Dismissal on Procedural Grounds May Bar Claims for Later Infringement Under Res Judicata

RICHARD SOWINSKI v. CALIFORNIA AIR RESOURCES BOARD

Before Newman, Lourie, and Schall.  Appeal from the District Court for the Northern District of California.

Summary: Res judicata may bar subsequent claims regarding conduct substantially similar to conduct accused in a prior action that was dismissed for failure to prosecute.

In a prior case, Sowinski sued California Air Resources Board (“CARB”) for patent infringement. Following the filing of several motions to dismiss, both parties filed a joint stipulation that included the statement that the motions were “potentially case dispositive.” After Sowinski failed to respond to the motions to dismiss, the district court dismissed the complaint with prejudice pursuant to a local rule, which provides that such failure can be deemed consent to the granting of a motion. Sowinski appealed the dismissal, and the Federal Circuit affirmed.

In the present case, Sowinski filed a substantially identical complaint against CARB, seeking damages only for alleged infringement occurring after the first case was dismissed. The district court dismissed the complaint on the ground of res judicata. Sowinski appealed, raising two principal arguments. Sowinski first argued that the merits of patent infringement were not adjudicated in the first suit, and thus res judicata should not apply. The Federal Circuit held that the district court properly applied preclusion, explaining that a dismissal for failure to prosecute operates as an adjudication on the merits under FRCP 41(b). Sowinski next argued that preclusion cannot apply since he sought damages only for infringement occurring after the conclusion of the prior case. The Federal Circuit rejected this argument, noting that “Dr. Sowinski alleges no different conduct or acts, and the defendant is the same.” The Federal Circuit distinguished between allowing subsequent suits when an act has been adjudged wrongful, and the present case, where the act in question had been adjudged not wrongful.

Editor: Paul Stewart