O'Connor v. Pierson, No. 07-1758 (2d Cir. 2009)
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07-1758-cv O'Connor v. Pierson 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 (Argued: March 9, 2009 Decided: June 3, 2009) 5 Docket No. 07-1758-cv 6 ------------------------------------- 7 THOMAS O'CONNOR, 8 Plaintiff-Appellant, 9 - v - 10 11 12 13 LYNNE B. PIERSON, ELLEN C. HEALY, CHRISTOPHER A. DUMAS, PATRICIA M. STRONG, CHRISTINE T. FORTUNATO, DONNA H. HEMMANN, STACEY HODGES, JOHN F. MORRIS, FREDERICK E. PETRELLI JR., PENNY H. STANZIALE, and WETHERSFIELD BOARD OF EDUCATION, 14 Defendants-Appellees. 15 ------------------------------------- 16 17 Before: 18 WINTER and SACK, Circuit Judges, and COGAN, District Judge.* Appeal from an order of the United States District 19 Court for the District of Connecticut (Robert N. Chatigny, Chief 20 Judge) granting the defendants' motion for summary judgment. 21 agree with the district court that the plaintiff's claims, which 22 are based on an alleged denial of his right to substantive due 23 process, are barred under the doctrine of res judicata inasmuch 24 as they were or could have been brought in the parallel suit * We The Honorable Brian M. Cogan of the United States District Court for the Eastern District of New York, sitting by designation. 1 based on the same facts that were litigated to a final judgment 2 in Connecticut state court. 3 Affirmed. 4 5 6 LEON M. ROSENBLATT, Law Offices of Leon Rosenblatt, West Hartford, CT, for Appellant. 7 8 9 10 MICHAEL J. ROSE, Rose Kallor, LLP (Johanna G. Zelman, Melinda A. Powell, of counsel), Hartford, CT, for Appellees. 11 Sack, Circuit Judge: 12 13 Plaintiff-appellant Thomas O'Connor pursued parallel lawsuits against the defendants in federal and state court. 14 What became the federal lawsuit was first filed in the 15 Superior Court for the State of Connecticut. 16 assertion of, inter alia, causes of action under federal law, the 17 action was removed by the defendants to the United States 18 District Court for the District of Connecticut. 19 stalled, the plaintiff filed a second complaint in Superior Court 20 in which he limited himself to the assertion of state law claims 21 only. 22 O'Connor's favor on one of his claims, but against him on the 23 others. 24 This lawsuit went to trial. Based on O'Connor's When the case A state-court jury found in Both sides appealed. Shortly after the state trial court judgment was 25 entered, the district court in the pending parallel federal 26 action (Robert N. Chatigny, Chief Judge) entered judgment for the 27 defendants on all of O'Connor's federal claims, and remanded the 28 pendent state claims to state court. 2 The district court did not 1 reach an issue raised by the defendants: whether the state court 2 judgment had a res judicata (or "claim preclusion") effect on the 3 claims pending in the federal action. 4 judgment was appealed to this Court. 5 That district court While the federal appeal was pending here, the 6 Connecticut Appellate Court reversed the judgment based on the 7 state-court jury verdict with respect to the one claim on which 8 O'Connor had been successful -- invasion of privacy - and 9 affirmed the remaining claims on which the defendants had 10 prevailed. 11 petition for certification for appeal. 12 in the state-court lawsuit were therefore unsuccessful. 13 The Connecticut Supreme Court denied O'Connor's All of O'Connor's claims Shortly after the Connecticut Supreme Court ruled, we 14 vacated the district court's decision in the federal case in 15 part, and remanded for further consideration of O'Connor's 16 substantive due process claims. 17 defendants' res judicata argument, concluding that it had not 18 been sufficiently presented to the district court. 19 Pierson, 426 F.3d 187, 194-95 (2d Cir. 2005). 20 We declined to reach the O'Connor v. Following our remand, the district court granted the 21 defendants' motion for summary judgment on O'Connor's substantive 22 due process claims on the ground that in light of the state court 23 decision, they were barred by the doctrine of res judicata. 24 O'Connor v. Pierson, 482 F. Supp. 2d 228 (D. Conn. 2007). 25 The plaintiff appeals. We affirm. 3 BACKGROUND 1 2 On January 26, 2000, O'Connor brought this action in 3 Connecticut Superior Court, Judicial District of Hartford, 4 against the Wethersfield Board of Education, members of the Board 5 in their official capacities, and Lynne B. Pierson, the 6 Superintendent of Schools, in both her individual and official 7 capacity. 8 January 26, 2000). 9 that the defendants had acted unlawfully by conditioning his O'Connor v. Pierson, No. CV-595721-S (Conn. Super. Ct. O'Connor, a public-school teacher, alleged 10 return to work following administrative leave on his agreement to 11 undergo a psychiatric examination and to release all of his 12 medical records to the defendants. 13 conditions violated his rights under both the United States 14 Constitution and the Constitution of the State of Connecticut.1 15 He also asserted state common-law claims for negligent and 16 intentional infliction of emotional distress, invasion of 17 privacy, and intentional interference with beneficial and 18 contractual relations. 19 United States District Court for the District of Connecticut on 20 the basis of federal question jurisdiction arising out of He contended that these The defendants removed the action to the 1 These state and federal constitutional claims were later amended to clarify that they were brought under the Due Process Clause. They were ultimately construed by the district court as assertions that the defendants had violated O'Connor's rights to both procedural and substantive due process. See O'Connor, 482 F. Supp. 2d at 229. O'Connor has not challenged the district court's interpretation. 4 1 O'Connor's assertion of federal constitutional claims. 2 U.S.C. § 1441. 3 See 28 In February 2001, Magistrate Judge Donna F. Martinez 4 filed a Recommended Ruling in the removed case, concluding that 5 summary judgment should be granted in favor of the defendants on 6 the federal constitutional claims and that the court should 7 dismiss the pendent state law claims without prejudice. 8 U.S.C. § 1367(c)(3). 9 adopted the magistrate judge's recommendation in part, dismissing 10 O'Connor's federal procedural due process claim but declining to 11 dismiss his federal substantive due process claims and deferring 12 decision on that claim pending further briefing. 13 fact that a federal claim remained before it, the district court 14 declined to dismiss the pendent state law claims. 15 482 F. Supp. 2d at 229. 16 See 28 The following month, the district court In light of the See O'Connor, In June 2001, O'Connor initiated a second action in 17 State Superior Court against the Wethersfield Board of Education. 18 O'Connor v. Wethersfield Bd. of Educ., No. CV-01-0808376-S (Conn. 19 Super. Ct., June 11, 2001); see also O'Connor, 482 F. Supp. 2d at 20 229. 21 removed, action, asserting many of the same state-law causes of 22 action along with several new ones. 23 no claims under federal law and was therefore not subject to 24 removal on that basis. 25 26 It was based on the same facts as the first, previously The second action contained O'Connor, 482 F. Supp. 2d at 229. Later that year, the Board unsuccessfully moved in state court to dismiss the pending state-court action based on 5 1 the pendency of this case in federal court. 2 Wethersfield Bd. of Educ., 34 Conn. L. Rptr. 621, 621, 2003 WL 3 21299644, at *1, 2003 Conn. Super. LEXIS 1581, at *1 (Conn. 4 Super. Ct. May 20, 2003) (unpublished opinion) (discussing denial 5 of the motion to dismiss in 2001). 6 in the state-court action were dismissed by the trial court in 7 its decision on a motion for summary judgment by the defendants, 8 Mem. of Decision on Def's Mot. for Summary Judgment, O'Connor v. 9 Wethersfield Bd. of Educ., CV-01-0808376-S (Conn. Super. Ct., 10 July 7, 2003), three claims remained: 1) tortious invasion of 11 privacy, 2) intentional infliction of emotional distress, and 3) 12 a statutory claim based on Conn. Gen. Stat. § 31- 51q, which 13 prohibits employers from disciplining or discharging employees in 14 retaliation for exercising their right to free speech. 15 tried to a jury beginning in September 2003. 16 See O'Connor v. After several of the claims They were In October 2003, the state-court jury returned a 17 verdict in favor of O'Connor on his claim for tortious invasion 18 of privacy, awarding him $162,500 in damages, but in favor of the 19 Board on the other two claims. 20 230 (describing state-court proceedings). 21 entered a judgment based on the verdict. 22 from the judgments against them. 23 See O'Connor, 482 F. Supp. 2d at The trial court Both parties appealed On July 5, 2005, the Connecticut Appellate Court 24 decided that the judgment for O'Connor on his invasion of privacy 25 claim was barred by the Board's governmental immunity. 26 therefore reversed the judgment of the Superior Court insofar as 6 It 1 it had been in O'Connor's favor. 2 Conn. App. 59, 877 A.2d 860 (2005). 3 the judgment against him. 4 Connecticut Supreme Court denied O'Connor's petition for 5 certification for appeal. 6 912, 882 A.2d 675 (2005). 7 Id. O'Connor v. Bd. of Educ., 90 It affirmed the remainder of On September 12, 2005, the O'Connor v. Bd. of Educ., 275 Conn. Soon after the state-court jury reached its verdict, 8 the defendants in the action that remained pending in federal 9 district court -- the one now on appeal before us -- submitted a 10 letter to the federal district court requesting a conference 11 regarding their intention to file a supplemental motion to 12 dismiss based on a theory of res judicata. 13 Supp. at 230. 14 district court order regarding case management, which required 15 the parties to request a conference before filing dispositive 16 motions. 17 O'Connor, 482 F. The letter complied with a provision in a previous O'Connor, 482 F. Supp. at 230. On December 12, 2003, the district court held a 18 conference as requested. In the course of the conference, the 19 court orally granted summary judgment to the defendants on the 20 remaining substantive due process claims. 21 order, the court explained its rationale for this dismissal. 22 O'Connor v. Pierson, No. 00 Civ. 339 (D. Conn. Dec. 17, 2003). 23 It decided, inter alia, that the Board was both justified and had 24 a legitimate interest in requesting the medical records and 25 therefore did not violate O'Connor's substantive due process 26 rights. Later, in a ruling and Id.; see also O'Connor, 482 F. Supp. 2d at 230. 7 The 1 issue of whether the state court judgment precluded a federal 2 judgment on the claims based on res judicata principles was 3 unnecessary to the resolution of the motion, and the district 4 court did not reach it. 5 On December 16, 2003, a final judgment was entered in 6 favor of the defendants on all of the federal claims against 7 them, and the pendent state claims were remanded to Connecticut 8 Superior Court. 9 judgment of the district court to this Court. 10 On January 6, 2004, O'Connor appealed the We affirmed the judgment with respect to O'Connor's 11 procedural due process claim, but vacated it as to the 12 substantive due process claims. 13 concluded that there was a genuine issue of material fact as to 14 whether, in insisting that O'Connor release his medical records, 15 the Board "acted out of spite, or to keep O'Connor from teaching 16 by whatever means necessary," such that the Board's action would 17 "shock the conscience." 18 could have served as a basis for a viable substantive due process 19 cause of action. 20 issue of res judicata because it had not been preserved for 21 appeal.2 2 O'Connor, 426 F.3d 187. Id. at 204. See id. at 200-04. We Such a finding of fact We declined to address the Id. at 194-95 ("A motion by the Board raising the We do not read our prior decision to hold, as O'Connor asserts, that the defense of res judicata had forever been waived by the defendants. And as the district court observed, "even if the Second Circuit's statement about waiver is binding, res judicata can still be applied at this stage because a court has authority to invoke the doctrine of res judicata on its own initiative, even when the defense has been waived." O'Connor, 482 F. Supp. 2d at 233; see Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993) (per curiam) ("The failure of a defendant to 8 1 claim-preclusion defense when it became available would have 2 preserved the issue for appeal; a letter asking for a briefing 3 schedule, which was not followed up, did not."). 4 On remand, the defendants filed a motion to dismiss on 5 the ground that the remaining substantive due process claims were 6 barred by the doctrine of res judicata. 7 district court granted that motion, concluding that: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 there can be no doubt that plaintiff's substantive due process claims are barred by the judgment in the state court action. To prevail on his substantive due process claims under § 1983, plaintiff must prove that the defendants' insistence on obtaining his past medical records was arbitrary and oppressive. See O'Connor v. Pierson, 426 F.3d at 204. The Board's insistence on obtaining these records, and its intent in doing so, were central to the invasion of privacy and intentional infliction of emotional distress claims that were tried in state court. O'Connor, 482 F. Supp. 2d 22 23 On March 31, 2007, the at 232; see also id. at 235. The district court again entered judgment against O'Connor. Id. at 235. O'Connor appeals. DISCUSSION 24 25 I. Standard of Review 26 "We review de novo the district court's application of 27 the principles of res judicata." 28 United States, 480 F.3d 621, 624 (2d Cir. 2007) (internal 29 quotation marks omitted). 30 II. EDP Med. Computer Sys., Inc. v. Res Judicata (or "Claim Preclusion") raise res judicata in answer does not deprive a court of the power to dismiss a claim on that ground."). 9 1 "[A] federal court must give to a state-court judgment 2 the same preclusive effect as would be given that judgment under 3 the law of the State in which the judgment was rendered." 4 v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); 5 see also Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466 ("[28 6 U.S.C. §] 1738 requires federal courts to give the same 7 preclusive effect to state court judgments that those judgments 8 would be given in the courts of the State from which the 9 judgments emerged."). Migra 10 Under Connecticut law: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 [A] former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. Claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made. The judicial doctrine of res judicata expresses no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest. The doctrine of res judicata applies as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . . [T]he appropriate inquiry with respect to claim preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . . . [T]he scope of matters precluded in the subsequent suit necessarily depends on what has occurred in the former adjudication. Joe's Pizza, Inc. v. Aetna Life and Cas. Co., 236 Conn. 863, 871- 35 72, 675 A.2d 441, 446-47 (1996)(citations, internal quotation 36 marks, emphasis, and alterations omitted). 37 extinguished by the judgment in the first action includes all 10 "The claim that is 1 rights of the plaintiff to remedies against the defendant with 2 respect to all or any part of the transaction, or series of 3 connected transactions, out of which the action arose." 4 of Envtl. Prot. v. Conn. Bldg. Wrecking Co., 227 Conn. 175, 189- 5 90, 629 A.2d 1116, 1124 (1993) (internal quotation marks and 6 alterations omitted). Comm'r 7 It is undisputed on appeal that the claims in the 8 instant case and the state-court case arose out of the same 9 transaction, or series of connected transactions, and are 10 therefore the same for purposes of the res judicata inquiry. 11 O'Connor, 482 F. Supp. 2d at 232 (relying on Conn. Bldg. Wrecking 12 Co., supra, and deciding for the defendants on the "identity of 13 claims" issue). 14 judgment in the state court was rendered on the merits; (2) the 15 parties in the state and federal actions are the same or are in 16 privity with each other; and (3) O'Connor had an adequate 17 opportunity to litigate his claims in the state court action. 18 For the reasons that follow, we conclude in the affirmative as to 19 each issue, and that the district court therefore correctly 20 decided that O'Connor's federal lawsuit was barred by the 21 judgment in Connecticut state court. 22 A. Whether the State Court Action Was Decided on the Merits 23 24 Cf. O'Connor does dispute, however, that: (1) the O'Connor argues that because the state-court action was ultimately decided on appeal in part on statutory immunity 11 1 grounds, it was not decided on the merits. 2 unhelpful.3 3 We find this argument The invasion of privacy claim was the only claim on 4 which the jury ruled in O'Connor's favor. The Appellate Court 5 reversed, however, concluding that the trial court "improperly 6 failed to set aside the verdict because the plaintiff's claim 7 against the defendant for invasion of privacy was barred by 8 governmental immunity [under Conn. Gen. Stat. § 52-557n(a)(2)]." 9 O'Connor v. Bd. of Educ., 90 Conn. App. at 63. There is divided 10 authority as to whether a judgment based on an immunity defense 11 is a judgment on the merits for the purposes of res judicata. 12 Compare Lommen v. City of East Grand Forks, 97 F.3d 272, 275 (8th 13 Cir. 1996) (finding that, under Minnesota law, a decision based 14 on governmental immunity is considered "on the merits" for the 15 purposes of res judicata) and Flores v. Edinburg Consol. Indep. 16 Sch. Dist., 741 F.2d 773, 775 n.3 (5th Cir. 1984) ("summary 17 judgment on grounds of sovereign immunity is a judgment on the 18 merits for purposes of res judicata") with Wade v. City of 19 Pittsburgh, 765 F.2d 405, 410 (3rd Cir. 1985) (stating, with 20 regards to a state-court judgment based on statutory immunity, 21 that "we predict that under Pennsylvania law, if a judgment is 22 entered before development of the merits and is based on a 3 We note also that this argument may have been forfeited, inasmuch as it is not at all clear that it was made before the district court. Because we find the argument unpersuasive in any event, we need not address whether it was forfeited. 12 1 collateral defense applicable only to the first action, claim 2 preclusion would not apply."). 3 In light of the disposition of the claim for 4 intentional infliction of emotional distress on the merits, 5 however, we do not think it matters whether the claim for 6 invasion of privacy was decided on the merits or not. 7 district court's conclusion that the substantive due process 8 claims could not be pursued under principles of res judicata 9 would have been valid even if it had been based on the state The 10 court's decision on the merits of the intentional infliction of 11 emotional distress claim alone. 12 court's opinion, for the plaintiff to succeed on his remaining 13 claim in federal court -- whether defendants violated his right 14 to substantive due process -- he would have had to prove that the 15 defendants' insistence on obtaining his past medical records was 16 arbitrary and oppressive. 17 The Board's insistence on obtaining these records, and its intent 18 in doing so, were central to the intentional infliction of 19 emotional distress claims that were tried in state court. 20 the transactional test that the Connecticut Supreme Court has 21 adopted to determine whether an action is barred by res judicata, 22 the decision on the merits in the state court against O'Connor on 23 his intentional infliction claim therefore bars his pursuit of 24 the substantive due process claims in federal district court.4 To paraphrase the district See O'Connor, 482 F. Supp. 2d at 232. 4 Under With the possible exception of the invasion of privacy claim, all of O'Connor's other claims were also indisputably 13 1 See Comm'r of Envtl. Prot., 227 Conn. at 189-90, 629 A.2d at 1124 2 (judgment in first action extinguishes all other claims "with 3 respect to all or any part of the transaction, or series of 4 connected transactions, out of which the action arose."). 5 B. Privity 6 In the state action, only the Board was a defendant. 7 In the federal action now before us, O'Connor brought suit 8 against not only the Board, but also several Board members, all 9 of whom are being sued only in their official capacities.5 10 "[O]fficial-capacity suits generally represent only another way 11 of pleading an action against an entity of which an officer is an 12 agent -- at least where Eleventh Amendment considerations do not 13 control analysis . . . ." 14 of N.Y., 436 U.S. 658, 691 n.55 (1978). 15 government entity receives notice and an opportunity to respond, 16 an official-capacity suit is, in all respects other than name, to 17 be treated as a suit against the entity." 18 473 U.S. 159, 166 (1985). Monell v. Dep't of Soc. Servs. of City "As long as the Kentucky v. Graham, We therefore agree with the district decided on the merits by the state court. Because we hold that the intentional infliction of emotional distress decision alone was sufficient to preclude the case at bar, we need not and do not reach the issue of whether the resolution on the merits of these other claims, viewed in isolation or in combination, would be sufficient to bar the present action. 5 Lynne B. Pierson, the Superintendent of Schools, was originally sued in both her individual and official capacities. However, O'Connor did not appeal the district court's 2001 ruling that Pierson is entitled to qualified immunity and therefore cannot be sued in her individual capacity. See O'Connor, 482 F. Supp. 2d at 231 n.3. Therefore, all the individual defendants are now being sued solely in their official capacities. 14 1 court that the parties in the two actions are in privity for 2 purposes of res judicata. 3 32. 4 C. Adequate Opportunity to Litigate See O'Connor, 482 F. Supp. 2d at 231- 5 Under Connecticut law, a party has not had an adequate 6 opportunity to litigate a claim, and res judicata therefore does 7 not apply, if "the court in the first action would clearly not 8 have had jurisdiction to entertain the omitted theory or 9 ground or, having jurisdiction, would clearly have declined to 10 exercise it as a matter of discretion ." 11 Rytman, 241 Conn. 24, 44, 694 A.2d 1246, 1257 (1997) (quoting 12 Restatement (Second) of Judgments, § 25 cmt.(e) (1982); internal 13 quotation marks, emphasis and parentheses omitted). 14 Connecticut courts clearly had jurisdiction to hear all the 15 claims O'Connor brought in the federal lawsuit, including those 16 brought under federal law. 17 496 U.S. 356, 367 (1990) ("Federal law is enforceable in state 18 courts . . . ."). 19 does he argue that the Connecticut courts would have declined to 20 exercise that jurisdiction. 21 Conn. Nat'l Bank v. But the See Howlett ex rel. Howlett v. Rose, O'Connor does not argue otherwise. Neither O'Connor contends instead that he did not have "a fair 22 and adequate opportunity to litigate all his claims in a single 23 lawsuit,"6 Pl.'s Br. 20, because had he brought his federal 6 O'Connor appears to cite Gladysz v. Planning and Zoning Comm'n of Town of Plainville, 256 Conn. 249, 262, 773 A.2d 300, 308 (2001), for the proposition that res judicata principles should not bar this suit if he has not had an opportunity to 15 1 claims in state court, the defendants would have removed the 2 action to federal court, and, according to O'Connor, the state 3 court claims would then have ultimately been remanded to state 4 court. 5 O'Connor cites no authority, nor are we aware of any, for the 6 proposition that the specter of removal or subsequent remand, 7 which may result in a plaintiff's state law and federal law 8 claims being heard in different courts, deprives him or her of an 9 adequate opportunity to litigate his or her claims. This might all be true, but it is beside the point. We agree 10 with the district court that O'Connor had "a fair and adequate 11 opportunity" to litigate his claims, even if they may eventually 12 have been separated from one another, some heard in state and 13 some in federal courts. 14 15 CONCLUSION We have considered the other arguments advanced by 16 O'Connor and find them to be without merit. For the foregoing 17 reasons, the judgment of the district court is affirmed. litigate all of his claims in a single lawsuit. Pl.'s Br. 20. But Gladysz, which addresses primarily the doctrine of collateral estoppel (or "issue preclusion"), stands for no such proposition. 16
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