Memorandum of Law submitted to the United States Court of Appeals in opposition to United States District Judge Blake West’s Order

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT COURT

No. 78-2704

Appellant: SAVE OUR WETLANDS, INC. (SOWL)

Appellees: EDWARD H. LEVI, Attorney General of the United States of America
COL. EARLY RUSH, Commander, New Orleans District, U.S. Army Corps of Engineers
WEBB HART, President of St. Tammany Parish Police Jury

Intervenor-Appellee: LEISURE, INC

APPEAL FROM THE UNITED STATES DISTRICT FOR THE EASTERN DISTRICT OF LOUISIANA NEW ORLEANS DIVISION

STATEMENT OF THE ISSUE

Whether the defense of laches resulting in the dismissal of a prior suit on grounds which do not involve the merits of the case can invoke the doctrine of res judicata in a subsequent suit.

STATEMENT OF THE CASE

On October 29, 1974, Save Our Wetlands, Inc. (SOWL), petitioners herein, brought a class action suit in the United States District Court for the Eastern District of Louisiana against various federal and state governmental agencies, their directors, certain individuals, and two corporate real estate developers seeking declaratory and injunctive relief to protect and preserve the environment along the northern shore of Lake Pontchartrain. In regard to the corporate defendants, the suit sought to enjoin the commercial projects known as Mariner’s Village and Eden Isles in order that this area be returned to its natural state or wetlands, held in public trust for the use and enjoyment of the citizens of Louisiana and the United States. Due to the complexity of the issue and facts surrounding the injunction, the District Court ordered a Special Master to conduct hearings and make recommendations to the Court. On January 10, 1975, the Special Master submitted his final report, stating therein that the developments were substantially complete and that petitioner’s suit was filed “considerably after the acts of which they complain were performed.” (p. 120 of record). He therefore recommended that the complaint be dismissed as barred by laches, which Report and recommendation was adopted by the District Court on January 23, 1975.

The effect of the ruling, however, insofar as it was based on the theory of laches, related only to Mariner’s Village and Eden Isles West as they were the only substantially completed developments on which large sums of money were spent. Indeed, in its ruling the Court stated that “any further work that might be contemplated by defendants or third parties at either development is unaffected by this opinion, and would, or course, proceed in accordance with all applicable laws and would be subject to review in the Courts.” (Emphasis added, p. 124 of record). It must be noted that this ruling did not include Eden Isles East for the reason that this tract had not yet been developed, nor was judgment rendered on the issues of:

Land within the Eden Isles area is part of the MPCB ecosystem;
No permits or authorization exist for the construction of the levees surrounding the Eden Isles area, or their subsequent maintenance and revitalization;
With respect to the leveeing, dredging, pumping and related activities in the Eden Isles area:
1. No public hearings were held;
2. No environmental impact statement was prepared; and
3. Permits have not been obtained under the Federal Water Pollution Control Act and the Rivers and Harbors Act.
The alleged illegal dredging, leveeing, pumping and related activities constitute a pattern and practice resulting in destruction of wetlands and water bottoms in the MPCB ecosystem; and
Governmental entities are failing to enforce the law in the MPCB ecosystem by permitting such dredging, leveeing, pumping and related activities.
The issuance of permits for dredging and filling in the eastern portion of Eden Isles in contingent upon a regional cumulative environmental impact statement, and proper permits under the Rivers and Harbors Act of 1899, the Refuse Act of 1899, the Fish and Wildlife Coordination Act, and the Water Quality Improvement Act.

This ruling was subsequently appealed.

During the pendancy of that appeal, on October 15, 1975, the present suit was filed. It necessarily involved many of the same parties; however, the complaint based upon allegations that defendants, in this regard of the District Court’s Order, have continued development in violation of applicable federal law, thereby prompting further judicial scrutiny. In response, the respondents filed a motion to transfer the case from Section “C” to Section “H” on the grounds that this latter action involve facts related to the prior suit dismissed in that section. The motion was granted November 11, 1975 for the sole reason of judicial economy. Thereafter, respondents filed a motion to dismiss and for summary judgment on the grounds that petitioner’s claim is barred by the doctrines of res judicata and collateral estoppel. This motion was granted and the present suit was dismissed as barred by res judicata on July 20, 1975. This appeal ensued.

SUMMARY OF THE ARGUMENT

On review of appellant’s prior and present action, the judgment rendered in the prior action cannot invoke the doctrine of res judicata and bar the appellant’s present suit for the reasons that the first judgment was not dispositive of the merits of that case, and because the present suit sets forth a substantially different cause of action then that advanced in the prior suit.

ARGUMENT

In order for the doctrine of res judicata to apply as a bar to a subsequent suit, three requirements must be met. First, the parties to both suits must be identical; second, the cause of action must be identical; and third, judgment in the prior suit must be dispositive of the merits of the case. Petitioner maintains that the District Court erred in dismissing the present action for the reason that the second and third requirements intrinsic to the operation of the doctrine of res judicata were not present.

As stated in Warren Company vs. Neel, 284 F. Supp. 203, p.210 (1968), in order for a judgment “to bar the claim of plaintiff on the grounds of res judicata, there must have been a decision on the merits of the claim asserted by plaintiff.” The Court went on to hold that the general rule of res judicata, as applicable in the case at bar was set forth in Restatement of the law, Judgments, Section 49, page 193, which reads as follows:

Where avowed and final personal judgment not on the merits is rendered in favor of the defendant, the plaintiff is not thereby precluded from thereafter maintaining an action on this conclusive only as to what is actually decided.

It must be stressed at this point that the District Court’s ruling in the prior action specifically stated that the “matter did not reach trial on the merits, and accordingly the Special Master made no findings or conclusions as to whether the projects required or have been developed with federal permits, Environmental Impact Statement, or in accordance with applicable federal law.” (Emphasis added, p. 123 of Record). Petitioners therefore maintains that a judgment rendered on any grounds which do not involve the merits may not be used as a basis for the operation of the doctrine of res judicata, that such a judgment cannot preclude a subsequent action brought in a way to avoid the objection which proved fatal in the prior action, and that therefore the District Court erred in so dismissing the latter action. Warren Company vs. Neel, 284 F. Supp. 203, p. 210 (1968) Cromwell vs. County of Sac, 94 U.S. 351 (1876).

Petitioner further maintains that the doctrine of collateral estoppel cannot serve as a ground for the dismissal of the present suit. As the United States Supreme Court stated in Cromwell vs. County of Sac, Ibid. at page 352, 353:

…There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as in estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action…

But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered…

As previously stated herein, the District Court’s ruling in the prior suit expressly excluded any further work performed or contemplated by the defendants. Moreover, the Court held any such work must proceed in accordance with all applicable law and would be subject to review in the courts. As is quite clear from the petition filed in the present suit, petitioner simply wishes to prevent the respondents from pursuing further development in violation of the law. As the basis of petitioner’s present action, it involves a different cause of action than that which was advanced in the first suit. Thus, where the second suit presents a different cause of action, the prior judgment is not a complete bar, but rather, operates as in estoppel, as to such issues in the second action as were actually litigated and determined in the first action. Datta vs. Staab, 343 Pa. 2d. 977 (1959). Based on a review and comparison of petitioner’s two suits, it is evident that the judgment rendered in the prior suit cannot invoke the doctrine of res judicata, thereby barring petitioner’s present suit, for the reasons that the first judgment was not rendered on the merits of that suit, and because the present suit sets forth a different cause of action than advanced in the prior suit. Accordingly, the District Court’s dismissal of the present action should be reversed and remanded for further proceedings.

CERTIFICATION OF SERVICE

I hereby certify that a copy of the foregoing Brief has been served on all the attorneys of record, by placing a copy of same in the U.S. mails, postage prepaid, this 17th day of October, 1978.

Plauche F. Villere, Jr.

Serve:

Deutsch, Kerringan & Stiles
Charles Reasonover, Esq.
4700 One Shell Square
New Orleans, LA 70139

Patrick J. Berrigan, Esq.
Assistant District Attorney
2019 Second St.
Slidell, LA 70438

Charles Garretson, Esq.
Attorney at Law
Suite 200 – 302 Board of Trade Bldg.
New Orleans, LA 70130

Robert Boes, Esq.
Assistant U.S. Attorney
Hale Boggs Building
New Orleans, LA 70130

John Schupp, Esq.
Attorney at Law
500 St. Louis Street
New Orleans, LA 70130

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