Brown v. Potter , 248 F. App'x 712 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0698n.06
Filed: September 26, 2007
06-1378
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JEFFREY D. BROWN, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JOHN E. POTTER, Postmaster General, ) EASTERN DISTRICT OF MICHIGAN
United States Postal Service, )
)
Defendant-Appellee. )
Before: DAUGHTREY and MOORE, Circuit Judges, and SHADUR,* District Judge.
PER CURIAM. The plaintiff, Jeffrey D. Brown, appeals from the district court’s grant
of summary judgment to John E. Potter, Postmaster General, on the basis of claim
preclusion. Brown contends that the district court erred in holding that because he could
have amended a complaint filed in an earlier, separate action to include the claims
presented in this complaint, his current action is barred by res judicata. Specifically, the
district court concluded that the current claims ripened before the first action was dismissed
and, thus, that claim preclusion bars them from being raised in this subsequent suit. We
disagree.
*
The Hon. Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by
designation.
06-1378
Brown v. Potter
In our recent ruling in Rawe v. Liberty Mutual Fire Insurance Co., 462 F.3d 521 (6th
Cir. 2006), we reiterated that the doctrine of res judicata does not apply to claims in a
subsequent suit that were not ripe at the time the first suit was filed. See id. at 529-30
(citing Katt v. Dykhouse, 983 F.2d 690, 694 (6th Cir. 1992)). Indeed, in Rawe we
specifically rejected the argument – made by the defendant in this case – that res judicata
should bar the second suit because the plaintiff had failed to amend his first complaint to
include claims that later became available to him. Id. at 530. As we also noted in Rawe,
the majority rule is that “‘an action need include only the portions of the claim due at the
time of commencing that action,’ because ‘the opportunity to file a supplemental complaint
is not an obligation.’” Id. (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 4409 (2d ed. 2002)) (additional citations
omitted).
Here, the parties agree that at least some of the claims brought in Brown’s second
suit were not ripe for judicial review at the time his first action was filed. As a result, we
conclude that this action is not barred and that summary judgment was improperly granted.
We therefore REVERSE the judgment of the district court and REMAND the case
for further proceedings.
-2-