dismissal on behalf of the DuPage and Cook County defendants.
We note that Hardin's complaint also requests compensatory and exemplary damages, and she likely possesses standing to bring such claims against the Will County defendants. It does not follow, however, that these claims guarantee that Hardin will vigorously protect the interests of the remaining class members, assuming this court were inclined to reshape the class to include, or allow a subclass consisting of:
all persons in Will County, Illinois, who have sought an order of protection under the Illinois Domestic Violence Act and who have been required, or who were requested to pay, a filing fee for the initiation of a protective order; including those unknown individuals who were denied a protective order because they lacked sufficient funds to pay the mandatory filing fee.
Indeed, the Seventh Circuit has held that a class cannot be certified by a representative who lacks standing to bring a claim for injunctive relief, regardless of the existence of compensatory claims. Robinson, 868 F.2d at 968; see also Magnuson, 730 F. Supp. at 1443. Further, it is settled law that the presence of even an arguable defense against the named plaintiff that is not applicable to the proposed class, or in this case subclass, can vitiate the adequacy of named plaintiff's representation. See J.H. Cohn & Co. v. American Appraisal Assoc., Inc., 628 F.2d 994, 998-999 (7th Cir. 1980); Wagner v. Lehman Bros. Kuhn Loeb Inc., 646 F. Supp. 643, 660 (N.D. Ill. 1986); Grossman v. Waste Management, Inc., 100 F.R.D. 781, 787 (N.D. Ill. 1984). "The fear is that the named plaintiff will become distracted by the presence of a possible defense applicable only to [her] so that the representation of the rest of the class [who may be bound be a class action judgment] will suffer." J.H. Cohn, 628 F.2d at 999. The gravamen of the Will County defendants' motions to dismiss is that the doctrine of res judicata precludes any recovery by Hardin. Despite the fact that this motion is presently fully briefed and will be addressed below, we believe that the existence of this colorable defense poses representation problems sufficient to deny certification of the above subclass. Specifically, in the event that this court rule in favor of the Will County defendants, Hardin would retain no incentive to proceed to litigate the merits of the claims on behalf of the remaining class members.
In sum, because Hardin does not have claims typical of the putative class as a whole, and because she is subject to an unique defense which may vitiate the adequacy of her representation, we deny the motion for class certification.
III. Substantive Defenses
As discussed above, Hardin's lack of standing to contest the filing fee requirement as implemented in Cook and DuPage Counties warrants dismissal on behalf of the Cook and DuPage County defendants. Thus, we are left to consider Hardin's claims against Harshbarger, Weber and Will County, i.e., the Will County defendants. In support of their respective motions to dismiss,
the Will County defendants contend that: (1) the present action is barred by the doctrines of res judicata and collateral estoppel; (2) a ministerial misrepresentation of state law does not give rise to a claim under 42 U.S.C. § 1983; (3) there is a lack of controversy sufficient to warrant relief; (4) they are not proper parties in interest; and (5) they are immune from damage claims under the Eleventh Amendment. Because we agree that Hardin's current action is barred under the doctrine of res judicata, we do not reach her other arguments.
It is well established that a state court judgment must be given the same preclusive effect in federal court as it would be given in the courts of the rendering state. 28 U.S.C. § 1738; Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S. Ct. 892, 896, 79 L. Ed. 2d 56 (1984); Pirela v. Village of N. Aurora, 935 F.2d 909, 911 (7th Cir.), cert. denied, 112 S. Ct. 587, 116 L. Ed. 2d 612 (1991); Jones v. City of Alton, 757 F.2d 878, 883 (7th Cir. 1985). This rule is applicable to actions brought under § 1983 respecting both issues actually litigated (issue preclusion), Allen v. McCurry, 449 U.S. 90, 97-98, 101 S. Ct. 411, 416-17, 66 L. Ed. 2d 308 (1980), and issues which could have been raised in the earlier state-court proceeding but were not (claim preclusion). Lee v. City of Peoria, 685 F.2d 196, 198-99 (7th Cir. 1982). To determine whether a subsequent claim is barred by the doctrine of res judicata, this court employs a two-pronged inquiry. First, we must ascertain whether "the law of the state in which the prior judgment is rendered would give that judgment preclusive effect against the claims asserted in the federal action." Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481-82, 102 S. Ct. 1883, 1897-98, 72 L. Ed. 2d 262 (1982); Pirela, 935 F.2d at 911; Welch v. Johnson, 907 F.2d 714, 719 (7th Cir. 1990). If so, the court must determine whether the party against whom res judicata is asserted had a full and fair opportunity to pursue the claim in the prior state proceeding. Kremer, 456 U.S. at 481-82, 102 S. Ct. at 1897-98; Pirela, 935 F.2d at 911; Welch, 907 F.2d at 719. Hardin does not claim that she was denied a full and fair opportunity to litigate her claims in the prior state court action and, as such, we proceed to determine whether the Illinois courts would give the prior judgment preclusive effect against the current claims.
Under Illinois law the doctrine of res judicata (claim preclusion) provides that "a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent actions between the same parties or their privies on the same cause of action." Simcox v. Simcox, 131 Ill. 2d 491, 497, 546 N.E.2d 609, 611, 137 Ill. Dec. 664 (1989). Likewise, "the bar of res judicata extends not only to questions actually decided, but also to all grounds of recovery and defenses which might have been presented in the prior litigation between the parties." Henry v. Farmer City State Bank, 808 F.2d 1228, 1234 (7th Cir. 1986) (citing Lake v. Tomes, 405 Ill. 295, 90 N.E.2d 774 (1950)); see also LaSalle Nat'l Bank v. County of DuPage, 856 F.2d 925, 930-31 (7th Cir. 1988) (interpreting Illinois law), cert. denied, 489 U.S. 1081, 109 S. Ct. 1536, 103 L. Ed. 2d 840 (1989). The Will County defendants, as the parties asserting res judicata, bear "the burden of showing with clarity and certainty what was determined by the prior judgment." LaSalle Nat'l Bank, 856 F.2d at 930; Jones, 757 F.2d at 885.
In the instant case, Hardin contests only the requirement that the prior state court judgment be on the merits. Specifically, she claims that, notwithstanding Judge Master's temporary injunction order on May 22, 1992 and the permanent administrative order dated May 26, 1992, the judgment entered in the previous state court action (No. 92 MR 4929) was not made on the merits. We disagree. In entering a temporary injunction in favor of Hardin, Judge Masters determined that she was "likely to succeed on the merits." See Chicago Health Clubs, Inc. v. Picur, 124 Ill. 2d 1, 7, 528 N.E.2d 978, 981, 124 Ill. Dec. 87 (1988) (circuit court determining the propriety of a temporary injunction must consider whether plaintiff is likely to succeed on the merits). While this determination in itself is not a final judgment on the merits, its culmination in the permanent administrative order is such a judgment. In granting permanent injunctive relief, Judge Masters relied heavily on battered women's need for immediate access to the court, a right guaranteed under the United States Constitution. See Boddie, 401 U.S. at 376, 91 S. Ct. at 785. To be sure, the order stated: "It is essential that abused women and other victims have immediate access to the courts so as to secure their personal safety as well as the safety of their minor children." That Hardin obtained her relief via an administrative order does not undermine the fact that she received a judgment on the merits. In utilizing the administrative order, Judge Masters was able to accord prospective relief to future victims seeking orders of protection. However, the order is nonetheless tied to Hardin's case. Indeed, it specifically dissolves and supersedes the temporary injunction entered on May 22, 1992, in case No. 92 MR 4929. Further, that Hardin voluntarily dismissed the remainder of her complaint (i.e., abandoning her claim for damages under § 1983) after obtaining permanent injunctive relief does not prevent the application of res judicata. See Baird & Warner, Inc. v. Addison Indus. Park, Inc., 70 Ill. App. 3d 59, 63-64, 387 N.E.2d 831, 837, 26 Ill. Dec. 1 (1st Dist. 1979). As a virtual clone to the state court action adjudicated on the merits in Will County, the present cause is barred under the doctrine of res judicata, and we enter judgment on the merits in favor of the Will County defendants.
For the reasons set forth above, we deny Hardin's motion for class certification and grant the motions to dismiss filed on behalf of the Cook and DuPage County defendants. The Will County defendants are entitled to a judgment on the merits. It is so ordered.
MARVIN E. ASPEN
United States District Judge