DONALD FLAKE V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
DONALD FLAKE,
UNPUBLISHED
Plaintiff-Appellant,
v
CITY OF DETROIT, WILLIAM L. HART,
MICHAEL FALVO, DERRICK ROYAL, BETH
PETERSON, MARTIN MITTON, ALDO
CIBRARIO, DANIEL CARR, and HAROLD
GUREWITZ,
Defendants-Appellees.
No. 202443
Wayne Circuit Court
LC No. 93-315698 CZ
ON REMAND
Before: Griffin, P.J., and Taylor and White, JJ.
GRIFFIN, P.J. (dissenting).
Plaintiff was a member of a class action lawsuit that contested the constitutionality of the City of
Detroit’s mandatory random drug testing program. After the parties reached a settlement agreement,
plaintiff appeared before Judge Kaufman of the Wayne Circuit Court to complain that the proposed
settlement excluded a reinstatement remedy. Judge Kaufman advised plaintiff that reinstatement of
employment exceeded the scope of the proposed settlement. Recognizing that plaintiff would be bound
by the terms of the settlement if he remained a class member, Judge Kaufman informed plaintiff that he
could not seek reinstatement unless he opted out of the class and pursued an independent action. After
being advised of the consequences, plaintiff decided on the record not to opt out of the class.
Plaintiff stated to the court that he “would probably opt in…for the reason that I have no
representation.” (Emphasis added.)
Thereafter, Judge Kaufman ruled that anyone seeking to opt out at such a late stage would have
to file an appropriate motion establishing grounds for relief. Following plaintiff’s decision to remain a
class member, a consent judgment was entered on April 7, 1993. The judgment provided injunctive
and monetary relief and, by its terms, released “all claims which might have been made in this matter”
and was binding on all class-members who had not opted out.
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On June 3, 1993, plaintiff filed the instant lawsuit for reinstatement. Based on a constitutional
challenge to the same drug testing procedure, which was the subject of the April 7, 1993, judgment,
plaintiff contested the same acts that were at issue in the class action judgment; only the remedy of
reinstatement rather than damages was different. In lieu of an answer, defendants moved for summary
disposition. While defendants’ motion was pending before the trial court in the instant case, plaintiff filed
a motion before Judge Kaufman seeking to opt out of the class action lawsuit. Judge Kaufman denied
plaintiff’s belated motion and ruled that plaintiff is bound by the April 7, 1993, consent judgment.
Thereafter, plaintiff filed a motion in the present case asking the trial court to allow him to opt out of the
class. The trial court refused, relying on Judge Kaufman’s ruling that plaintiff is bound by the consent
judgment. The trial court then found that, by its terms, the consent judgment covered all claims that
were or could have been brought by the class members and granted defendants’ motion for summary
disposition in defendants’ favor.
Plaintiff now disputes the application of res judicata and collateral estoppel to the present action
by contesting his inclusion in the class of plaintiffs who settled the former lawsuit. However, “[c]ollateral
estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same
parties when the prior proceeding culminated i a valid final judgment and the issue was actually and
n
necessarily determined in the prior proceeding.” Porter v Royal Oak, 214 Mich App 478, 485; 542
NW2d 905 (1996), citing People v Gates, 434 Mich 146, 154; 452 NW2d 627 (1990).
I agree that plaintiff is estopped from rearguing whether he could have opted out of the class
action lawsuit. On this issue, I concur and join the following conclusion reached by the majority: “We
conclude that plaintiff cannot, in this proceeding, collaterally attack the decision made in the class action
that plaintiff was a class member.” (Majority opinion at p 4.)
Further, in the prior action, plaintiff was fully advised as to the consequences of remaining in the
class but decided to remain a class member. The lower court held that plaintiff’s postjudgment motion to
opt out of the class was untimely and properly denied. Plaintiff may not relitigate Judge Kaufman’s final
order in this collateral proceeding. Porter, supra at 485; see Nottingham Partners v Trans-Lux
Corp, 925 F2d 29 (1991).
As a class member, plaintiff is also estopped from attacking either the legality of the
comprehensive settlement or Judge Kaufman’s ruling that plaintiff could not seek the remedy of
reinstatement without opting out of the suit. Accordingly, plaintiff is bound by the consent judgment in
the class action lawsuit that released “all claims that might have been made . . .” by members of the
class contesting defendants’ drug testing policy. MCR 3.501(D)(5). Accordingly, summary disposition
pursuant to MCR 2.116(C)(7) was the correct result. See Porter, supra at 488; People v Lucas, 188
Mich App 554, 577; 470 NW2d 460 (1991).
Unlike the majority, however, I would hold that under the doctrine of res judicata the judgment
in the class action precludes plaintiff from maintaining the present lawsuit. “Michigan follows a broad
rule of res judicata which bars not only claims actually litigated in the prior action, but every claim arising
out of the same transaction which the parties, exercising reasonable diligence, could have raised but did
not.” Courtney v Feldstein, 147 Mich App 70, 75; 382 NW2d 734 (1985); see Gose v Monroe
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Auto Equipment, 409 Mich 147, 160-161; 294 NW2d 165 (1980). Curry v Detroit, 394 Mich
327, 332; 231 NW2d 57 (1975); Labor Council, Michigan Fraternal Order of Police v Detroit,
207 Mich App 606, 608; 525 NW2d 509 (1994). Res judicata applies when (1) the first action was
decided on the merits, (2) the issue in the latter case could have been resolved in the first case, and (3)
both actions involve the same parties and their privies. Eaton Co Bd of Rd Comm’rs v Schultz, 205
Mich App 371, 375-376; 521 NW2d 847 (1994); see, generally, Gose, supra. This doctrine applies
to consent judgments, Schwartz v City of Flint, 187 Mich App 191, 194-195; 466 NW2d 357
(1991), and class action lawsuits. Theisen v Dearborn, 5 Mich App 607, 619; 147 NW2d 720
(1967), remanded on different grounds 380 Mich 621 (1968).
Although the majority expressly acknowledges that a broad construction of res judicata is
appropriate, the majority nonetheless concludes that the present suit is not foreclosed because “plaintiff
could not have brought his claim for reinstatement earlier and exercised reasonable diligence.” The issue
is not whether plaintiff could have sought reinstatement by exercising reasonable diligence, but whether
class members as a collective unit could have pursued reinstatement as the desired remedy. Indeed, the
reinstatement issue could have been presented in the previous case, because plaintiff and several other
employees lost their jobs as a result of the allegedly unconstitutional strip searches.1 However, pursuant
to the consent judgment, damages were evidently chosen as the remedy which best represented the
interests of the entire class. As previously recognized by Michigan courts, class actions are motivated in
part by convenience: “For convenience…and to prevent a failure of justice, a court of equity permits a
portion of the parties in interest to represent the entire body, and the decree binds all of them the same
as if all were before the court.” Pressley v Wayne Co Sheriff, 30 Mich App 300, 318; 186 NW2d
412 (1971), quoting from Smith v Swormstedt, 57 US 288, 303; 14 L Ed 942 (1853). Similarly,
consent judgments, particularly those that resolve class action litigation, entail compromise and do not
always satisfy the purposes of the individual members of the class. Cf. United States v Armour & Co,
402 US 673, 681-682; 91 S Ct 1752; 29 L Ed 2d 256 (l971).
In summary, the prior class action involved the same drug testing procedure that plaintiff
presently contests. Although the issue of reinstatement was not litigated in the prior suit, plaintiff’s
“claim” for reinstatement, which supposedly differentiates the two causes, is in fact not a new “claim”
but merely an equitable remedy. Rowry v Univ of Michigan, 441 Mich 1, 9; 490 NW2d 305 (l992);
Keys v Hopper, 207 Mich App 504, 507; 525 NW2d 905 (1994). By remaining in the class and
accepting a portion of the comprehensive $950,000 monetary settlement in lieu of his desired remedy of
specific performance, res judicata bars plaintiff’s attempt to seek the remedy in this subsequent
proceeding. See King v South Central Bell Telephone & Telegraph Co & Communication
Workers, AFL-CIO, 790 F2d 524, 528-531 (1986); Manji v New York Life Ins Co, 945 F Supp
919 (1996); Nottingham Partners v Dana, 564 A2d 1089, 1106 (1989); see, generally, American
Pipe & Construction Co v Utah, 414 US 538, 548; 94 S Ct 756; 38 L Ed 2d 713 (l974).2 Plaintiff
cannot have it both ways; he cannot as a class member benefit from the consent judgment but not be
bound by its terms. The question of preclusion does not depend on whether “justice was done in the
first suit,” but on whether the merits of the prior action had been considered and decided. Banks v
Billups, 351 Mich 628, 635; 88 NW2d 255 (l958).
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Finally, it appears that plaintiff has not satisfied a condition precedent to bringing the present
action. As the Supreme Court held in Stefanac v Cranbrook Educational Community (After
Remand), 435 Mich 155, 163-164; 458 NW2d 56 (1990), tender of consideration received is a
condition precedent to the right to repudiate a settlement agreement. Plaintiff’s complaint contains no
allegation that he complied with this condition precedent.
For these reasons, I respectfully dissent. I would affirm.
/s/ Richard Allen Griffin
1
But see Middlebrooks v Wayne Co, 446 Mich 151; 521 NW2d 774 (1994).
2
Cooper v Federal Reserve Bank of Richmond, 467 US 867; 104 S Ct 2794; 81 L Ed 718 (1984),
is clearly inapplicable to the present case. In Cooper, the issue was whether a class action regarding an
employer’s general pattern of discrimination barred class members from bringing suits alleging a specific
discriminatory conduct. Because a finding of no systematic discrimination does not address isolated
incidents and the trial court had “pointedly refused to decide the individual claims…”, the Court held
that res judicata did not bar suits alleging specific instances of discriminatory conduct. Here, on the
other hand, plaintiff contests the exact same acts that were at issue in the class action suit. Plaintiff
simply seeks a different remedy that is barred by the terms of the settlement.
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