Summary of Davingnon v. Clemmey (1^st Circuit, 2003)

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.