Opinion
Case No. 3:04CV07552.
January 7, 2005
ORDER
Plaintiff, Elizabeth K. Ward, and her husband, Donald L. Ward, brought this suit under state tort law and the Americans with Disabilities Act (ADA) after Mrs. Ward fell at the Wyandot County, Ohio, Courthouse. The accident happened on September 7, 1999, as Mrs. Ward was entering an elevator. She alleges that she suffered several personal injuries as a result of this fall.
Pending is defendant's motion for summary judgment. For the following reasons, defendant's motion shall be granted.
Background
Plaintiffs filed their first complaint in the Court of Common Pleas of Wyandot County, asserting claims for negligence and loss of consortium. Plaintiffs voluntarily dismissed their first complaint on September 28, 2001. The dismissal was entered without prejudice.
Plaintiffs refiled this suit in the Court of Common Pleas of Wyandot County on September 24, 2002, asserting claims for negligence, violation of the ADA, and loss of consortium. On February 25, 2004, plaintiff again filed a voluntary dismissal, seeking dismissal without prejudice on the basis that: "The proper Jurisdiction for violations and claims under the Americans with Disability [sic] Act (ADA), in Wyandot County, State of Ohio, is with the Federal District Court in the Northern District of Ohio, for violations of the Plaintiffs' Civil and Constitutional Rights." (Doc. 4, Exhibit D.)
Plaintiffs did not delineate an ADA claim as a separate cause of action, but referenced an alleged violation of the ADA within their negligence claim. Plaintiffs thus appear to have used the ADA to demonstrate duty and breach of duty and not to set forth another claim. Though I do not believe plaintiffs properly asserted a separate ADA claim in their second complaint, I will assume, for purposes of summary judgment, that plaintiffs did so under Title II, discrimination in public services ( 42 U.S.C. §§ 12131- 12165).
Plaintiffs refiled their suit on September 7, 2004, in this court, asserting claims for negligence, loss of consortium, and violations of the ADA. Defendant immediately filed for summary judgment under Fed.R.Civ.P. 41(a)(1) on the basis of the "double dismissal rule."
Discussion
Defendant contends that res judicata prevents plaintiffs from refiling this suit because plaintiffs' second dismissal acted as an "adjudication upon the merits" under Rule 41(a)(1). Plaintiffs assert that the second dismissal cannot be held to operate as an adjudication on the merits because Ohio state courts (including the Court of Common Pleas of Wyandot County) do not have jurisdiction over claims brought under the ADA.
Because plaintiffs twice voluntarily dismissed their suit in state court, I find that the second dismissal operates as an adjudication on the merits pursuant to Rule 41(a)(1) and that plaintiffs' suit is now barred.
1. Claim Preclusion (i.e., Res Judicata) and the Double Dismissal Rule
In Migra v. Warren City School District Bd. of Educ., 465 U.S. 75, 77 n. 1(1984), the U.S. Supreme Court preferred use of the terms "issue preclusion" and "claim preclusion," rather than "collateral estoppel" and "res judicata" when referring to the preclusive effect of a judgment in foreclosing future litigation. Thus in this opinion, I will use the term "claim preclusion" instead of the term "res judicata."
Defendant asks that I give preclusive effect to the second dismissal of plaintiffs' suit in state court, and thereby hold that plaintiffs' present suit is barred. The Sixth Circuit has held that "the full faith and credit statute, 28 U.S.C. § 1738, requires a federal court to accord a state court judgment the same preclusive effect that the judgment would have in a state court." Corzin v. Fordu (In re Fordu), 201 F.3d 693, 703 (6th Cir. 1999) (citing Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 384 (1985)). Thus, "[w]hen a federal court is asked to give preclusive effect to a state court judgment," as I am being asked to do here, "the federal court must apply the law of the state in which the prior judgment was rendered in determining whether and to what extent the prior judgment should be given preclusive effect in a federal action." Id.
The relevant portion of the full faith and credit statute, 28 U.S.C. § 1738, states:
The records and judicial proceedings of any court of any such State . . . shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State . . . from which they are taken.
The "double dismissal" rule, as stated in Ohio R. Civ. P. 41(a)(1) is: "Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits of any claim that the plaintiff has once dismissed in any court." (Emphasis added). See Microvote Corp. v. Casey, 1995 WL 364170, *1 (6th Cir. June 16, 1995) ("Under Rule 41(A)(1) of the Ohio Rules of Civil Procedure, a plaintiff's voluntary dismissal of an action operates as an adjudication upon the merits if `an action based on or including the same claim' has been dismissed by the plaintiff before."); Forshey v. Airborne Freight Corp., 142 Ohio App. 3d 404, 408 (Ohio Ct.App., 2001) ([I]n other words, the notice dismissal of Civ.R. 41(A)(l) is available to the plaintiff only once and a second notice dismissal acts as an adjudication on the merits despite contrary language in the notice.").
The federal rule is nearly identical to Ohio's rule and incorporates the principles of the full faith and credit statute. Fed.R.Civ.P. 41(a)(1) states:
Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.
Interpreting the effect of Ohio's double dismissal rule, the Sixth Circuit has stated: "A dismissal that operates as an adjudication upon the merits has the effect of a dismissal with prejudice, and if an action that has been so dismissed is refiled, it `is vulnerable to the defense of [claim preclusion].'" Microvote, supra, at *6 (quoting Chadwick v. Barba Lou, Inc., 69 Ohio St. 2d 222, 226 (1982)).
Claim preclusion prevents parties from relitigating claims that were already or could have been litigated in a previous action. Ater v. Follrod, 238 F. Supp. 2d 928, 937 (S.D. Ohio 2002) (citing Grava v. Parkman Twp., 73 Ohio St. 3d 379, 382 (Ohio 1995)). To invoke the doctrine of claim preclusion, a party must prove:
(1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action.Id. (quoting In re Fordu, 201 F.3d at 703).
In the present case, plaintiffs filed suit in state court on September 6, 2001, alleging negligence and loss of consortium. Plaintiffs dismissed their suit on September 28, 2001. Subsequently, plaintiffs refiled their suit in state court, asserting claims for negligence, violation of the ADA, and loss of consortium. On February 25, 2004, plaintiffs again voluntarily dismissed their case.
The second dismissal in state court acted as an adjudication on the merits under Rule 41(a)(1) and thus is a prior final, valid decision on the merits by a court of competent jurisdiction. The present action involves the same parties, raises claims that were or could have been litigated in the first action, and arises out of the transaction or occurrence that was the subject matter of the previous action. Because the plaintiffs voluntarily dismissed both complaints, the double dismissal rule applies, and plaintiffs' third suit is barred.
B. Lack of Jurisdiction Over Plaintiffs' ADA Claim
Plaintiffs contend that the second dismissal could not have operated as an adjudication on the merits because the state court never had jurisdiction over plaintiffs' ADA claim. Thus, plaintiffs argue, Rule 41(b) precludes this court from deeming the second dismissal an adjudication on the merits.
While plaintiffs are correct in that a dismissal for lack of jurisdiction under Rule 41(b) is not an adjudication on the merits, Rule 41(b) is inapplicable to the record before me. Rule 41(b) deals with involuntary dismissals requested by defendants, or in other words, dismissals other than voluntary dismissals under Rule 41(a). Here, plaintiffs, rather than the defendant, twice sought dismissal of their action. Plaintiffs, moreover, captioned each dismissal as "voluntary" or "pursuant to Rule 41(a)(1)." The state court did not, on either occasion, dismiss plaintiffs' action due to lack of jurisdiction.
Rule 41(b) states:
Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
The state court, moreover, had jurisdiction over plaintiffs' suit. Plaintiffs do not explain the basis for their belief that the state court lacked jurisdiction. Whether plaintiffs' belief rests in the doctrine of sovereign immunity or exclusive jurisdiction of the federal courts, plaintiffs' argument fails.
Under Ohio law, a political subdivision, such as the Wyandot County Board of Commissioners, cannot assert the defense of sovereign immunity under the facts of this negligence action. Revised Code § 2744.02 states:
Political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including . . . courthouses. . . .
Revised Code § 2744.01(F) defines "political subdivision" as: "a municipal corporation, township, county, school district, or other body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state."
Thus, the state court, at a minimum, had jurisdiction over plaintiffs' negligence and loss of consortium claims and could have properly adjudicated those claims absent plaintiffs' dismissals.
Though a state court's jurisdiction over a Title II ADA claim may be unclear, the plaintiffs, could have, in good faith, pursued their ADA claim in state court. To the extent, however, that the state court's jurisdiction over plaintiffs' ADA claim is unclear, if at all, plaintiffs' conclusion that the state court lacked jurisdiction was not so well warranted that plaintiff could properly take a nonsuit in state court without coming within the double dismissal rule.
The jurisdictional question has not been decided by any court of controlling authority, but I believe the state court had concurrent jurisdiction.
The U.S. Supreme Court has consistently held that "state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States." Nev v. Hicks, 533 U.S. 353, 366 (2001) (quoting Tafflin v. Levitt, 493 U.S. 455, 458 (1990)). This presumption is rooted in Article III of the Constitution, which gives Congress the choice, whether if at all, to create lower federal courts. Id.
The presumption of concurrent jurisdiction, however, can be rebutted by "explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests." Gulf Offshore Co. v. Mobile Oil Corp., 453 U.S. 473, 478 (1981).
In regard to ADA claims, the Sixth Circuit has stated that state courts have concurrent jurisdiction over such claims. Hapgood v. City of Warren, 127 F.3d 490, 494 (6th Cir. 1997).
Nothing in the language of the ADA, moreover, precludes state court jurisdiction. See Lillback v. Metro Life Ins. Co, 94 Ohio App.3d 100, 111-12 (1994) (citing Elek v. Huntington Natl. Bank, 60 Ohio St.3d 135, 138, (1991)) (holding that state courts have concurrent jurisdiction over claims arising under the Rehabilitation Act of 1973). Since Title II of the ADA is to be enforced using the remedies, procedures, and rights set forth in the Rehabilitation Act of 1973, see 42 U.S.C. § 12133, and Ohio courts have concurrent jurisdiction over claims under the Rehabilitation Act, I see no reason to believe the language of the ADA precludes state court jurisdiction.
The language of the ADA expressing Congress's intent to abrogate sovereign immunity, rather, presumes concurrent jurisdiction. See 42 U.S.C. § 12202 ("A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter."); Tennessee v. Lane, 541 U.S. 509 (2004) (upholding the abrogation of state sovereign immunity under Title II of the ADA as it applies to cases implicating the fundamental right of access to the courts).
Because plaintiffs voluntarily dismissed their action twice, the second dismissal operated as an adjudication on the merits, and thus, plaintiffs' claims are now barred by claim preclusion.
Conclusion
In light of the foregoing, it is
ORDERED THAT defendant's motion for summary judgment be, and the same hereby is, granted.
So ordered.