United States District Court, D. South Carolina, Florence Division
E. Rogers, III United States Magistrate Judge
Motion to Dismiss (Document # 45), Defendant has raised the
affirmative defense of res judicata to Plaintiff's claims
in this action. In determining whether res judicata applies,
the court looks not just to the claims asserted in an earlier
lawsuit, but to all claims that could have been brought.
Nevada v. United States, 463 U.S. 110, 129-30, 103
S.Ct. 2906, 77 L.Ed.2d 509 (1983). To preclude claims not
brought earlier, the court need only determine that they were
“available” to the plaintiff in the first action.
See generally Ohio Valley Envtl. Coal. v. Aracoma Coal
Co., 556 F.3d 177, 210-11 (4th Cir.2009).Plaintiff's
retaliation claim here arises in part from a counterclaim or
counterclaims raised by Defendant in the previous state
actions seeking attorney's fees and a fine. It is not
entirely clear from the record presented whether the
retaliation claim raised here was “available” to
Plaintiff in the previous state actions. Therefore, within
ten days of the date of this order, the parties are directed
to provide additional argument and court records, if
applicable, addressing this issue.
IS SO ORDERED.
The Fourth Circuit noted the issue here
but declined to address it. Clodfelter v. Republic of
Sudan, 720 F.3d 199, 210-11 (4th Cir.2013); but see
Taylor v. Norfolk Southern Ry. Co., 86 ...