plaintiff's acquittal on the criminal charges, defendants violated an order of the Lancaster County Court of Common Pleas and failed to expunge his arrest record. Most critically, Haefner II lodged allegations not made in Haefner I: it contended that on February 6, 1981, while investigating defendants' failure to expunge his arrest record, plaintiff was verbally and physically abused. This same incident forms the basis of the current action.
Plaintiff, opposing defendants' motion for summary judgment, argues primarily that Haefner II cannot support a res judicata bar to this action because our disposition of that case did not amount to a final judgment "on the merits".
Specifically, plaintiff asserts that because our order of dismissal in Haefner II did not state that it was "with prejudice" it thereby was entered "without prejudice" pursuant to Fed. R. Civ. P. 41(b). Hence, plaintiff claims, we neither considered nor addressed the merits of Haefner II and the res judicata requirement of a judgment "on the merits" has not been met.
Resolution of whether our dismissal of Haefner II was "on the merits" is assertedly governed by Costello v. United States, 365 U.S. 265, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961). It held that a dismissal based upon plaintiff's failure to comply with a "precondition requisite" does not create a res judicata bar to a subsequent suit. Id. at 285. Therefore, when a complaint fails to meet a "condition for filing suit" its dismissal does not operate as an adjudication on the merits. Truvillion v. King's Daughters Hospital, 614 F.2d 520, 524 (5th Cir. 1980). Hence, such a dismissal cannot support a res judicata bar. Accord, McCarney v. Ford Motor Co., 657 F.2d 230, 233-34 (8th Cir. 1981) (Prior dismissal for lack of standing does not erect a res judicata bar); Johnson v. Boyd Richardson Co., 650 F.2d 147, 148-49 (8th Cir. 1981) (Failure to name a proper party does not erect a res judicata bar).
Haefner II was not dismissed, however, for any failure to comply with a jurisdictional "precondition requisite". Rather, that case was dismissed on the strength of the res judicata bar created by Haefner I's dismissal as being untimely. Such a dismissal in Haefner I created a res judicata bar to the second suit by this plaintiff. Chang v. Northwestern Memorial Hospital, 549 F. Supp. 90, 95 (N.D. Ill. 1982); Wachovia Bank & Trust Co. v. Randell, 485 F. Supp. 39, 42 (S.D. N.Y. 1979). Accord, Cemer v. Marathon Oil Co., 583 F.2d 830 (6th Cir. 1978).
Although the "outer periphery" of Haefner II was not "exactly co-extensive" with Haefner I, res judicata nevertheless barred the second suit because the "core complaint" of the two suits was the "same". Haefner II, 543 F. Supp. at 267. See, Poe v. John Deere Co., 695 F.2d 1103, 1106 (8th Cir. 1982) (Res judicata arises even though the parameters of the second suit do not track those in the first suit with "mathematical precision".) We also held in Haefner II that plaintiff could not litigate the events of February 6, 1981, in that suit because he was aware of them prior to March 9, 1981, the date upon which he filed Haefner I. Moreover, plaintiff was also aware of the now plead February 6, 1981 events prior to the date of Haefner I's dismissal. See, Haefner II, 543 F. Supp. at 268, citing, Blair v. City of Greenville, 649 F.2d 365, 368 (5th Cir. 1981) and Crowe v. Leeke, 550 F.2d 184, 187 (4th Cir. 1977). Plaintiff may not now attempt to relitigate a claim which could have been litigated in Haefner I and which was specifically plead in Haefner II.
Simply stated, Haefner I's dismissal as being time-barred operated as an adjudication on the merits and foreclosed plaintiff's complaint in Haefner II. The current action merely rehashes allegations which we previously held are barred by the doctrine of res judicata. Even if we accepted plaintiff's current assertion that Haefner II's dismissal was not "on the merits" and that it cannot support a res judicata bar, litigation of this action is precluded by the res judicata bar created by Haefner I. We do not, however, accept plaintiff's assertion that our dismissal of Haefner II was "without prejudice". We believe that our dismissal of Haefner II must be accorded the same preclusive effect as the judgment upon which it was predicated. Accordingly, we will grant defendants' motion for summary judgment.
AND NOW, this 22nd day of June, 1983, IT IS ORDERED that defendants' motion for summary judgment is GRANTED.