DONALD FLAKE V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
DONALD FLAKE,
UNPUBLISHED
December 5, 1997
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.
PER CURIAM.
Plaintiff appeals the circuit court’s order granting summary disposition in favor of defendants.
On plaintiff’s initial appeal, this Court affirmed on statute of limitations grounds. Flake v City of
Detroit, unpublished opinion per curiam, issued December 19, 1995 (Docket No. 169492). In lieu of
granting leave to appeal, the Supreme Court vacated and remanded to this Court for consideration of
the remaining issues plaintiff raised.1 Flake v City of Detroit, 454 Mich 889 (1997). We now
reverse.
The facts viewed in a light most favorable to plaintiff are that in 1988 the Detroit Police
Department (DPD) implemented mandatory drug-testing for police officers. On August 2, 1989
plaintiff, a Detroit police officer, was ordered to and did submit to a drug test which included a strip
search. Plaintiff tested negative. On May 2, 1990 plaintiff was given notice to submit to a second drug
test. Plaintiff reported to the test site, was strip-searched, and produced a urine sample, which was
sealed by a technician. However, plaintiff refused to hand over the sample because he believed that the
strip-search violated his constitutional rights. Plaintiff was suspended that evening,2 and discharged on
June 6, 1990, for refusing to complete the drug-screening procedures. After plaintiff exhausted internal
appeals, the Board of Police Commissioners upheld his dismissal in April 1992.
-1
In the interim, in July 1989 a class action lawsuit was filed against the City of Detroit challenging
the constitutionality of the strip-searches.3 In May 1991, the circuit court in the class action case ruled
from the bench that the DPD’s strip-searches were unconstitutional. In June 1991, the class was
certified. The class was composed of all sworn members of the DPD subjected to urinalysis drug
testing between 1988 and 1991, approximately 4800 officers. Notices to the class were distributed in
late 1991.4 Following settlement negotiations, the parties reached a tentative agreement, which was
placed on the record on December 10, 1992.
In March 1993, plaintiff received notice of the class action for the first time, in the form of a
memo stating that officers could appear at an April 7, 1993 settlement conference to state their support
or opposition to the terms of the settlement.5 Plaintiff appeared without counsel at the April 7, 1993
conference, at which time the circuit court heard from several police officers and heard the motion to
grant the consent judgment. The transcript of that hearing reveals that the circuit court told plaintiff that
reinstatement is “not dealt with in this case” and “if you want to try to be reinstated . . . you need to opt
out.” Further, defendant’s counsel stated at the hearing that plaintiff’s request for reinstatement “is a
whole different ball game”. The circuit court later repeated that reinstatement “is not dealt with in this
lawsuit.” Plaintiff did not state that he decided not to opt out.6 The colloquy that took place between
plaintiff and the court regarding opting out was hypothetical and plaintiff emphasized above all that he
wanted to pursue a claim for reinstatement.7 The circuit court stated at the conclusion of the hearing:
THE COURT: The first ruling that seems somewhat clear to me is that anybody who
claims a defective notice in terms of the class certification that occurred during the last
six months of June [sic] of ’91 either has t try to opt out and use the procedures
o
available for that, and that’s filing an appropriate motion, or if they still wish to try to
seek their fair share of the settlement, they can no longer seek to opt out.
The circuit court did not, as the dissent states, rule that plaintiff could not seek the remedy of
reinstatement without opting out of the suit. While the issue was discussed between the court and the
attorneys, the court made no ruling.8 The court entered the consent judgment on the same date the
hearing was held, April 7, 1993.
On June 3, 1993 plaintiff filed the instant case in propria persona,9 alleging that his dismissal in
June 1990 for refusing to cooperate with an unconstitutional drug test and drug-testing procedures
violated his rights to engage in symbolic speech, denied him due process and equal protection, and
deprived him of his property interest in his employment. Plaintiff’s complaint alleged that defendant
terminated his employment without legal basis or justification, and requested reinstatement, among other
things.
Defendant filed a motion for summary disposition in lieu of an answer on June 25, 1993.
Plaintiff had, in the interim,10 filed a motion to opt out in the class action case. In the instant case,
defendant’s motion was dismissed pending decision on plaintiff’s motion to opt out. Plaintiff’s motion to
opt out was denied by order dated August 24, 1993 and his motion for reconsideration was denied on
September 8, 1993. Defendant then renewed its motion for summary disposition in the instant case,
arguing that res judicata barred plaintiff’s claims. In response to defendant’s motion, plaintiff argued that
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he was in a unique class of one, in that he was the only officer discharged who had not been found to
have used illegal drugs, and was the only officer who refused to turn over a urine sample he had
produced based on his belief in the unconstitutionality of the procedure. Plaintiff also filed a motion for a
declaratory judgment that he was not covered by the consent judgment. The circuit court entered an
order granting defendant’s motion for summary disposition and denying plaintiff’s motion for a
declaratory judgment on October 4, 1993. This appeal ensued.
II
The sole issue is whether res judicata bars plaintiff’s claims. We conclude that plaintiff cannot,
in this proceeding, collaterally attack the decision made in the class action that plaintiff was a class
member. The question remains, however, whether res judicata bars plaintiff’s individual claim for
reinstatement. We conclude that that claim is not barred.
Res judicata bars both claims actually litigated in a prior action and those claims arising out of
the same transaction which plaintiff could have brought, but did not. Schwartz v City of Flint, 187
Mich App 191, 194; 466 NW2d 357 (1991). The doctrine applies to consent judgments as well as to
judgments derived from contested trials. Id.
The prior class action was a facial challenge to the constitutionality of the City of Detroit’s
mandatory random drug-testing program, which included strip-searching. The class action sought
injunctive relief to end the City’s policy of testing police officers and to recover damages on behalf of
the approximately 4800 officers, sergeants and lieutenants who were required to submit to random
drug-testing. As part of the consent judgment, the City was enjoined from conducting strip-searches as
part of any random drug-testing program unless it had reasonable individualized suspicion of
wrongdoing. The City also agreed to pay $975,000 to cover all claims for damages, interest, attorney
fees and costs. The monetary relief was deemed final, non-appealable and binding on all class members
except those who had opted out.
Plaintiff’s individual suit requested reinstatement. Plaintiff argues, and defendants do not
dispute, that the class action complaint did not seek as relief reinstatement for any class member.11 The
consent judgment in the class action did not mention reinstatement. Nor does defendant dispute
plaintiff’s assertion that he was the only officer terminated whose drug test results were negative.
Defendant argues that plaintiff could have raised his reinstatement claim in the class action. We cannot
agree. As observed by Judge Caprathe in his dissent in this Court’s initial decision in this case, Flake,
supra, plaintiff did not receive notice of the class action until March of 1993.
Res judicata bars claims arising out of the same transaction which the parties, exercising
reasonable diligence, could have raised but did not. Sprague v Buhagiar, 213 Mich App 310, 313;
539 NW2d 587 (1995). In the instant case, plaintiff raised his claim at the first opportunity, i.e., the
April 7, 1993 hearing, given that he received notice of the class action in March 1993. The circuit court
did not allow plaintiff to inject his claim for reinstatement at that time and entered the consent judgment
on that date. We conclude that plaintiff could not have brought his claim for reinstatement earlier and
exercised reasonable diligence.12
-3
Nor has defendant shown that plaintiff’s reinstatement claim was actually litigated. In Cooper v
Federal Reserve Bank of Richmond, 467 US 867, 880-881; 81 L Ed 2d 718; 104 S Ct 2794
(1984), the United States Supreme Court held that a judgment in a class action determining that an
employer did not engage in a general pattern or practice of racial discrimination against the certified
class of employees did not preclude a class member from maintaining a subsequent civil action alleging
an individual claim of racial discrimination against the employer, where the district court in the class
action had not decided the individual claims of the petitioners at issue.13 See also, Cameron v Tomes,
990 F2d 14, 17-18 (CA 1, 1993)(relying on Cooper, supra, in affirming the district court’s
determination that a prior class action brought by prisoners regarding conditions of prison confinement
did not bar the plaintiff’s individual claims, noting that the issues peculiar to the plaintiff were not litigated
in the prior class action.)14
The cases the dissent cites are distinguishable from the instant case. In King v South Central
Bell Telephone & Telegraph, 790 F2d 524 (CA 6, 1986), the plaintiff brought suit against her
employer and her union, the Communication Workers of America (CWA), alleging that her
reinstatement to a lower paying job when she returned to work after a maternity leave violated Title VII,
42 USC 2000e et seq. The district court granted the defendants’ motions for summary judgment,
concluding that the plaintiff’s action was barred by the settlement of a prior class action the CWA had
brought against the defendant employer, which alleged that the employer’s policies and practices with
respect to maternity benefits discriminated against its female employees, in contravention of Title VII.
The district court held that the employer violated Title VII by denying guaranteed reinstatement to
former or equal positions to its female employees on maternity leave, and a settlement agreement was
reached settling all claims against the employer relating to maternity leave of absence policies subject to
the class action. Id. at 525-526.
As in the instant case, the plaintiff in King first became aware of the class action when she
received documents relating to the proposed class settlement. However, unlike the instant case, the
plaintiff did not contest that she was a class member, participated in the class action, and received
money pursuant to its settlement. The issue in King, unlike the instant case, was whether the plaintiff
could assert claims she failed to bring in the class action in a subsequent individual action. Included in
the documents the plaintiff had received was a claim application, which the plaintiff completed and
pursuant to which she received money under the consent judgment. The plaintiff’s claim application
referred only to the eight-day delay between her request to return to work and the date on which the
employer actually returned her, and did not claim lost wages as a result of being returned to the lower
paying job, although she did mention the lost wages claim and loss of seniority in a letter of objection to
the court. Id. at 527. On appeal from the district court’s grant of summary judgment for the defendant,
the plaintiff argued that her action should not have been barred on res judicata grounds because the
notice she received was constitutionally deficient and she was inadequately represented by the class
representative. The United States Court of Appeals for the Sixth Circuit rejected both arguments,
noting:
The ‘Important Notice’ [included in the packet of documents the plaintiff received
relating to the proposed class settlement] unambiguously states that ‘if you were . . .
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delayed in reinstatement to your job when you requested to return to work form your
maternity leave, you may be owed a settlement from the company.’ King’s claim that
Bell failed to reinstate her to her former job as frame attendant clearly falls within this
language. Moreover, the notices and proposed settlement agreement are replete with
warnings that failure to file a claim may result in the loss of a right of action. Even if it
can be argued that the notice was somewhat ambiguous, King could not opt out
because the action did not include that privilege. The most she could do was object to
the decree and she did.
King understood the notice to the extent that she took advantage of the opportunity to
file objections, in the form of a letter to the court. Proof that the trial court considered
King’s letter is the fact that the proposed settlement agreement was revised to include
the seniority claim that King, along with other class members, brought to the court’s
attention by way of objections.
We, therefore, conclude that the notice King received regarding the proposed class
action settlement was not constitutionally deficient. It certainly advised her of her rights
and comported with due process requirements. [Id. at 530.]
In contrast, in the instant case, plaintiff sought a remedy, reinstatement, which was not part of the class
action.
Manji v New York Life Ins Co, 945 F Supp 919 (D SC, 1996), is also distinguishable. In
that case, the defendants in their motion for summary judgment argued that res judicata barred the
plaintiffs from pursuing the instant class action in federal court, separate from a nationwide class action in
New York state court (the Willson action) against the defendant by three million current and former
New York Life policy owners. The defendants argued that the plaintiffs were given several
opportunities to opt out of Willson but failed to do so.
Unlike the instant case, the plaintiffs in Manji received “all required notices of the class action
pending in New York prior to August 30, 1995,” which “fully described how the plaintiffs could opt
out of the class action and the consequences of failing to do so by October 31, 1995.” The plaintiffs
forwarded these notices to their attorney, who advised counsel in the class action that a separate action
had been filed before receipt of notice of the class action. Counsel in the class action responded and
asked whether the letter “constitutes your clients’ decision to opt-out” of the class action settlement. Id.
at 921. The plaintiffs’ counsel then sent another letter stating that the plaintiffs’ decision to opt-out is
“dependent on which relief will be granted in that settlement,” and asked to be advised in that regard.
Counsel in the class action responded that he could offer no advice regarding the relief that would be
afforded. Neither the plaintiffs nor their counsel contacted New York Life regarding opting-out of
Willson after this letter. Id.
Unlike the instant case, the plaintiffs in Manji received notice of the class action and received
notice that in order to not be bound by the class action settlement they had to opt-out, at least several
months before the opt-out deadline date. The plaintiffs failed to opt-out. In the instant case, plaintiff
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appeared in court at the first opportunity he could do so, on April 7, 1993, given that he had received
his first notice of the class action in March 1993. At that time, he sought to inject the issue of
reinstatement and the court expressly held that reinstatement was, and would not be, an issue in the
case.
The remaining cases cited by the majority do not involve situations where the court presiding
over the class action expressly declined to include in the class action the claims raised by the plaintiff.
See n 10, supra.
Under these circumstances, we agree with Judge Caprathe’s dissent in the initial decision of this
case that the prior adjudication should only have preclusive effect as to the issues actually litigated in the
class action. We conclude that plaintiff’s individual claim seeking reinstatement should not have been
dismissed, and remand to allow plaintiff to pursue that claim.15
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Clifford W. Taylor
/s/ Helene N. White
1
On remand, Judges Taylor and White were substituted for the former visiting judges. They did not
participate in this Court’s previous decision.
2
The following day he took his sealed urine sample for testing to an independent laboratory, which
refused to test that sample but tested a sample plaintiff produced. The results were negative.
Apparently, plaintiff submitted an affidavit that stated that he was drug free on May 21, 1990, he was
not a drug user and was not concerned that he would fail the drug test, and that the reason he went to
the independent drug-testing facility was to establish that he was drug free. [The affidavit is not in the
lower court record, but is referred to in plaintiff’s brief in opposition to defendant’s motion for summary
disposition, filed July 22, 1993.]
3
Brown v City of Detroit, Wayne Circuit Court No. 89-917823 CL.
4
Officers received notice with their November 27, 1991 paychecks; retired officers received notice
with their December 2, 1991 pension checks; notices were posted in police precincts and o
ther
department areas in December 1991; and former employees were sent notices at their last known
addresses by first class mail.
5
As noted in the dissenting opinion to this Court’s initial decision, plaintiff took and passed a polygraph
exam regarding when he first received notice of the action.
-6
6
We thus cannot agree with the dissent’s statement to the contrary.
7
When plaintiff addressed the court, the following exchange occurred:
MR. FLAKE: Well, Your Honor, as you can see there, I have several pieces of
documentation. The first piece that you’re examining now is the results of the drug test
that I took approximately 13 hours after my dismissal from the department. I realize
that my actions to refuse to comply with that order, which I deemed Unconstitutional,
because I deemed the procedure in which the samples were taken unconstitutionally, I
would be questioned and that I will be suspected of a drug user. So, therefore, I got
that test run. And as you can, the results there are negative.
Now, at the time of my suspension, I clearly stated that by reasons for refusing to
complete or comply with the testing procedure, was based on constitutionality. I
received a letter in the month of March stating that there was a class action suit on my
behalf concerning this issue. I was very surprised, to say the least, to learn about this
class action suit, since I was not notified by the attorney’s office prior to March of this
issue. I was not notified by my union who represent me and I fail –
THE COURT: I’m sorry. You’re saying that your first notice of this was the notice of
this proceeding.
MR. FLAKE: Yes. In March of ’92 – I mean ’93, sir.
THE COURT: Okay. Go ahead.
MR. FLAKE: And I fail – as I read the letter, it stated that the procedure itself, which I
was dismissed from the department for not completing, was, in fact, unconstitutional.
THE COURT: Let me ask you this, sir. I assume Mr. Brewer for the plaintiff and Mr.
Ashworth for the defendant is going to show me what notice was given to the class
members initially and that it was proper. If you had received the notice that went out,
that notice would have told you that you have the right to either opt in or opt out of this
litigation. By opting – to opt out, you would have to do something affirmatively. To opt
in, you would have to do nothing. At this – and my question’s going to be, what would
you have opted to do, and I’ll tell you what the ramifications of your decision is before
you make this decision.
If you chose to opt out and I let you opt out at this time, I’m not sure I’m going to, but if
I did allow you to opt out at this time, the result would be that you would not share in
the recovery in this case in any way and you would have the right, if you wanted, to file
your own lawsuit and go through all the proceedings that would be required with
respect to that. I can tell you, this is as very complicated case and I don’t know
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whether you would find a lawyer based upon the damages you may have suffered to
take it, but you would have the right to do that.
On the other hand, even though you may not have gotten notice, at least you say you
didn’t get notice initially, you did get notice of this hearing and you still have a full right, if
you opt in, to ask that you receive a greater share of the money available than others
based upon your peculiar circumstances.
So do you understand what I’m saying about opting in or opting out?
MR. FLAKE: I believe, Your Honor.
THE COURT: Based on what you know now, is it your desire to opt in or opt out?
MR. FLAKE: Based on the statements that you just made, I would probably opt in
because I – for the reasons that I have no representation.
THE COURT: Is your concern here that the total amount of the settlement is not
enough or that your share should be more than the average of all the members because
of your peculiar circumstances?
MR. FLAKE: My concern is that I wish to have my position restored. I wish to have
my record exonerated.
THE COURT: That’s not dealt with in this case, Mr. Brewer?
MR. BREWER: No, Your Honor.
MR. FLAKE: The reason why I’m saying this, Your Honor –
THE COURT: No, I understand what you’re saying. I’m only saying that if you opt in,
the only benefit you’ll get from this case personally is to what extent you receive money
as the result of your claim in this case. If the injunctive relief agreed to is only future
orientated, it deals nothing with the past, and, therefore, if you want to try to be
reinstated based on this, you need to opt out. Would you disagree with that, Mr.
Brewer?
MR. BREWER: No, Your Honor, I think that that’s the correct procedure. If the
people want to pursue individual damages actions, they should or need to opt out.
THE COURT: Can he opt in but still file a lawsuit for reinstatement based on this?
MR. BREWER: I believe so, Your Honor. This case was and is a facial challenge to
the drug testing and strip searching that occurred, it was brought as that and it was
litigated as that –
-8
THE COURT: Yeah, but doesn’t the granting of monetary relief deal with all damages
and that you could have, in this case, asked for individual injunctive relief with respect to
getting jobs back if you had wanted to.
MR. BREWER: That’s possible. And also too, the City, I expect frankly, will argue
that when consent judgment is entered that should be Res Judicata as the law claims.
THE COURT: And I suspect Mr. Ashworth would probably argue that I should not
allow you to opt out at this time.
MR. ASHWORTH: Well, that’s true. And this is a whole different ball game that’s he
raising with this issue.
THE COURT: Okay. What else would you like to tell me, sir?
MR. FLAKE: Well, basically from my understanding of the letter that I received, there
is a constitutional issue here, whether the procedure was constitutionally legal. Now the
City claims that the procedure was constitutional and legal and took it to court; they
lost that court case. I fail to understand why I particularly, during this litigation process,
was dismissed from the department for simply standing up for my constitutional rights.
THE COURT: I hear what you’re saying and I guess all I can say in response is this.
That at this late stage, the file in this case, on its face, shows that all class members were
given adequate notice of the certification of the class and there was a time limit to opt
out. Six of the – only six people chose to opt out.
If, in fact, you can prove that you didn’t receive the notice you – that the file says you
got, you could probably get an attorney and file a case and try to say that you should
not be bound by this result because you didn’t get notice. [Defendant,in fact, followed
this course.] And it’s a tricky matter because you’d have to not share in this, because
once you share in any part of this, it would, I think, be an implied admission that you’re
willing to be bound by the law with respect to the resolution of this case.
I hear what you’re saying and anything else you want to say you can, but its really up to
you and any counsel you get from your attorney how you proceed with the main issue
you have here, which is reinstatement, which is not dealt with in this lawsuit.
MR. FLAKE: Okay. As far as an attorney, I do not have one, I cannot afford one,
that’s why I’m appearing myself before this Counsel.
I would like to ask the individuals in charge of notification what notification did they
state that I received earlier.
-9
THE COURT: After everybody else – after all the class members have a chance to
talk, I’m going to require that the attorneys tell me exactly what notices were given and
how it complied with the law. So that will occur.
MR. FLAKE: Okay. I would also like to point out the fact that I served the
department and my record was distinctive. I believe in the justice system, I believe in
the word “justice,” and that’s why when I felt my constitutional rights were being
violated, I was obligated to defend those constitutional rights and that’s what I was
doing when I refused to comply the drug testing procedure.
THE COURT: Okay. Thank you, sir, your statement is part of the record and certainly
will be considered by me before I make any final decision.
8
See note 7.
9
This case was assigned to the judge to whom the class action was originally assigned. The class action
had been reassigned to the Chief Judge during its pendency and before the April 7, 1993 hearing.
10
The precise date plaintiff filed his motion to opt out of the class action suit is unclear, as the record of
the class action is not before us. However, plaintiff’s answer to defendant’s summary disposition
motion, filed on July 22, 1993, argued that plaintiff’s motion to opt out was pending.
11
While the record in the class action case is not before us, it appears that reinstatement was not sought
in that case because the class representatives were officers who submitted to the test and so were not
discharged, and had no need for reinstatement and back pay, or officers who were discharged for failing
the test and did not seek reinstatement. Plaintiff asserts that he was discharged for refusing to take the
test on constitutional grounds, and that he submitted his urine for testing elsewhere, and tested negative.
12
Under these circumstances, we cannot agree with the dissenting opinion to the extent that it implies
that plaintiff knew of the class action before March 1993, decided on the record not to opt out, and did
not file a timely motion to opt out before the consent judgment was entered on April 7, 1993. In fact,
plaintiff first appeared before the court on April 7, 1993, at the hearing on the motion to grant the
consent judgment. This was plaintiff’s first opportunity to appear, i.e., the notice he had received of the
class action in March 1993 stated that officers could appear at the April 7, 1993 settlement conference
to state their support or opposition to the terms of the settlement At the hearing, plaintiff informed the
court that he had only received notice of the class action in March 1993. The circuit court entered the
consent judgment on that same date, April 7, 1993. It thus would have been impossible for plaintiff to
file a motion to opt out before the consent judgment was entered, as the dissent states.
Clearly, plaintiff was not permitted to bring his reinstatement claim as part of the class action.
13
The Supreme Court noted:
-10
It is also suggested that the District Court had a duty to decide the merits of the
individual claims of class members, at least insofar as the individual claimants became
witnesses in the joint proceeding and subjected their individual employment histories to
scrutiny at trial. Unless these claims are decided in the main proceeding, the Bank
argues that the duplicative litigation that Rule 23 was designed to avoid will be
encouraged, and that defendants will be subjected to the risks of liability without the
offsetting benefit of a favorable termination of exposure through a final judgment.
This argument fails to differentiate between what the District Court might have done and
what it actually did. The District Court . . . pointedly refused to decide the individual
claims of the Baxter petitioners. [467 US at 881.]
Similarly, in the instant case, the circuit court pointedly refused to decide the reinstatement claim.
14
The Cameron court noted:
We agree with the district court that the state has made no showing that Cameron’s
claim is barred by res judicata. Cases on res judicata, ample in many areas, are fairly
sparse where preclusion of distinctive individual claims is urged based upon an earlier
class action judgment. But in Cooper v. Federal Reserve Bank of Richmond, 467
U.S. 867, 880, 104 S.Ct. 2794, 2801-02, 81 L.Ed.2d 718 (1984), the Supreme
Court confirmed what common sense would suggest: a class action judgment—
there, in a discrimination case—binds the class members as to matters actually
litigated but does not resolve any claim based on individual circumstances that
was not addressed in the class action. Id. at 880-82, 104 S.Ct. 2801-02.
Under Cooper, we think that res judicata plainly does not apply in this instance. The
several law suits and years of proceedings embraced by Langton . . . were concerned
with fairly general issues (e.g., physical plant, sequestration, equality of treatment) and
with specific claims of individuals other than Cameron. . . .
This case, by contrast, rests primarily on Cameron’s claims that his unusual situation
requires special accommodations: specifically, that his physical disability affects his
need for outside medical visits, freer movement within the Treatment Center, and
separate bunking arrangements adapted to his handicap . . . . There is no suggestion
by the state that these issues peculiar to Cameron were actually litigated in the
Langton case.
Thus, the state’s claim reduces itself to the argument that Cameron had to litigate those
issues in the earlier cases or forever hold his peace. To describe this claim is to refute it:
class action institutional litigation often addresses general circumstances, not the
distinctive plight of someone claiming special needs or status. To the extent individual
-11
concerns were addressed in Langton, Cameron is not even mentioned in the district
court decision. . . . In theory, claim preclusion is possible where an earlier class action
claim is essentially the same as a later action for individual relief, and issue preclusion is
possible where a fact resolved in the class action proves important in the later action.
See Cooper, 467 U.S. at 880-82, 104 S.Ct. at 2800-02. No such overlap has been
shown here. [990 F2d at 17-18. Italics in original. Emphasis added.]
15
We note in response to the dissent’s argument under Stefanac v Cranbrook Educational
Community (After Remand), 435 Mich 155, 163-164; 458 NW2d 56 (1990), that the record does
not support the assertion that plaintiff received settlement monies. Further defendant does not claim that
plaintiff violated the tender-back rule. In fact, if plaintiff received money, it would have been after this
case was filed and his motion to opt out of the class action was denied. Thus, it was impossible for
plaintiff to have tendered consideration, if any, prior to filing suit.
-12
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