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Davingnon v. Clemmey
(1st Circuit, 2003)
Author: Krista
Facts: Plaintiff/appellant Davignon
worked for defendant/appellee Karl Clemmey and his son at
Claemmey Auto Body and also leased his residence from Karl
Clemmey’s real estate company. In January of 1998,
Davignon was fired and evicted. Whatever transpired between the
parties resulted in the Clemmeys’ conviction for assault and
battery, intentional of emotional distress and civil rights
violations. That court awarded substantial damages to Davignon,
his wife and his children. The district court vacated the awards
to Davignon and his wife because of a finding that these claims
had been waived pursuant to a July 1998 agreement for judgment in
the housing-court eviction proceedings.
Procedure: Davignon and his wife
cross-appeal from the district court order which vacated their
respective $1,000,000 awards for IIED and various civil rights
violations.
Issue: Whether Karl Clemney waived
any res judicata defense by failing to raise it until near the
close of the Davignon’s case on the eighth day of the
nine-day trial.
Rule: As an affirmative defense
enumerated in Fed.R.Civ.P.8 (c), normally res judicata is
deemed waived unless raised in the answer. Exceptions: 1.0 where
the defendant asserts it without undue delay and the plaintiff is
not unfairly prejudiced by any delay, or 2.) the circumstances
necessary to establish entitlement to the affirmative defense did
not obtain at the time the answer was filed.
Holding: The district court order
allowing the cross-appellees’ post judgment motion is
therefore vacated, and the original judgment for the appellees,
entered pursuant to the jury verdict, is hereby reinstated and
affirmed.
Reasoning: Those cases which have
permitted the interposition of an affirmative defense outside the
pleadings generally have involved moderate delays, such as an
attempt to raise the defense in a pretrial motion to dismiss or
for summary judgment, rather than at trial or in a postjudgment
motion. Karl Clemmey has tendered no justification
whatsoever for the belated request for further delay, and his
putative entitlement to the res judicata defense accrued well
before the time Clemmey submitted an answer.
res judicata [Latin "a thing
adjudicated"] 1. An issue that has been definitively
settled by judicial decision. 2. An affirmative defense
barring the same parties from litigating a second lawsuit on the
same claim, or any other claim arising from the same transaction
or series of transactions and that could have been -- but was not
-- raised in the first suit. • The three essential elements
are (1) an earlier decision on the issue, (2) a final judgment on
the merits, and (3) the involvement of the same parties, or
parties in privity with the original parties.
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