A case about movie investments is the latest that has closely divided the Court of Appeals. Actually, the issue before the Court had absolutely nothing to do with the movie or the lost investment. Instead, it’s the kind of issue that sparks interest in the community of appellate lawyers who look at how the courts work—whether res judicata principles bar assertion of a federal compulsory counterclaim in a later state court action when it wasn’t brought in an earlier federal suit on similar facts. Fascinating, I know.
In Paramount Pictures Corporation v Allianz Risk Transfer AG (No. 16), Allianz invested in a Paramount film, but agreed to waive any claims against Paramount and not to sue if the investment went south. The investment tanked, and Allianz sued Paramount in federal court anyway, notwithstanding the waiver of claims and bar to lawsuits. Paramount defended the litigation based on the waiver provision, but never raised the covenant not to sue as an affirmative defense or pleaded Allianz’s breach of it as a counterclaim in the federal suit.
After the federal court predictably dismissed the case because of the waiver provision, Paramount brought this breach of contract suit in state court based Allianz’s breach of the covenant not to sue. Allianz moved to dismiss, arguing that res judicata barred Paramount’s breach of contract claim because it was a mandatory counterclaim that was never asserted in the federal suit and was barred by Rule 13(a) of the Federal Rules of Civil Procedure.
Rule 13(a) requires any party to a suit to assert any mandatory counterclaims that it has in that litigation or else they will later be barred from doing so. That rule has never before applied to New York litigation. Instead, New York is a permissive counterclaim jurisdiction, where a defendant to a New York litigation has no obligation to assert any counterclaims, but can wait to assert its own claims in a separate later action.
Recognizing that New York hasn’t subscribed to Rule 13(a)’s mandatory counterclaim rule, Supreme Court denied the motion to dismiss, citing New York’s permissive counterclaims rule under CPLR 3011. To adopt the federal rule, the Court held, would conflict with New York’s rule.
The Appellate Division, First Department, however, reversed and dismissed the suit. The Court held that Rule 13(a) should be applied in state court litigation, and Paramount’s breach of contract claim was thus barred by res judicata for failure to assert it as a mandatory counterclaim in the federal suit.
A plurality of the Court of Appeals affirmed, in a closely split decision. Three judges joined the plurality opinion (Judges Garcia, Stein, and Fahey), two concurred in the judgment only but for different reasons (Judge Rivera and Chief Judge DiFiore), and one dissented (Judge Wilson). What really split the Court was whether it should even be deciding whether to apply federal res judicata precedent to decide whether Paramount’s breach of contract claim should be barred in state litigation.
Judge Garcia, writing for the plurality, began with the principle that the US Supreme Court has the last word on the preclusive effect of federal judgments. And because federal judgments flow from federal courts exercising different types of jurisdiction—generally either federal question or diversity—the federal rules of preclusion are different for each. For a federal judgment based on federal question jurisdiction alone, the Supreme Court has held, federal res judicata principles apply. For diversity jurisdiction cases, state preclusion rules apply.
But what about so-called mixed jurisdiction cases, where both federal question claims and diversity claims are determined in a case? As Judge Garcia pointed out, “[t]he Supreme Court has not squarely addressed the applicable federally prescribed rule of decision – the uniform federal rules or state preclusion law – in a case where, as here, the judgment in the parties’ federal action encompassed both federal- and state-law claims” (Plurality Opn, at 6). Whether the Court of Appeals should answer that open question of federal law on its own split the Court.
Judge Garcia and the plurality decided it should, and held that federal law applied because applying state law to a mixed jurisdiction case would be contrary to “federal interests” (Plurality Opn, at 7). Judge Garcia explained,
That made a state law res judicata analysis unnecessary to decide whether Paramount’s claim should be barred in the state litigation, the plurality held.
Under federal claim preclusion principles, which look at whether the two claims arise from the same transaction or series of transactions, whether the same evidence is needed for both, whether the facts needed for the second claim were also presented in the first, the plurality held that Paramount’s claim was barred. The investors’ claims in the federal suit and Paramount’s counterclaim were too related not the be tried together. Paramount’s failure to assert the counterclaim in that prior action, thus, barred it from bringing a later state court action to enforce the covenant not to sue.
Judge Rivera and the Chief Judge disagreed with the plurality’s decision to reach the unsettled question of the preclusive effect of the federal judgment in a mixed jurisdiction case. In fact, they argued, the question need not have been answered at all because Paramount’s claims were barred regardless of which res judicata principles applied. As the plurality agreed, Paramount’s claim for breach of the covenant not to sue arose out of the same series of transactions as Allianz’s claims in the federal action, and thus were barred because Paramount did not assert its claim when it had the chance to do so. Judge Rivera criticized the plurality for going too far in what essentially amounted to a mistaken advisory opinion.
Judge Wilson, dissenting, disagreed with both and argued that the Supreme Court, had it addressed the issue of the preclusive effect of a federal judgment in a mixed jurisdiction case, would have parsed the claims based on their jurisdictional predicate. Paramount’s breach of contract counterclaim is a state law claim over which the federal district court had diversity jurisdiction, he argued. So the Supreme Court’s precedent would require application of state res judicata principles, and state law would not bar Paramount’s claim here.
Judge Wilson also argued that the plurality had fundamentally confused FRCP Rule 13(a) with federal res judicata principles as if the two were synonymous. They are not, Judge Wilson noted.
Further, Judge Wilson contended, Rule 13(a)’s compulsory counterclaim rule is a policy choice to protect the federal courts from repeated litigations over the same subject. But that policy doesn’t come into play when the counterclaim is later asserted in state court. It is the state courts, not the federal ones, that would be burdened. And New York’s permissive counterclaim rule is a different policy choice. Indeed, as a Judge Wilson put it, “[i]t would be quite strange, though, for the federal court to ‘extend’ the preclusive effect of its judgment to a subsequent claim, arising from the same transaction or occurrence, brought by a defendant seeking to litigate a state law claim and have his or her own day in state court, where the state has made the choice to allow a defendant that option. Unless a judgment on the separately-filed claim would nullify or undermine the federal judgment, federal courts have neither a res judicata interest nor an efficiency interest in that outcome” (Dissenting Opn, at 14).
I tend to agree with Judge Wilson that the plurality’s approach, effectively applying Rule 13(a) in New York based on federal res judicata principles, ignores the unique jurisdictional based on which state law claims can be heard in federal courts, and then what procedural rules apply to those claims. Although I won’t go so far as to guess how the Supreme Court would answer this unsettled question, I think Judge Wilson’s detailed approach makes sense. State law claims litigated in federal court don’t become any less state law claims merely because they are pleaded together with federal question claims. So, state law procedural rules and res judicata principles should apply when a later state court suit is brought to prosecute a cause of action that could have been asserted in the prior federal action. In that case, New York’s policy choice to allow counterclaims to be litigated separately should rule the day, not federal procedural policies. Nevertheless, the plurality’s approach is now the law of New York. Parties beware.
The Court of Appeals’ opinion can be found here.