appellant has had its day in court and res judicata will bar relitigation of the same cause of action against the appellees. Commissioner v. Sunnen, 333 U.S. 591, 68 S. Ct. 715, 92 L. Ed. 898 (1948); Church of the New Song v. Establishment of Religion on Taxpayers' Money in the Federal Bureau of Prisons, 620 F.2d 648 (7th Cir. 1980), cert. denied, 450 U.S. 929, 101 S. Ct. 1387, 67 L. Ed. 2d 361 (1981). Therefore, as a necessary adjunct to our holding, we must decide whether the dismissal of Harper's Amended Count III was on the merits.
For the purposes of res judicata, the definition of a judgment on the merits is one which "is based on legal rights as distinguished from mere matters of practice, procedure, jurisdiction, or form." Fairmont Aluminum Co. v. Comm'r, 222 F.2d 622 (4th Cir.), cert. denied, 350 U.S. 838, 76 S. Ct. 76, 100 L. Ed. 748 (1955). Traditionally, a judgment is on the merits if it completely disposes of the underlying cause of action, Cromwell v. County of Sac, 94 U.S. 351, 24 L. Ed. 195 (1877), or determines that the plaintiff has no cause of action, Restatement of the Law of Judgments § 49, comment a at 193 (1942). Its effect is that of an absolute bar to a subsequent action. Weston Funding Corp. v. Lafayette Towers, Inc., 550 F.2d 710, 713 (2d Cir. 1977). A more modern view includes not only those judgments based on legal rights, but extends to dismissals on other than traditionally substantive grounds. See Fed.R.Civ.P. 41(b); , Restatement (Second) of Judgments § 48, at 42-43. Indeed, the Restatement (Second) of Judgments dispenses with the "on the merits" terminology "because of its possibly misleading connotations." Restatement (Second) of Judgments, § 48 at 36 (Tent. Draft No. 1 1973).
Even if we were confined to the older, more limited view, we should still find that the dismissal of appellant's Amended Count III was on the merits. In its opinion affirming the district judge's dismissal of that part of Harper's complaint, this court explained:
(T)he conduct of which Harper complains, imposing a condition that resale be overseas and demanding assurances in the form of a customer list, was not discrimination with respect to delivery services; rather it was a refusal to go forward unconditionally with a sale.... Section 2(e) requires that service of delivery itself be made available to purchasers on proportionally equal terms. It does not require that all conditions precedent to a delivery be identical in every transaction in like goods sold for resale. As the gravamen of Harper's complaint is discrimination with respect to a term of sale not itself a "service" within the meaning of § 2(e), Harper may not attempt to bring its case within the meaning of that subsection by employing the label "delivery."
617 F.2d 468, 473 (7th Cir. 1980). Thus, the court was required to deal with the substance of Harper's allegations and not merely with "the authority conferred by Congress to decide a given type of controversy...." Hagans v. Lavine, 415 U.S. 528, 538, 94 S. Ct. 1372, 1379, 39 L. Ed. 2d 577 (1974). A failure to show a discrimination in services or facilities tends to determine that the case will be decided one way rather than another. In other words, it determines whether the plaintiff has any basis for his cause of action. Accordingly, we find that the dismissal of appellant's Amended Count III went to the merits.
Having decided that much, we may not dispense with appellant's argument that because the district court found, and we agreed, that there was no subject matter jurisdiction over Counts I and II,*fn3 the dismissal of the first three counts was jurisdictional. The short answer is that Counts I and II alleged separate transactions and separate instances of wrongdoing, and therefore stated separate causes of action. Himel v. Continental Illinois National Bank and Trust, 596 F.2d 205 (7th Cir. 1979). The court was empowered to and did reach the merits of the cause of action arising out of the sale of F.L.W., and the disposition of the other claims is of no moment to us here.
Next, we consider appellant's argument that the cause of action alleged in Amended Count III of the federal pleading is distinct from that alleged in the state complaint. Appellant admits that Amended Count III is based on the same "physical acts" as Count II of the state complaint, but nonetheless urges that because recovery is sought under different laws, the rights and duties ...