201 F.3d 84 (2nd Cir.

2000)

NORTHERN ASSURANCE COMPANY OF AMERICA, as

Subrogee of Michael and Carole Morrell, Plaintiff-Appellant,
v.
SQUARE D COMPANY, Defendant-Appellee.
Docket No. 99-7153
August Term, 1999

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT
Argued: Sep. 28, 1999
Decided: Jan. 13, 2000

Appeal from a judgment of the United States District Court for the
Northern District of New York, McAvoy, C.J., dismissing plaintiffappellant's complaint on grounds of res judicata.
Reversed, vacated and remanded.
STEVEN L. SMITH, Philadelphia, PA (Elaine M. Rinaldi, Cozen and
O'Connor, Philadelphia, PA, of counsel), for Appellant.
JOHN R. SIMON, Rochester, NY (Hallenbeck, Lascell, Norris & Heller,
Rochester, NY, of counsel), for Appellee.
Before: MESKILL, MINER and PARKER, Circuit Judges.
MESKILL, Circuit Judge:
This is an appeal from a judgment of the United States District Court for
the Northern District of New York, McAvoy, C.J., dismissing Northern
Assurance Company of America's (Northern) complaint against Square D
Company (Square D) on grounds of res judicata. The district court held
that Northern's claims were barred because of the denial of Northern's
motion to amend its earlier complaint to add Square D as a defendant in a
suit brought against another party. Because Northern was under no
obligation to bring its claims against Square D in the earlier suit, we hold
that the denial of Northern's motion to amend its complaint in the earlier

suit does not bar its claims in this suit.

Reversed, vacated and remanded.

BACKGROUND
1

This suit arises out of a November 1995 fire at the home of Michael and Carole
Morrell. The Morrells recovered from their insurer, Northern. After
investigating the circumstances surrounding the fire, Northern believed that the
electric company, New York State Electric & Gas Corporation (NYSEG), was
at fault and, as subrogee of the Morrells, sued NYSEG on September 9, 1996 in
the Northern District of New York, alleging negligence, strict liability and
breach of warranty claims (hereinafter Northern I). On January 28, 1997,
NYSEG responded by adding Square D (defendant-appellee in the instant case)
and the Tree Preservation Company and its employees (collectively "TPC") as
third-party defendants. NYSEG claimed that either Square D, the manufacturer
of the home's circuit breaker, or TPC, the company that trimmed the trees
around the Morrell's home, ultimately was responsible for the fire.

Judge Pooler assigned the case to Magistrate Judge Hurd for pre-trial
proceedings. The magistrate judge and the parties agreed on a scheduling order,
pursuant to Fed. R. Civ. P. 16, setting April 15, 1997 as the deadline for joinder
of parties. Just before the deadline, Northern requested a one week extension to
add TPC as a first-party defendant. The extension was granted and TPC, but not
Square D, was added as a first-party defendant. Northern claims that, despite
NYSEG's allegations against Square D, it did not pursue claims against Square
D at this time because Northern did not have enough independent evidence to
pursue that claim in good faith.

In early October 1997, Northern's expert electrical engineer performed more

tests to determine the cause of the fire. According to Northern, these tests
demonstrated for the first time that it had a claim against Square D. On
December 1, 1997, several months after the deadline for joinder of parties,
Northern petitioned the court for leave to amend its complaint a second time in
order to bring claims against Square D directly. The magistrate judge denied
leave to amend the complaint on February 4, 1998, finding that it was untimely,
that Northern had failed to explain the delay and that Northern had not
presented any evidence to form the basis of a claim against Square D. The
magistrate judge did not address the merits of Northern's claims. Northern did
not appeal the decision or seek reconsideration before Judge Pooler.

Instead, Northern filed this suit against Square D in the Southern District of
New York on May 6, 1998, alleging essentially the same claims it attempted to
add in Northern I. Subsequently, by consent of the parties, the case was
transferred to the Northern District of New York, where it was assigned to
Chief Judge McAvoy.1 Square D moved to dismiss on grounds of res judicata,
arguing that the magistrate judge's denial of Northern's petition to amend in the
first suit constituted res judicata as to the claims contained within the denied
amended complaint. The district court granted Square D's motion and dismissed
the action on December 29, 1998. See Northern Assurance Co. of America v.
Square D Co., 1998 WL 938943, at *3 (N.D.N.Y. Dec. 29, 1998) (hereinafter
Northern II). Northern's petition for reconsideration was denied. See Northern
Assurance Co. of America v. Square D Co., 1999 WL 123575 (N.D.N.Y. Mar.
1, 1999). This appeal followed.

DISCUSSION
A. Jurisdiction
5

Northern is a Massachusetts corporation with its principal place of business in

Boston. Square D is a Delaware corporation with its principal place of business
in New York City. Northern alleged damages in excess of $100,000. As such,
federal jurisdiction exists based on diversity of citizenship, pursuant to 28
U.S.C. 1332. We have appellate jurisdiction pursuant to 28 U.S.C. 1291.
B. Claim Preclusion

Square D claims, and the district court held, that claim preclusion bars
Northern's claims against Square D. It argues that the magistrate judge's denial
of Northern's leave to amend its complaint in Northern I bars the claims
contained in the proposed amended complaint. We disagree. While denial of
leave to amend a complaint may have preclusive effect in some cases, claim
preclusion is unavailable here because the claims sought to be added to the first
suit were against an independent party and were not required to be brought in
that suit.

The doctrine of claim preclusion, not to be confused with issue preclusion or

collateral estoppel,2 holds that "a prior decision dismissed `on the merits' is
binding in all subsequent litigation between the same parties on claims arising
out of the same facts, even if based upon different legal theories or seeking
different relief on issues which were or might have been litigated in the prior
action but were not." EFCO Corp. v. U.W. Marx, Inc., 124 F.3d 394, 397 (2d

Cir. 1997); see also Restatement (Second) of Judgments 19 (1982) ("A valid
and final personal judgment rendered in favor of the defendant bars another
action by the plaintiff on the same claim."). The import of claim preclusion is
that it operates in two ways: (1) it bars claims that were brought and decided in
a prior litigation; and (2) it bars all other claims relating to the same transaction
against the same defendant that could have been brought at that time.3
8

To understand why claim preclusion is not a bar to the current suit, it is

necessary to contrast our case with the typical situation where claim preclusion
would apply after a denial of leave to amend. In those cases the plaintiff is
seeking to add additional claims against the same defendant and leave to amend
is denied without reaching the merits of the claim. The decision to grant or
deny leave to amend rests within the discretion of the trial court. See John
Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir.
1994). The courts are generally in agreement that these new claims should be
barred. See EFCO, 124 F.3d at 399-400 (plaintiff sought leave to amend to add
additional claims against the same defendant in state court, the court denied
leave, and we found that claim preclusion "applies to the claims sought to be
added in the proposed amended complaint"); see also Landscape Properties v.
Whisenhunt, 127 F.3d 678, 683 (8th Cir. 1997) (after plaintiff's motion to
amend its complaint to add additional claims against the same defendants was
denied in first suit, in subsequent suit those claims were barred by claim
preclusion); Huck v. Dawson, 106 F.3d 45, 49-50 (3d Cir. 1997) (same); King
v. Hoover Group, 958 F.2d 219, 222-23 (8th Cir. 1992) (same, noting that "[i]t
is well settled that denial of leave to amend constitutes res judicata on the
merits of the claims which were the subject of the proposed amended
pleading"); Johnson v. SCA Disposal Services, 931 F.2d 970, 974-76 (1st Cir.
1991) (same); Restatement (Second) of Judgments 25, cmt. b (1982) ("It is
immaterial that the plaintiff in the first action sought to prove the acts relied on
in the second action and was not permitted to do so because they were not
alleged in the complaint and an application to amend the complaint came too
late."). But see Mayes v. Local 106, Int'l Union of Operating Eng'rs, 1999 WL
60135, at *3 (N.D.N.Y. Feb. 5, 1999) (finding that "the interests of justice
favor examination" of claims that were not allowed to be added to a prior
action).

Where the plaintiff is seeking to add additional claims against the same
defendant and leave to amend is denied, claim preclusion is appropriate. When
claim preclusion is applied in these cases, it is not the actual decision to deny
leave to amend that forms the basis of the bar. See, e.g., Nilsen v. City of Moss
Point, Miss., 701 F.2d 556, 564 (5th Cir. 1983) (en banc) (finding no
distinction between a plaintiff electing to advance additional claims after final

judgment and a plaintiff advancing additional claims in a motion to amend its

complaint, implicitly recognizing that the actual decision denying leave would
be irrelevant for claim preclusion purposes). Indeed, the decision denying leave
to amend is usually based on factors such as timeliness or convenience (as in
Northern I) and is not an adjudication "on the merits." In fact, the actual
decision denying leave to amend is irrelevant to the claim preclusion analysis.
See Integrated Technologies Ltd. v. Biochem Immunosystems (U.S.), 2
F.Supp.2d 97, 103 (D. Mass. 1998) ("The fact that a judge has denied a motion
to amend which seeks leave to add a new claim to an existing case should have
no bearing either way on the question whether plaintiff may file the new claim
as a separate lawsuit, unless the denial of leave to amend is itself based on ...
the merits."). It may be a specific event upon which claim preclusion can focus,
but the decision itself is not necessary for claim preclusion to apply.
10

Instead, the bar is based on the requirement that the plaintiff must bring all
claims at once against the same defendant relating to the same transaction or
event. See, e.g., Nilsen, 701 F.2d at 563 ("[T]heories which were the subject of
an untimely motion to amend, filed in the earlier action, `could have been
brought' there."). The claims will be barred through the normal rule barring
claims that should have been brought, regardless of whether the plaintiff seeks
to add them to the initial suit. See Integrated Technologies, 2 F.Supp.2d at 103
(finding, as a general principle, that where denial of leave to amend is not based
on the actual merits of the claims, "ordinary principles of claim preclusion
should determine whether the plaintiff should be permitted to assert such new
claim in a separate lawsuit"). Thus, the actual decision denying leave to amend
is no more than a proxy to signify at what point claims have been forfeited due
to a plaintiff's failure to pursue all claims against a particular defendant in one
suit. The bar, however, turns on normal principles of claim preclusion, i.e.,
whether Northern was required to bring its claims in the initial suit.

11

Unlike the situation described above, our case involves a plaintiff seeking to
add claims against a new defendant. Northern was not required to bring its
claims against Square D in Northern I because they are independent claims.
Northern has separate and distinct causes of action against each defendant,
since NYSEG and Square D allegedly are joint tortfeasors and are not in
privity.4 Northern has "as many causes of action as there are defendants to
pursue." 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure 4407, at 52-53 (1981); see Restatement (Second) of
Judgments 49 cmt. a (1982) (for preclusion purposes "the claim against others
who are liable for the same harm is regarded as separate"); see also Central
Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 367
(2d Cir. 1995) (quoting Wright, Miller & Cooper and the Restatement). If

Northern chose to sue one defendant, but not the other, the unadjudicated claim
would survive the first judgment, because "[w]hen a litigant files consecutive
lawsuits against separate parties for the same injury, the entry of a judgment in
the prior action does not bar the claims against other potentially liable parties."
Central Hudson Gas, 56 F.3d at 367; see also White v. Kelsey, 935 F.2d 968,
970 (8th Cir. 1991) ("A claim is not terminated against one person who may be
liable for a loss by a judgment against another person liable for the loss.").5
12

Applying these principles, the denial of Northern's motion for leave to amend in
Northern I cannot preclude Northern's claims against Square D in this action.
Because Northern was under no obligation to bring the claims in Northern I, it
is not barred by the normal operation of claim preclusion.
C. Policy and Judicial Economy

13

Square D argues that even if claim preclusion does not apply, the policies
behind it, achieving finality and preventing piecemeal and wasteful litigation,
warrant dismissal of Northern's claims. This argument is unpersuasive.
Northern attempted, albeit belatedly, to bring its claim against Square D in
Northern I. Had leave to amend been granted, the second suit would have been
avoided. Northern should not be penalized for its failure to succeed in its
attempt to have all claims resolved in one lawsuit.6

14

Claim preclusion should produce a sense of finality between the parties. When
a party is victorious, it should not have to defend that victory again. In the
present case, Square D's victory, if it can be called that, was in not being added
as a first-party defendant in Northern I. There was no decision on the merits of
Northern's claim that Square D's circuit breaker was responsible for the house
fire. Finality will not be upset by allowing this action to proceed. Furthermore,
Square D will not be prejudiced. Had Northern not attempted to add its claims
against Square D in Northern I, Square D would face the same claims as it will
after this decision.

15

Square D also claims that wise judicial administration requires dismissal of

Northern's action. We disagree. While dismissal of a complaint may be justified
"if the `claims, parties, and available relief do not significantly differ between
the two actions,'" Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.
1993) (quoting Ridge Gold Standard Liquors v. Joseph E. Seagram & Sons,
572 F.Supp. 1210, 1213 (N.D. Ill. 1983)), the scarcity of judicial resources
alone does not justify denying a party the opportunity to litigate a claim. Square
D is unable to cite, and we are unable to find, any case where a second suit

against an independent party was dismissed as duplicative. NYSEG and Square

D are significantly different, independent entities with opposing interests. Cf.
Curtis v. DiMaio, 46 F.Supp.2d 206, 215-16 (E.D.N.Y. 1999) (dismissing suit
as duplicative, but only after finding that although parties were not identical,
their interests were sufficiently aligned). Northern's claims against NYSEG and
Square D are not duplicative.
16

Furthermore, it is unlikely that this action will waste judicial resources.The

decision to consolidate this case with Northern I or try it separately is left to the
district court, which is in the best position to manage its resources.

17

Finally, Square D argues that we should not permit Northern to ignore the
magistrate judge's ruling by filing suit separately and thus ignoring the effect of
Fed. R. Civ. P. 16 and the deadline for joinder of parties. See United States v.
McGann, 951 F.Supp. 372, 379 (E.D.N.Y. 1997) ("[T]he government is
attempting an end run around the denial of its motion to amend its complaint by
filing a new one, ... attempting to accomplish indirectly what it could not
accomplish directly. The law's response to such attempts is generally a negative
one."). However, the magistrate judge's ruling only said that it was too late to
join claims directly against Square D in Northern I by amending the complaint.
The ruling did not say that Northern forfeited or waived any claims against
Square D. That issue was not before the magistrate judge. Neither did he
consider the merits of Northern's claim. His ruling was limited to the procedural
aspects of Northern I. It did not foreclose other valid procedural routes
available to Northern. See, e.g., SEC v. First Jersey Sec., 101 F.3d 1450, 1464
(2d Cir. 1996) (in initial suit, plaintiff not required to bring claims arising after
the filing of that suit, and its election not to add subsequent claims to the suit "is
not penalized by application of res judicata to bar a later suit on that subsequent
conduct"); Nilsen, 701 F.2d at 561 ("[U]tilization of one procedural vehicle to
vindicate a substantive right does not preclude employing a parallel procedural
vehicle to vindicate the same substantive right."). If this case is consolidated
with Northern I, it will be via a procedural route different from the method
foreclosed by the magistrate judge's denial of the motion for leave to amend the
complaint in Northern I. Thus, dismissal is not warranted, either under claim
preclusion or on policy grounds.

CONCLUSION
18

For the reasons stated herein, the district court's decision dismissing Northern's
suit on grounds of claim preclusion is reversed. The judgment is vacated and
the case is remanded for further proceedings.

Notes:
1

Judge Pooler became a Circuit Judge on June 19, 1998. Northern I was then
apparently assigned to Chief Judge McAvoy.

The district court used the term res judicata to describe the doctrine that it
believed barred the suit. The term res judicata, however, is more appropriately
defined as encompassing two separate and distinct wings of preclusion law,
claim preclusion and issue preclusion, see generally 18 Charles A. Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure 4402
(1981 & Supp. 1999) (describing cases acknowledging claim and issue
preclusion as separate doctrines within the broader concept of res judicata).
Claim preclusion is at issue in our case.

We need not decide whether Northern's claim against Square D could have
been brought at the time of Northern I because it is unnecessary to our decision.
Regardless of whether or not Northern was fully aware of its claim against
Square D when it sued NYSEG, it was under no obligation to add both parties
to the initial suit, as we explain later.

There is no privity between NYSEG and Square D. Although courts have

expanded the concept of privity beyond its literal meaning, see Alpert's
Newspaper Delivery v. New York Times Co., 876 F.2d 266, 270 (2d Cir. 1989)
("The issue is one of substance rather than the names in the caption of the case;
the inquiry is not limited to a traditional privity analysis."), NYSEG and Square
D have no connection other than as opponents in Northern I. Absent an
indemnification relationship, see Garver v. Brown & Co. Sec. Corp., 1998 WL
54608, at *4-5 (S.D.N.Y. Feb. 10, 1998), we see no reason to suggest that they
would have a sufficient alignment of interests to warrant a finding of privity.
Compare Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56
F.3d 359, 367-68 (2d Cir. 1995) ("[P]rivity bars relitigation of the same cause
of action against a new defendant known by a plaintiff at the time of the first
suit where the new defendant has a sufficiently close relationship to the original
defendant to justify preclusion.") (emphasis added).

Northern will not be permitted double recovery. While multiple parties may be
liable to Northern, there can be only one satisfaction of the judgment. See St.
Clair v. Eastern Air Lines, 302 F.2d 477, 479 (2d Cir. 1962) ("To the extent
that the judgments represent compensation for the same injury, there can be no
question that the plaintiff is only entitled to a single recovery.").

Square D also claims that Northern should have moved to reconsider the denial

or appealed the denial. Faced with the burden of proving that the denial of leave
to amend was an abuse of discretion, Northern cannot be faulted for deciding to
institute a separate suit, something it had a right to do initially.