Commercial Litigation and Arbitration

Res Judicata — Sua Sponte Invocation

There were parallel proceedings in state and federal court at the time the defense moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(3) (improper venue) in Busch v. Robertson, 2007 U.S. Dist. LEXIS 40689 (N.D. Tex. June 5, 2007). While the motion was pending, judgment was entered in favor of two of the defendants in the state court proceeding. Because that occurred after the dismissal motion had been filed, res judicata was not asserted in the motion. The question for the Busch Court was whether it could raise the issue of res judicata sua sponte. District Judge A. Joe Fish held that two limited circumstances exist in which a trial court may do so:

First, res judicata may be raised ... sua sponte where both actions were brought in courts of the same district. Second, res judicata may be applied sua sponte when all relevant data and legal records are before the court and "the demands of comity, continuity in the law, and essential justice mandate judicial invocation of res judicata.

Held, the second circumstance obtains, and the plaintiff is barred by the intervening state court judgment from pursuing the federal action against two of the defendants, notwithstanding the defense's failure to raise the issue.

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