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Stipulation of Discontinuance With Prejudice in Federal Action Did Not Bar State Action Under the Doctrine of Res Judicata

The Second Department determined a stipulation of discontinuance (with prejudice) of a federal action did not preclude the state action under the doctrine of res judicata.  The court explained the narrow application of “with prejudice” in this context:

“A stipulation of discontinuance with prejudice has the same preclusive effect as a judgment on the merits” … . “The general rule is that a stipulation of discontinuance with prejudice is afforded res judicata effect and will bar litigation of the discontinued causes of action” … . But the language “with prejudice” is narrowly interpreted when the interests of justice or the particular equities involved warrant such an approach … .

As the Supreme Court found, the gravamen of [plaintiff’s] federal complaint was civil RICO claims. The complaint in the instant action, however, does not allege that [defendant] violated a substantive RICO statute … . “[E]stablishing a RICO violation requires more than proof of common-law fraud or conspiracy to defraud” … . Furthermore, the particular equities involved require that the phrase “with prejudice” in the stipulation of discontinuance be narrowly construed so as not to bar the continued litigation of the instant action … . The record demonstrates that the instant action continued to be actively litigated contemporaneously with the voluntary discontinuance of [the] federal action. The record supports a determination that [plaintiff] never abandoned litigation of his state action and that [defendant] was aware of this fact. Accordingly, the Supreme Court properly determined that the voluntary discontinuance with prejudice by [plaintiff] of his federal action did not operate as a res judicata bar to the litigation of his instant action. Klein v Gutman, 2014 NY Slip Op 06949, 2nd Dept 10-15-14

 

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