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Boone v. Kurtz

United States Court of Appeals, Fifth Circuit
May 23, 1980
617 F.2d 435 (5th Cir. 1980)

Summary

holding that even though Federal Rule of Civil Procedure 8 denominates res judicata as an affirmative defense the doctrine may be invoked sua sponte by a court "in the interest of judicial economy where both actions were brought before the same court"

Summary of this case from Armendariz v. Bank of Am., N.A.

Opinion

No. 79-2822. Summary Calendar.

Fed.R.App.P. 34(a); 5th Cir. R. 18.

May 23, 1980.

Taylor W. O'Hearn, Shreveport, La., Joseph A. Boone, Irwinton, Ga., for plaintiffs-appellants.

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.

Appeal from the United States District Court for the Middle District of Georgia.

Before RONEY, KRAVITCH and TATE, Circuit Judges.



Joe and Mary Alice Boone filed a complaint alleging violations of their Fourth and Fifth Amendment rights in the procedure followed by defendants in assessing an income tax deficiency.

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.

The prior "almost identical" complaint having been dismissed for lack of jurisdiction, the district court dismissed this complaint under the doctrine of res judicata.

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 is res judicata in relitigation of the same issue between that party and another officer of the government." Sunshine Anthracite 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).

Although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merit so as to make the case res judicata on 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).

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 court sua sponte dismissed on res judicata grounds even though Fed.R.Civ.P. 8(c) denominates res judicata as an affirmative defense. 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. 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. Hedger Transportation Corp. v. Ira S. Bushey Sons, Inc., 186 F.2d 236 (2d Cir. 1951) (motion to dismiss).

AFFIRMED.


Summaries of

Boone v. Kurtz

United States Court of Appeals, Fifth Circuit
May 23, 1980
617 F.2d 435 (5th Cir. 1980)

holding that even though Federal Rule of Civil Procedure 8 denominates res judicata as an affirmative defense the doctrine may be invoked sua sponte by a court "in the interest of judicial economy where both actions were brought before the same court"

Summary of this case from Armendariz v. Bank of Am., N.A.

holding that dismissal of a complaint for lack of jurisdiction does not adjudicate the merits of the substance of the asserted claim, but that "it does adjudicate the court's jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims."

Summary of this case from Integrated Fin. Assocs., Inc. v. Blanchard (In re Blanchard)

finding res judicata barred second suit adding IRS commissioner where first suit named only IRS agents

Summary of this case from Owens v. Mason

finding privity between officer and governmental agency

Summary of this case from Crozier v. Venture, Inc.

affirming the district court's sua sponte dismissal, on the basis of res judicata, of claims that were dismissed for lack of jurisdiction in a prior case

Summary of this case from Bank of La. v. Fed. Deposit Ins. Corp.

affirming the district court's sua sponte dismissal, on the basis of res judicata, of a complaint raising claims that had been dismissed for lack of jurisdiction in a previously filed case

Summary of this case from Comer v. Murphy Oil USA, Inc.

affirming district court sua sponte dismissal on res judicata grounds

Summary of this case from Carbonell v. Dept. of Health Human Resources

affirming district court sua sponte dismissal on res judicata grounds

Summary of this case from United Home Rentals v. Texas Real Estate Com'n

affirming district court's sua sponte dismissal, on res judicata grounds, where both actions were brought before the same court, though the record was devoid of the complaint and the order of dismissal entered in the earlier proceeding

Summary of this case from Rivas v. U.S. Bank

recognizing the preclusive effect of a decision on the merits of a jurisdictional claim

Summary of this case from Simmons v. Coffee Cnty.

In Boone v. Kurtz, 617 F.2d 435 (5th Cir. 1980), we recognized one of the exceptions when we held that the district court could sua sponte dismiss an action on res judicata grounds in the interest of judicial economy where the previous action had been brought before a court of the same district, even though the record contained neither the complaint nor the order of dismissal in the earlier action.

Summary of this case from Nagle v. Lee

In Boone, an income-tax dispute, the plaintiffs filed a second lawsuit in the same court that was "almost identical" to the first.

Summary of this case from Ousley v. Ramirez

permitting sua sponte dismissal on res judicata grounds when, in the interest of judicial economy, both actions were brought before the same court, even though the record contained neither the complaint nor the order of dismissal in the earlier action

Summary of this case from Carpenter v. Webre

dismissing second case against individual tax agents where earlier case had been dismissed for lack of jurisdiction

Summary of this case from Johnson v. Pope

In Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980), the former Fifth Circuit held that "[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" even if the record does not contain either the complaint or order of dismissal in the earlier action.

Summary of this case from Nelson v. U.S.
Case details for

Boone v. Kurtz

Case Details

Full title:JOE BOONE AND MARY ALICE BOONE, PLAINTIFFS-APPELLANTS, v. JEROME KURTZ…

Court:United States Court of Appeals, Fifth Circuit

Date published: May 23, 1980

Citations

617 F.2d 435 (5th Cir. 1980)

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