Herington v. City of Wichita

No. 120,329

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DAWN HERINGTON, Individually, and as Mother and Next Friend of B.D.J.L.,
Minor Child and Heir-at-Law of Troy Lanning II, Deceased, and as
Special Administrator of the Estate of Troy Lanning II,
Appellant,

v.

CITY OF WICHITA and CITY OF WICHITA POLICE DEPARTMENT
OFFICER RANDY WILLIAMSON, Individually,
Appellees.

SYLLABUS BY THE COURT

The res judicata rule adopted in Stanfield v. Osborne Industries, Inc., 263 Kan.
388, 403-04, 949 P.2d 602 (1997), and endorsed in Rhoten v. Dickson, 290 Kan. 92, Syl.
¶ 7, 223 P.3d 786 (2010), is considered and applied to affirm a district court judgment for
the defendants on plaintiff's state law claims that were originally filed in federal court and
dismissed there without prejudice for lack of jurisdiction.

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed December 4,
2020. Affirmed.

James A. Thompson, of Malone, Dwire & Thompson, LLC, of Wichita, for appellant.

J. Steven Pigg and Samuel A. Green, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for
appellee.

Before ATCHESON, P.J., MALONE, J., and DANIEL D. CREITZ, District Judge, assigned.

1
 PER CURIAM: Wichita Police Officer Randy Williamson fatally shot Troy Lanning
II after pursuing him in a high-speed car chase and then on foot. Dawn Herington,
Lanning's mother, filed an action for damages against Williamson and the City of
Wichita in the United States District Court for the District of Kansas alleging violations
of Lanning's civil rights under federal law and several state law tort claims. Herington
filed the action in her dual capacity as an heir of Lanning and as the special administrator
of his estate. The federal district court granted summary judgment to Williamson on the
federal claims based on qualified immunity and to the City on the federal claims based on
several other grounds going to their merits. Having done so, the district court dismissed
the state law claims for lack of jurisdiction and, therefore, without ruling on their merits.
See Herington v. City of Wichita, No. 6:14-cv-01094-JTM, 2017 WL 76930, at *13 (D.
Kan. 2017) (unpublished opinion).

Herington refiled the state claims in Sedgwick County District Court in this case.
Applying res judicata as the Kansas Supreme Court has defined that rule of preclusion,
the district court granted summary judgment to Williamson and the City simply because
those claims had been asserted in the federal action and were later dismissed without any
consideration of their validity. As a result, Herington has been denied relief on those state
law claims even though neither the federal court nor the district court ever considered
their merits.

We are obligated to apply res judicata the way the Kansas Supreme Court has
outlined the doctrine in Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 403-04, 949
P.2d 602 (1997), and later in Rhoten v. Dickson, 290 Kan. 92, Syl. ¶ 7, 223 P.3d 786
(2010). See Majors v. Hillebrand, 51 Kan. App. 2d 625, 629-30, 349 P.3d 1283 (2015)
(Court of Appeals required to follow Supreme Court precedent absent some indication
Supreme Court is departing from its previous position). The preclusion rule that
originated in Stanfield prohibits a plaintiff from pursuing state law claims in the Kansas
district courts when a federal court has dismissed them for lack of jurisdiction in

2
conjunction with entering a judgment on the merits for the defendant on all of the federal
claims. Rhoten, 290 Kan. at 112. And that rule applies here, given the procedural
progression of the federal case and Herington's refiling of the state law claims in this
case.

The Stanfield formulation of res judicata appears to be unique to Kansas and
effectively deprives Herington of a hearing on the merits of the state law claims she has
pursued from the beginning of her legal battle merely because the federal court declined
to consider them at all. Conventional res judicata principles would have permitted
Herington to go forward with those claims in this case, since the federal court dismissed
them without adjudicating their merits. See Jackson Trak Group v. Mid States Port
Authority, 242 Kan. 683, 690-91, 751 P.2d 122 (1988); 18 Wright, Miller, & Cooper,
Federal Practice and Procedure: Jurisdiction 3d § 4402 (2020). Neither we nor the
district court can pick and choose what rule of res judicata to apply. The district court
properly applied Stanfield and Rhoten in entering judgment for the defendants based on
res judicata.

Affirmed.

***

ATCHESON, J., concurring: The Kansas Supreme Court fashioned an eccentric and
exceedingly unfair rule of res judicata in Stanfield v. Osborne Industries, Inc., 263 Kan.
388, 403-04, 949 P.2d 602 (1997), and perpetuated that eccentricity and unfairness in
Rhoten v. Dickson, 290 Kan. 92, Syl. ¶ 7, 223 P.3d 786 (2010). On the whole, judicially
created doctrines, such as res judicata, ought to avoid both remarkable oddity and patent
inequity. In every instance, however, they should be shaped by considerations of basic
fairness. As this case illustrates, the Stanfield iteration of res judicata as a matter of
federal common law isn't fair, and there is no public policy tradeoff for that lack of

3
fairness. In short, Rhoten and Stanfield deny plaintiffs their proverbial day in court for no
good reason.

As I discuss, the path to and the reasoning underlying Stanfield is suspect. In that
case, the court abandoned without discussion the res judicata principles set out in Jackson
Trak Group v. Mid States Port Authority, 242 Kan. 683, 690-91, 751 P.2d 122 (1988)—
principles that conform to the customary understanding of claim preclusion in both
federal and state law. Those conventional rules of res judicata would have allowed Dawn
Herington to go forward with this case in the district court. The court then replicated the
departure from orthodox doctrinal notions of res judicata in Rhoten, based primarily on
an adherence to the Stanfield decision as settled law and the force of stare decisis. But, as
I explain, stare decisis ought to yield, given the misconceived application of res judicata
in Stanfield that breaks with federal law and general preclusion principles set out in
Jackson Trak and an array of other contrary authority. The Stanfield rule likewise
undermines a foundational objective of the civil litigation process to decide legal disputes
on their merits whenever possible. And the rule offers no tangible benefit to the process
offsetting that destructive effect.

Apart from being peculiar and something short of intrinsically just, the Stanfield
version of res judicata is likely unconstitutional. By denying plaintiffs a forum for review
of state law claims dismissed for lack of jurisdiction in federal court, the rule undercuts
the purpose of 28 U.S.C. § 1367 (2016), governing federal courts' supplemental
jurisdiction over state law claims, and presumably runs afoul of the Supremacy Clause of
the United States Constitution as a result. The Supremacy Clause doctrine of conflict
preemption negates the Stanfield rule of res judicata because it imposes a substantial
obstacle to the full operation of 28 U.S.C. § 1367.

The Kansas Supreme Court ought to consider taking this opportunity to reexamine
what was done nearly 25 years ago in Stanfield and to realign this state's application of

4
res judicata with conventional preclusion principles. Herington and similarly situated
plaintiffs should be afforded a judicial forum to have their state law claims heard on the
merits. I offer no opinion on the merits of Herington's claims—only my sentiment that
she has been figuratively barred at the courthouse door because of a rule that inexplicably
breaks with well-settled law and advances no discernible judicial or public policy.

Factual and Procedural Progression of This Litigation

The factual and procedural setting before us is remarkably straightforward and
presents a recurrent litigation pattern involving civil cases with both state and federal
claims. While on duty, a Wichita police officer shot and killed Troy Lanning II. The
precise circumstances are irrelevant to the legal issue on appeal. Herington filed federal
civil rights claims under 42 U.S.C. § 1983 (2016) and state law tort claims against the
City of Wichita and the police officer in the United States District Court for the District
of Kansas. Again, the precise theories of liability are irrelevant. The federal district court
granted summary judgment to the City and the officer on the merits of the civil rights
claims, leaving only the state law claims unresolved. Consistent with 28 U.S.C. § 1367,
the federal district court dismissed them without prejudice for lack of jurisdiction—never
considering their underlying validity.

Herington refiled the state law claims in Sedgwick County District Court. The
City and the officer then faced the same unresolved claims the federal court declined to
consider and dismissed for lack of jurisdiction. But based on the Kansas Supreme Court's
unique view of res judicata, the district court entered judgment for the City and the
officer, dismissing those claims without regard to their merits. So as Kansas law now
stands, Herington will never get a judicial determination on whether the City and the
police officer committed torts causing the wrongful death of her son.

5
 We are constrained to apply the rule of res judicata the court created in Stanfield
and continued in Rhoten. For that reason (and that reason alone), I necessarily join in the
per curiam opinion affirming the district court's judgment for the City and the police
officer. As my comments suggest, I do so unhappily.

Conventional Res Judicata Doctrine

Res judicata is a judge-made rule that prevents one party from serially suing a
second party for claims that have already been decided on their merits in an earlier action
or for related claims that could have been but were not asserted in that action. See
Jackson Trak Group, 242 Kan. at 690-91; Estate of Belden v. Brown County, 46 Kan.
App. 2d 247, 259, 261 P.3d 943 (2011) ("[R]es judicata prohibits a plaintiff from filing a
successive suit against a defendant based either on factually related claims omitted from
an earlier suit or on claims actually asserted and lost on a final judgment on the merits in
the earlier suit."); Pierson Sand and Gravel, Inc. v. Keeler Brass Company, 460 Mich.
372, 380, 596 N.W.2d 153 (1999) ("[T]he doctrine of res judicata applies, except in
special cases, in a subsequent action between the same parties and 'not only to points
upon which the court was actually required by the parties to form an opinion and
pronounce a judgment, but to every point which properly belonged to the subject of
litigation, and which the parties, exercising reasonable diligence, might have brought
forward at the time.'"); 18 Wright, Miller, & Cooper, Federal Practice and Procedure:
Jurisdiction 3d § 4402 (2020). Res judicata, then, keeps a plaintiff from harassing a
defendant with a successive action relitigating claims that have been already decided
adversely to the plaintiff or asserting for the first time factually related claims the plaintiff
withheld from an earlier action, so they were never presented for adjudication. Wright,
Miller, and Cooper explain the dual preclusive components of res judicata this way: "The
first is the effect of foreclosing any litigation of matters that never have been litigated,
because of a determination that they should have been advanced in an earlier suit." And

6
"[t]he second is the effect of foreclosing relitigation of matters that have once been
litigated and decided." Federal Practice and Procedure: Jurisdiction 3d § 4402.

In its conventional form—whether applied as a matter of federal law or state
law—res judicata encourages (really compels) parties to litigate all of their claims in a
single action and then gives continuing legal effect between the litigants to a merits
judgment on those claims in that action. The judgment also bars later litigation of
factually related claims that could have been sued on in that case. The rule promotes
adjudicatory efficiency and finality. But it does so with the recognition the judicial
process has run its course in addressing and deciding the claims that were or could have
been presented for determination. In short, res judicata affords parties who believe they
have been aggrieved the proverbial one bite of the apple in seeking legal relief. But it is
supposed to be a full and fair bite.

Accordingly, courts have long recognized that when a plaintiff's claim is dismissed
in one action for reasons other than its merits, res judicata does not bar its litigation in a
later action. The recognition isn't so much an exception to res judicata as a focused
emphasis on the requirement for a merits-based determination to trigger preclusion. A
dismissal for lack of jurisdiction does not support res judicata, since the dismissal rests on
the authority of the court to hear the asserted claim in the first place rather than on the
merits of the claim. The court in Jackson Trak outlined this limitation: "[A] judgment is
not res judicata as to any matters which a court expressly refused to determine, and which
it reserved for future consideration, or which it directed to be litigated in another forum or
in another action." 242 Kan. at 691. The United States Supreme Court has similarly
recognized that a state law claim dismissed in federal court for lack of jurisdiction should
then be litigated in an appropriate state court. See United Mine Workers of America v.
Gibbs, 383 U.S. 715, 726-27, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). In their treatise,
Wright, Miller, and Cooper point out that dismissal for lack of jurisdiction in one judicial
forum should not be transformed into a res judicata bar to litigation in a forum with

7
jurisdiction. Federal Practice and Procedure: Jurisdiction 3d § 4402 (dismissal in federal
court for lack of subject-matter jurisdiction should not bar action on same claim in forum
with jurisdiction); § 4412 (federal court's declination of supplemental jurisdiction over
state law claims should not preclude state court action); § 4436 & n.53 ("Discretionary
refusal to exercise supplemental jurisdiction likewise does not preclude a subsequent
action on state-law claims in a state court."). Both Fed. R. Civ. P. 41(b) and K.S.A. 2019
Supp. 60-241(b)(1) state that the dismissal of an action or a claim for lack of jurisdiction
is not an adjudication on the merits.

The rules of res judicata recognized in both Kansas law in Jackson Trak and in
federal law as set out in United Mine Workers and applied since are united in recognizing
that a claim dismissed for lack of jurisdiction is not an adjudication on the merits
triggering claim preclusion. So the dismissed claim could then be filed and litigated on its
merits in a judicial forum with jurisdiction. Case authorities recognizing that aspect of res
judicata are legion. See United Mine Workers, 383 U.S. at 726-27 (if federal court
dismisses federal claims supplying jurisdiction, then state claims "may be dismissed
without prejudice and left for resolution to state tribunals"); International Energy
Ventures Management, LLC v. United Energy Group, Ltd., 818 F.3d 193, 202 & n.25 (5th
Cir. 2016) (dismissal of state law claims for lack of jurisdiction is without prejudice, so
plaintiff not barred by res judicata from pursuing them in state court); Home Builders
Ass'n of Mississippi, Inc. v. City of Madison, Mississippi, 143 F.3d 1006, 1013 (5th Cir.
1998) ("[P]rinciples of claim preclusion do not bar the plaintiffs from pursuing their
claims in state court [because a] dismissal under Rule 12[b][1] [for lack of subject matter
jurisdiction] is not on the merits, and therefore cannot have a res judicata effect.");
Guerrero v. California Dept. of Corrections and Rehabilitation, 28 Cal. App. 5th 1091,
1107 n.15, 239 Cal. Rptr. 3d 726 (2018); Lucas v. County of Los Angeles, 47 Cal. App.
4th 277, 286, 54 Cal. Rptr. 2d 655 (1996) ("A federal court's discretionary refusal to
exercise pendent jurisdiction over a state claim does not bar further litigation of the state
claim in state court."); Herbin v. Hoeffel, 806 A.2d 186, 193 (D.C. App. 2002) (federal

8
district court's decision to decline supplemental jurisdiction over state claims does not
preclude state court action on those claims); Nowak v. St. Rita High School, 197 Ill. 2d
381, 393, 757 N.E.2d 471 (2001) ("By declining jurisdiction over the plaintiff's pendent
state claim, dismissing it for lack of jurisdiction, the [federal] district court in effect
reserved plaintiff's right to pursue the matter in state court." Res judicata "does not
apply."); Shandelmeier-Bartels v. Chicago Park District, 389 Ill. Dec. 451, 460, 26
N.E.3d 541 (2015); Pierson Sand and Gravel, 460 Mich. at 382; Jensen v. Champion
Window of Omaha, 24 Neb. App. 929, 935-36, 900 N.W.2d 590 (2017); Neuman v.
Echevarria, 171 A.D.3d 767, 768, 97 N.Y.S.3d 203 (2019); Stylianou v. Incorporated
Village of Old Field, 23 A.D.3d 454, 457, 805 N.Y.S.2d 573 (2005) ("Where a federal
court, upon dismissing all federal law causes of action against a defendant, also dismisses
pendent state law claims against that defendant for want of subject matter jurisdiction, a
plaintiff is not barred from commencing . . . an action in state court based on the same set
of transactions or occurrences."); Ohio Kentucky Oil Corp. v. Nolfi, 5 N.E.3d 683, 691
(Ohio Ct. App. 2013); Whitesell v. Newsome, 138 S.W.3d 393, 396 n.2 (Tex. Ct. App.
2004) ("[A] dismissal [in federal court] for lack of subject-matter jurisdiction is not a
ruling on the merits and therefore cannot have res judicata effect and bar plaintiffs from
pursuing claims in state court."). Those cases are illustrative and not exhaustive of the
authority for this settled principle of res judicata.

Accordingly, as res judicata is commonly understood and as it was applied in
Kansas before Stanfield, the federal district court's dismissal of Herington's state tort
claims without prejudice for lack of jurisdiction after granting summary judgment to the
defendants on the merits of her federal civil rights claims would not have created a
preclusive bar to this case. In plain terms, Herington would have been entitled to seek a
decision in the district court from a judge or jury on the validity of her claims. But the
idiosyncratic res judicata rule of Stanfield denies Herington that opportunity—so she will
never get a ruling up or down on the merits of those claims and the City and the police

9
officer will escape a substantive accounting on those tort claims for the conduct that led
to Lanning's death.[1]

[1]This case turns on res judicata or claim preclusion and, thus, the legal theories
or grounds for liability arising from the transaction or operative facts bearing on the
circumstances creating the harm or injury. There is no dispute that the state law claims
Herington pursued in federal court and refiled in this action arose from a single
transaction for res judicata purposes. The transaction, however, extends beyond the
immediate interaction between the police officer and Lanning leading up to the fatal
shooting and encompasses allied circumstances such as the City's care in hiring the
officer and then supervising him.

This appeal does not concern the complementary doctrine of collateral estoppel or
issue preclusion. Issue preclusion prohibits a party from relitigating factual
determinations necessary to a judgment on the merits in one action in a later action in
which the same issue arises, even though the legal claims may be different. Kansas
applies issue preclusion when the actions involve the same parties or litigants in privity
with them. See Estate of Belden, 46 Kan. App. 2d at 265. The district court did not rely
on issue preclusion in granting summary judgment to the defendants in this case.

Having outlined the conventional treatment of res judicata in both state and federal
law, I next explain the migration from that accepted doctrinal approach, as described in
Jackson Trak and elsewhere, to the decidedly odd preclusion rule that now governs. The
present rule serves no discernible judicial or public policy and, so far as I can tell, has
turned Kansas into an outlier of one when it comes to res judicata.

The Strange Life and Times of Stanfield and Rhoten

With respect to res judicata, Stanfield presented a legal circumstance comparable
to Herington's position here, although the underlying facts bear no similarity. Stanfield
had a longstanding dispute with Osborne Industries over royalty and trademark rights
arising from his design of a heated pad for pig birthing or farrowing. Pertinent here,
Stanfield sued the company in federal court for trademark violations under the federal
Lantham Act and for state law claims for slander, disparagement, and misappropriation of

10
his name in marketing some of its products. The federal district court ruled against
Stanfield on the merits of the Lantham Act claims and dismissed the state claims for lack
of jurisdiction. Stanfield then filed an action in Osborne County District Court asserting
the state claims that had been dismissed in federal court. The district court ruled for the
company, and the Kansas Supreme Court exercised its authority to hear Stanfield's
appeal, bypassing this court.

The court recognized that the federal common law of res judicata governed the
preclusive effect of the federal court's dismissal of Stanfield's state law claims for lack of
jurisdiction. And it also recognized that the federal law essentially matched Kansas law
outlining res judicata. 263 Kan. at 396.

The court identified the necessary components of res judicata as: (1) an earlier
action that has resulted in a judgment on the merits; (2) the parties in the earlier action
and the current action must be the same or in privity; and (3) the two actions "'must be
based on the same cause of action [or claim].'" 263 Kan. at 397-98 (quoting Clark v.
Haas Group, Inc., 953 F.2d 1235, 1236 [10th Cir. 1992]). That is a generic statement of
res judicata covering the typical situation in which the plaintiff has filed a single claim
for relief or multiple claims for relief, and the trial court has entered an adverse judgment
on the merits of everything. Res judicata, as it is universally understood, would preclude
the plaintiff from filing another action raising new claims based on the same occurrence
or transaction or reasserting the claims that had already been decided on the merits.

The general statement, however, does not specifically address an action consisting
of multiple claims for relief, some of which the trial court decides against the plaintiff on
the merits and some of which it dismisses for lack of subject matter jurisdiction. And, as I
have explained, that sort of mixed disposition is commonly understood to present
different preclusion considerations that, in fairness, permit the plaintiff to pursue the
dismissed claims in a forum that has jurisdiction. The United States Supreme Court

11
recognized as much in describing the application of pendant jurisdiction in United Mine
Workers. The Court explained that when a federal court dismisses the federal claims
supplying its jurisdiction, the related state claims should be dismissed without prejudice,
thereby permitting the plaintiff to file them in state court. 383 U.S. at 726-27. The
concept has been embodied in 28 U.S.C. § 1367, codifying pendant jurisdiction as
supplemental jurisdiction and recognizing the state law claims for relief to be different
from the federal claims for relief supplying original jurisdiction in the federal courts.
Similarly, Jackson Trak explained the nuanced application of res judicata required when
some claims for relief have been dismissed for lack of jurisdiction and others have been
decided on the merits. 242 Kan. at 690-91.

The Stanfield decision fails to thoroughly assess those different fact patterns. The
decision compounds the oversight by superimposing the test for a transaction that may be
considered a single case or controversy over which a federal court can then exercise its
jurisdiction conferred through Article III of the United States Constitution. As described
in United Mine Workers, a case or controversy—a justiciable transaction—consists of a
common nucleus of operative facts giving rise to a set of legal injuries or wrongs. 383
U.S. at 725. The Stanfield decision then characterizes the factual transaction as a "claim"
and uses that "claim" to define the scope of res judicata preclusion regardless of how
many independent claims for relief a plaintiff has asserted arising from the factual
transaction.

But "claim" as a term to describe a transaction composing a case or controversy is
not the exclusive standard for defining res judicata. Again, United Mine Workers makes
that clear. 383 U.S. at 725 (referring to "plaintiff's claims" encompassed within
transaction and differentiating a federal claim supplying jurisdiction from factually
related state claims that collectively form "the entire action before the court compris[ing]
but one constitutional 'case'"). Moreover, the direction in United Mine Workers that state
law claims dismissed in federal court for lack of jurisdiction could then be pursued in

12
state court would be nothing more than the pronouncement of an empty exercise if they
were immediately subject to dismissal on res judicata grounds. Reading United Mine
Workers that way is both improbable and poor jurisprudence. See Ohio v. Roberts, 448
U.S. 56, 74, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) ("The law does not require the
doing of a futile act[,]" so the State was not obligated to attempt to procure the presence
of a witness who had died.); Anderson v. Dugger, 130 Kan. 153, 156, 285 P. 546 (1930)
("The law does not require the performance of a futile or useless act."); Allen v. Attorney
Gen. of State of Me., 80 F.3d 569, 573 (1st Cir. 1996) ("The law, after all,
should not require litigants to engage in empty gestures or to perform
obviously futile acts.").

The "transaction" or claim (in that sense) a plaintiff sues on in an action does
define the boundaries of res judicata precluding new claims for relief that plaintiff asserts
in a second action against the same defendant. If the new claims arose out of the
transaction and could have been brought in the first action, res judicata would preclude
their litigation in a successive action. But conventional res judicata principles do not bar
claims for relief the plaintiff actually presented in the first action that a court has
dismissed for lack of jurisdiction. Those claims may be asserted in a second action in a
judicial forum having jurisdiction. The Stanfield decision rejected that fundamental
doctrine of res judicata without any direct explanation why, even though Stanfield
apparently made the point. 263 Kan. at 402-03.

The Stanfield decision, however, cites the Restatement (Second) of Judgments
§§ 24 and 25 (1980) and Mattson v. City of Costa Mesa, 106 Cal. App. 3d 441, 164 Cal.
Rptr. 913 (1980), as supporting authority for its refashioning of traditional res judicata
principles into a rule barring the litigation of state law claims previously dismissed in
federal court for lack of jurisdiction. Stanfield, 263 Kan. at 403-04. Neither source does
what Stanfield suggests.

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 In Restatement (Second) of Judgments § 24, the authors define "claim" for
purposes of preclusion rules in terms of a "transaction" comparable to the common
nucleus of operative facts recognized in United Mine Workers and the case-or-
controversy test in 28 U.S.C. § 1367. Restatement (Second) of Judgments § 24,
comments a, b. The definition, in turn, supports the Restatement's position that a plaintiff
may not file a second action against the same defendant asserting new claims arising
from the transaction or claim litigated in an earlier action. See Restatement (Second) of
Judgments § 19; comment b(b) (involuntary dismissal); Restatement (Second) of
Judgments § 25 (Restatement authors characterize § 25 as expressing
"[e]xemplifications" of § 24). But the authors explicitly limit those rules with a series of
"exceptions" in Restatement (Second) of Judgments § 26. One of the exceptions carves
out claims for relief a plaintiff has asserted against a defendant that a court then dismisses
for lack of jurisdiction—the plaintiff may pursue those claims for relief in a new action
filed in a court with jurisdiction. The authors state the exception this way:

"(1) When any of the following circumstances exists, the general rule of § 24 does not
apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a
second action by the plaintiff against the defendant:
....
(c) The plaintiff was unable to rely on a certain theory of the case or to seek a
certain remedy or form of relief in the first action because of the limitations on the
subject matter jurisdiction of the courts or restrictions on their authority to entertain
multiple theories or demands for multiple remedies or forms of relief in a single action,
and the plaintiff desires in the second action to rely on that theory or to seek that remedy
or form of relief." Restatement (Second) of Judgments § 26(1)(c).

The Restatement "exception" governing those claims for relief a plaintiff has asserted
against a defendant and are then dismissed other than on their merits captures a core
principle of res judicata jurisprudence. But the Stanfield decision never mentions
Restatement (Second) of Judgments § 26 or the recognition of that rule in case authority,
including United Mine Workers or Jackson Trak. Recognition of Restatement (Second) of

14
Judgments § 26(1)(c) would have called for a different outcome in Stanfield, just as it
would here.[2]

[2]The Stanfield decision does quote part of comment c to Restatement (Second)
of Judgments § 24 that suggests the rule stated in that section is something less than
ironclad. 263 Kan. at 401. In comment c, the Restatement authors explain that "a
judgment based on the act usually prevents the person from maintaining another action
for any of the harms not sued for in the first action." The comment alludes to some
circumstances in which a plaintiff might be able to assert new claims in a successive
action and inferentially flags the possibility that claims actually brought in one action
could be maintained in a later action. The authors, of course, catalogue just those sorts of
circumstances in Restatement (Second) of Judgments § 26. The comments to § 24 make
multiple references to the exceptions in § 26. The failure of the Stanfield decision to even
acknowledge, let alone discuss § 26, lends an air of incompleteness to its analysis and its
conclusion.

The Mattson decision from the California Court of Appeals does not support the
result in Stanfield. In that case, Mattson sued in federal court for federal civil rights
violations and for state law negligence based on his arrest. The federal court dismissed
the state-law negligence claims for lack of jurisdiction. Mattson filed a negligence action
in state court, but he served none of the defendants and took no other action in that case.
Meanwhile, Mattson elected to go to trial in federal court on his civil rights claims and
received an adverse jury verdict. He then served the defendants in the state action some
two years after it had been filed. The state court dismissed the case. And the California
appellate court affirmed, finding Mattson voluntarily and impermissibly split his cause of
action. The court concluded Mattson elected to go to trial in federal court on the federal
claims alone, effectively splitting off the state negligence claims that had been dismissed.
And he was bound by that election, so he could not hold back the state claims by parking
them in a dormant action in state court. The court suggested that had Mattson wished to
litigate his state claims, he should have moved to dismiss the federal action without
prejudice and then refiled both the federal and state claims in state court. The appellate
court found Mattson's subterfuge to be impermissibly manipulative and an undue burden
on the judicial process. Mattson, 106 Cal. App. 3d at 453-54.

15
 Neither Stanfield nor Herington engaged in anything comparable. They did not
choose to continue to litigate their federal claims to judgment in federal court only after
the dismissal of their state law claims. In each instance, the federal court disposed of all
of the claims in a single order—entering an adverse judgment on the merits of the federal
claims and dismissing the state law claims for lack of supplemental jurisdiction. Neither
made an election to litigate their federal claims alone, and they both diligently pursued
their state law claims. The California appellate courts have repeatedly recognized the
common rule of res judicata that would have allowed Stanfield and Herington to pursue
their state law claims in state court. See Guerrero, 28 Cal. App. 5th at 1107 n.15; Harris
v. Grimes, 104 Cal. App. 4th 180, 188, 127 Cal. Rptr. 2d 791 (2002); Lucas, 47 Cal. App.
4th at 286; Allford v. Barton, No. F074780, 2019 WL 1147624, at *14 (Cal. App. 2019)
(unpublished opinion). They either distinguish Mattson factually because the plaintiff
there elected to go forward in federal court or reject its holding outright. See Guerrero,
28 Cal. App. 5th at 1106-07 (distinguishing Mattson); Harris, 104 Cal. App. 4th at 188-
89 (rejecting Mattson).

In sum, the Stanfield decision's treatment of res judicata lacked any anchor in the
law. The Stanfield rule was premised on an incomplete reading of the Restatement
(Second) of Judgments; the treatise contains a provision that explicitly negates the rule.
And the one California appellate case Stanfield identified as persuasive authority actually
is materially (and rather obviously) distinguishable. The California courts endorse a res
judicata rule that would have permitted Stanfield and Herington to pursue their state law
claims in state court. So does every other state except Kansas, as far as I can tell.

In 2010, the Kansas Supreme Court specifically considered whether the Stanfield
decision should be overruled and declined to do so. Rhoten, 290 Kan. at 93. In that case,
Danielle Rhoten was a passenger in a vehicle involved in a collision in Topeka ostensibly
caused by a police pursuit. She suffered what were characterized as serious injuries.

16
Rhoten filed an action in federal district court alleging federal civil rights violations
against the City of Topeka and the police officer initiating the pursuit and state law
negligence claims against the officer, the City, and the driver of the pick-up truck that
struck the vehicle she was in.

As with Stanfield and here, the federal court ruled against Rhoten on the merits of
her federal claims and dismissed the negligence claims without prejudice for lack of
jurisdiction. Rhoten then filed an action in Shawnee County District Court reasserting the
negligence claims. Relying on Stanfield, the district court entered judgment against
Rhoten on res judicata grounds. Rhoten's appeal made its way to the Kansas Supreme
Court, where the legal worth of Stanfield became a central issue.

In Rhoten, the court largely recited the reasoning of the Stanfield decision without
examining its underpinnings or comparing it to conventional res judicata principles
recognized elsewhere or in Jackson Trak. Based on that review, the Rhoten court
pronounced the Stanfield decision sound, while recognizing its application of res judicata
deprived Rhoten of any opportunity to have her negligence claims considered on their
merits. The court acknowledged: "[T]his outcome does seem counterintuitive." Rhoten,
290 Kan. at 112. But the court held that stare decisis considerations were sufficiently
strong to warrant preserving the Stanfield rule. Rhoten, 290 Kan. at 112.[3]

[3]In looking at the federal law of res judicata, the Rhoten court considered
whether Rhoten had "a full and fair opportunity" to litigate her claims in federal court.
290 Kan. at 110-11. To be barred by res judicata or collateral estoppel in an action, a
party must have been afforded a fair opportunity to have litigated the relevant matters in
an earlier action. See Kremer v. Chemical Const. Corp., 456 U.S. 461, 481-82 & n.22,
102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982). This is often treated either as a necessary
condition precedent for claim preclusion or as an exception that limits claim preclusion in
particular cases. And it is frequently assumed in a given case without discussion. In
Kremer, the Court recognized the opportunity to litigate must comport with constitutional
due process requirements to be full and fair. 456 U.S. at 481-83. Courts have identified
three factors that may bear on the sufficiency of the opportunity to litigate in an earlier
action: (1) The extent of procedural limitations in the earlier proceeding; (2) the party's

17
incentive to fully litigate the issue in that proceeding; and (3) litigation limitations
resulting from the parties' nature or relationship. Rhoten, 290 Kan. at 110-11; see
Johnson v. Spencer, 950 F.3d 680, 709-10 (10th Cir. 2020) (res judicata); Shell
Petroleum, Inc. v. United States, 319 F.3d 1334, 1339-40 (Fed. Cir. 2003) (collateral
estoppel).

The "full and fair opportunity" requirement is not in play here. Nothing suggests
Herington received something less than the constitutional process due her in the federal
case. She doesn't argue otherwise. Herington has been disadvantaged because of the
peculiar rule of res judicata fashioned in Stanfield, which presupposes a fair hearing in
federal court.

The adherence to precedent embodied in stare decisis is a cornerstone of the
judicial process, since it imposes stability and predictability in the law and judicial
decision-making. Individuals, businesses, and governmental entities may manage their
general affairs in reliance on the law as the courts have declared it to be. And litigants
may expect their legal disputes will be decided in a way consistent with rulings in similar
cases. See McCullough v. Wilson, 308 Kan. 1025, 1035-36, 426 P.3d 494 (2018); State v.
Sherman, 305 Kan. 88, 107-08, 378 P.3d 1060 (2016). At the same time, however, stare
decisis is not an inexorable command for rigid adherence to case precedent. A court may
depart from its earlier decisions if it is persuaded those decisions were wrong or have
ceased to be sound because of changing conditions and the benefits of a new rule will
outweigh the harms in modifying or rejecting the old rule. McCullough, 308 Kan. at
1036; Sherman, 305 Kan. at 108.

The Stanfield decision's res judicata rule and Rhoten's acceptance of that rule offer
a prime example of when stare decisis should yield—here in favor of a demonstrably
better and fairer preclusion principle that would allow Herington to litigate her state law
claims on their merits. First, the Stanfield rule seems to be the product of erroneous
reasoning in the sense that the key authorities on which it is based do not support it. The
decision also presents its outcome as the obvious conclusion to be drawn from more
general legal statements about preclusion doctrines, as if the outcome aligned with the

18
settled application of res judicata across the judicial system. To the contrary, the
formulation of res judicata presented in Stanfield marks a gross departure from the
mainstream and seems to be singularly anomalous. See Comment, Kansas' Rationale is
Dust in the Wind: Why the Dismissed Supplemental Claim Exception to the General Rule
of Claim Preclusion is Necessary, 50 Washburn L.J. 511, 525-26 (2011).

I have found no federal authority or cases from other states citing Stanfield or
Rhoten favorably, let alone adopting a comparable res judicata rule. One appellate case
cited Stanfield negatively. The Ohio Court of Appeals dismissed a litigant's reliance on
Stanfield with the observation the case offered "a minority position" on res judicata and
identified no other adherents of that position. Ohio Kentucky Oil Corp., 5 N.E.3d at 690.
So if the Stanfield court simply intended to apply conventional claim preclusion
principles fashioned in federal law, it erred or at least failed to do what it intended. The
outcome was just the reverse of what accepted res judicata principles embodied in both
federal and state law would call for.

A state appellate court, of course, can chart a pioneering trail in the common law.
See Arizona v. Evans, 514 U.S. 1, 8, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995) (state
courts "are free to serve as experimental laboratories"). On such an occasion, the court
might be expected to say as much as a prelude or a coda to the experiment. See, e.g.,
State v. Henderson, 208 N.J. 208, 217-20, 27 A.3d 872 (2011); Dillon v. Legg, 68 Cal. 2d
728, 747-48, 441 P.2d 912 (1968). The Stanfield court did not hint at an innovative
objective. State courts understandably tend to shy away from unique interpretations of
federal law, although they are strictly bound only by pronouncements of the United States
Supreme Court. See Evans, 514 U.S. at 8; State v. Tatro, 310 Kan. 263, 272, 445 P.3d
173 (2019) (United States Supreme Court authority binding); State v. Thompson, 284
Kan. 763, 801, 166 P.3d 1015 (2007) (federal circuit authority persuasive). Even if the
Stanfield court quietly harbored an inventive design, the product may be viewed as a
failure on that score, as well. If a court sets about inventing a better common-law

19
mousetrap, other courts figuratively ought to beat a path to the courthouse door. Some
two decades on, there has been no embrace whatsoever of Stanfield or Rhoten as a model
for res judicata law.

That might have something to do with the out-of-the-wayness of the Kansas
appellate courts. We aren't necessarily thought of as jurisprudential trendsetters. But,
more likely, the sheer idiosyncrasy of the rule weighs against its wide embrace. Nothing
in the general principles of federal preclusion law ineluctably leads to the holdings in
Stanfield and Rhoten. Other courts have consistently applied federal law otherwise on the
particular point. And the striking unfairness the Stanfield rule demands may give pause to
other courts looking at it.

As applied to Herington, the rule prevents her from receiving a merits hearing on
her original state law claims in any judicial forum. The result runs counter to the essential
purpose of the civil litigation process in resolving disputes by determining whether a
party asserting a legal harm has, in fact, suffered a remediable wrong and, if so, to by
ordering appropriate relief. The courts disfavor procedural obstacles thwarting that
objective. Degen v. United States, 517 U.S. 820, 828, 116 S. Ct. 1777, 135 L. Ed. 2d 102
(1996) ("The dignity of a court derives from the respect accorded its judgments [and,]
[t]hat respect is eroded, not enhanced, by too free a recourse to rules foreclosing
consideration of claims on the merits."); State v. Roat, 311 Kan. 581, 591, 466 P.3d 439
(2020) ("Litigants must have some effective means to vindicate injuries suffered to their
rights without being shut out of court."); Fischer v. DeCarvalho, 298 Kan. 482, 500, 314
P.3d 214 (2013) ("[T]he law prefers that cases be decided on their merits rather than on
technical compliance with procedural rules."); Malot v. Dorado Beach Cottages
Associates, 478 F.3d 40, 43 (1st Cir. 2007) ("Nevertheless, we must fairly balance the
court's venerable authority over case management with the larger concerns of justice,
including the strong presumption in favor of deciding cases on the merits.").

20
 Common-law rules should be shaped to facilitate the resolution of legal disputes
on the merits whenever reasonably possible. The Rhoten court's characterization of the
preclusion rule it endorsed and applied as "counterintuitive" precisely because it denies a
plaintiff a merits adjudication ought to strike a clarion cautionary note. Courts make the
common law, and they should do so in the service of the basic purpose of the judicial
process. What Stanfield and Rhoten accomplish simply undermines the process. The
counterintuition of the result is a red flag flying over a badly miscast approach to
preclusion principles.[4]

[4] The Kansas Supreme Court recently affirmed mootness to be a prudential
doctrine that should be cautiously invoked when it fences out parties in the name of
judicial efficiency. Roat, 311 Kan. at 590-92. The court explained that mootness, as
judge-made doctrine imposing a procedural barrier, should be carefully balanced against
the fundamental purpose of the judicial process in that "[l]itigants must have some
effective means to vindicate injuries suffered to their rights without being shut out of
court." 311 Kan. at 591. Mootness and res judicata share common attributes as judicially
created rules promoting efficiency and ostensibly avoiding the needless determination of
legal disputes on their merits. Mootness avoids rulings that would not affect the parties'
present legal relationships. Res judicata avoids rulings on claims that were presented and
decided on their merits or that could have been presented but were not.

To be sure, in some situations, merits determinations may be forfeited to advance
necessary fairness and efficiencies in civil litigation. For example, a plaintiff repeatedly
flouting legitimate discovery requests and concomitant orders for compliance may be
sanctioned out of court. A similarly noncompliant defendant may be sanctioned into a
judgment imposing liability. See K.S.A. 2019 Supp. 60-237(b)(2); Fed. R. Civ. Proc.
37(b)(2). Res judicata in its typical form serves the ends of fairness and conserves
judicial resources by preventing a plaintiff from serially filing actions against a defendant
asserting new claims for relief arising from a unitary legal wrong that could have been
presented and adjudicated in a single action or resurrecting claims that actually had been
denied on their merits. Herington, of course, has done neither.

21
 But the Stanfield rule of res judicata does not advance a sound purpose—it
precludes plaintiffs from continuing to pursue claims for relief they have already asserted
when a federal court declines to consider them for lack of jurisdiction. In that
circumstance, a defendant faces no new or different claims and simply must continue
litigating the same claims in a different forum. The additional imposition on the litigants
is minimal. Here, the federal district court ruled late in the proceedings, granting
summary judgment on the federal claims presumably after discovery on both the federal
and state claims had been completed. Herington, of course, had to file this action in state
court, and the defendants had to formally answer. Those are nominal burdens. In this
case, Herington and the defendants could have agreed to rely on the discovery undertaken
in the federal case. And if they didn't, the district court had the statutory tools to limit
discovery and avoid unduly redundant discovery requests from either side. See K.S.A.
2019 Supp. 60-226(b)(2)(i). This case easily could have been channeled toward a rapid
merits decision.

The actual burden of adjudicating or deciding the state law claims obviously
would have shifted from the federal judge to the Sedgwick County judge. But comity
doctrines promote the resolution of state law disputes by state courts rather than federal
courts. See 28 U.S.C. § 1367(c)(1) (2016); Carnegie-Mellon University v. Cohill, 484
U.S. 343, 349-50, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988); Zell v. Ricci, 957 F.3d 1, 16
(1st Cir. 2020). The Stanfield rule, however, confounds comity, since it requires the
district court to dismiss the state law claims without considering their merits.

The long and short of it is Stanfield advances a rickety jurisprudence. That ought
to weigh heavily against Rhoten's affirmation of the rule as a matter of stare decisis or
respect for precedent for its own sake. See Sherman, 305 Kan. at 108-09 (stare decisis
given reduced sway with "originally erroneous" decisions).

22
 In many circumstances, stare decisis protects the reliance interests of persons who
have entered into contracts or business arrangements or have otherwise undertaken legal
obligations based on the law enunciated in court decisions. See McCullough, 308 Kan. at
1036. Courts ought to exercise particular care in considering material changes in the
common law that would upset those interests. But reliance interests are especially weak
here.

The City of Wichita, its police officers, and its other employees almost certainly
do not shape how they go about their business because they know that if they are sued in
federal court, any companion state law claims cannot be successfully litigated in state
court based on Rhoten and Stanfield. More generally, we may assume most people set out
to act with due care rather than with indifference to or deliberate disregard for the safety
and wellbeing of others, and they would not act otherwise because of a quirky preclusion
rule that might curtail their legal liability. Even if people relied on Stanfield that way,
they would be prompted to engage in negative behaviors rather than ones the law should
encourage. It also seems unlikely that government entities or private sector businesses
would make decisions on liability insurance coverage or risk prevention policies based on
conventional (or odd) preclusion rules. Reliance, then, doesn't provide a strong reason to
retain the Stanfield rule.

In sum, there are compelling reasons to discard the Stanfield decision's
formulation of res judicata in favor of a return to the doctrine as set out in Jackson Trak
and in authorities from state and federal courts across the country. The countervailing
reasons for not doing so have little to recommend them, apart from slavishly maintaining
a consistency that is unfair and in conflict with basic purposes of the civil litigation
process.[5]

[5]In Cain v. Jacox, 302 Kan. 431, Syl. ¶ 3, 354 P.3d 1196 (2015), the court
recognized that res judicata should be applied with flexibility and discernment. The court
cautioned against rigid or wooden applications of res judicata that disserve the doctrine's

23
purposes and the broader objectives of achieving a "justice" in a given case. The court did
not mention Stanfield or Rhoten, and the issue there bore on whether Cain was a party or
sufficiently aligned with a party in an earlier action to be bound by res judicata. Although
the Cain court considered res judicata under Kansas law, the elements of the doctrine are
the same as those identified in federal law.

In the absence of federal authority compelling the specific construction of res
judicata in Stanfield to cut off litigation of state law claims dismissed in federal court for
lack of jurisdiction—and there is none—Cain arguably implies that application could be
independently assessed in this case. In other words, the application of the Stanfield rule to
Herington's state law claims in this case should be determined in light of the purposes of
res judicata and the fundamental unfairness of precluding the litigation of her claims. And
that determination should be made independent of any particular deference to Stanfield or
the stare decisis endorsement of Stanfield in Rhoten. At the same time, however, Cain
does not directly signal a retreat from those decisions. We are, therefore, obligated to
decide this appeal in conformity with them. See State v. Kane, 57 Kan. App. 2d 522, Syl.
¶ 9, 455 P.3d 811 (2019) (Court of Appeals required to follow Kansas Supreme Court
precedent "absent some indication" of departure or change), rev. denied 312 Kan. ___
(August 31, 2020).

Federal Supplemental or Pendant Jurisdiction Over State Claims

Because Stanfield and Rhoten apply res judicata to bar state law claims that have
been dismissed without prejudice in federal court for lack of jurisdiction, I look at how
federal courts statutorily extend and retract their jurisdiction over state law claims. The
way federal courts may exercise their supplemental jurisdiction under 28 U.S.C. § 1367
further illustrates the basic unfairness of the Stanfield iteration of res judicata and
provides the foundation for what may be a constitutional defect in that version.

To begin with the obvious, federal courts are courts of limited jurisdiction. They
do not have original jurisdiction to hear state law claims unless the plaintiffs and
defendants are citizens of different states and the amount in controversy exceeds $75,000.
28 U.S.C. § 1332 (2016) (diversity jurisdiction). In addition to that diversity jurisdiction,
however, federal courts may hear state law claims arising from the same controversy as
federal claims over which they do have original jurisdiction. 28 U.S.C. § 1331 (2016)

24
(original jurisdiction over cases arising under federal law). Federal courts exercise this
supplemental jurisdiction over state claims through 28 U.S.C. § 1367, enacted in 1990 to
codify what had been known as pendant jurisdiction. See United Mine Workers, 383 U.S.
at 725 (recognizing "[p]endant" jurisdiction over state law claims arising from same case
or controversy as federal claims providing original jurisdiction).

Under 28 U.S.C. § 1367(a), a federal court having original jurisdiction of an action
may exercise "supplemental jurisdiction" to hear state law claims over which it would
otherwise lack jurisdiction if those claims "form part of the same case or controversy."
Here, there is no dispute the federal district court had supplemental jurisdiction to hear
the state law tort claims Herington joined with the federal civil rights claims she brought
under 42 U.S.C. § 1983. This is not a case involving federal claims of doubtful validity
ginned up as a device to litigate state claims in a federal forum. Nor is there any question
that the federal claims and the state law claims arose from the same controversy. This
case, then, illustrates a common circumstance for the proper exercise of supplemental
jurisdiction.

In the run of cases, supplemental jurisdiction promotes judicial efficiency. A
plaintiff may bring both federal and state law claims in a single action in a single court
for determination. In turn, the defendant need not answer and litigate factually related
claims in state court and federal court at the same time. Adjudicating factually allied
claims in a single case also eliminates the possibility of discordant outcomes from
different fact-finders in different courts—something that tends to erode public confidence
in the judicial process. See PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1312 (11th
Cir. 2016) (noting 28 U.S.C. § 1367 promotes judicial efficiency and avoids risk of
conflicting judgments); Romine v. Compuserve Corp., 160 F.3d 337, 341 (6th Cir. 1998)
(noting '"[t]he legitimacy of the court system in the eyes of the public'" would be
"'endangered'" by conflicting judgments in factually interlocking state and federal

25
actions) (quoting Lumen Constr., Inc. v. Brant Constr. Co., 780 F.2d 691, 694 [7th Cir.
1985]).

A federal court's authority to invoke supplemental jurisdiction under 28 U.S.C.
§ 1367(a) is categorical. 28 U.S.C. § 1367(a) ("the district courts shall have supplemental
jurisdiction"). But in its discretion, a federal court "may decline to exercise" that
authority in some circumstances, as provided in 28 U.S.C. § 1367(c). In this case, the
federal court relied on 28 U.S.C. § 1367(c)(3), allowing withdrawal of supplemental
jurisdiction when the federal claims furnishing original jurisdiction have been dismissed.
When a federal court dismisses the federal claims, all that remain are state law claims the
court would not have had jurisdiction to hear in the first instance.

There are sound jurisprudential reasons for the federal court to pull back in that
situation. As courts of limited jurisdiction, they simply should be chary in acting when
the foundation for their jurisdictional authority in a given case has been washed away.
Continued dominion over the remaining controversy may look more like the exercise of
judicial power than discerning judgment. Comity, of course, typically counsels federal
courts to defer to state courts in deciding matters of state law. And that call for deference
may be particularly strong when the state's law is unsettled. Indeed, 28 U.S.C.
§ 1367(c)(1) specifically permits a federal court to decline supplemental jurisdiction
when a "claim raises a novel or complex issue of State law."

Congress intended 28 U.S.C. § 1367 to balance judicial efficiency and comity by
allowing federal courts to decide all of the claims between parties otherwise properly in
that forum with the expectation those courts typically would channel any state claims to a
state forum if the basis for their original jurisdiction evaporated during the course of the
litigation. As I have indicated, dismissal of the state law claims would be without
prejudice for lack of jurisdiction—a disposition that is expressly not on their merits
whether the federal court enters its order under Fed. R. Civ. Proc. 41(b) or otherwise.

26
Fed. R. Civ. Proc. 41(b) (dismissal for lack of jurisdiction not "an adjudication on the
merits" whether entered pursuant to Fed. R. Civ. Proc. 41[b] or "not under this rule").

By design, then, 28 U.S.C. § 1367, in combination with Fed. R. Civ. Proc. 41, is
supposed to allow a plaintiff to file the dismissed state law claims in state court for
adjudication. And that scheme has been expressly crafted to prevent a defendant from
interposing a state procedural bar arising from the federal case to preclude a merits
determination of any state claims that had been dismissed for lack of jurisdiction. To that
end, Congress included a provision in 28 U.S.C. § 1367 that tolls any state statute of
limitations for at least 30 days following the dismissal of the federal action, rendering the
refiling of the state law claims in state court timely. 28 U.S.C. § 1367(d). So 28 U.S.C.
§ 1367(d) effectively overrides a state limitations period that otherwise might afford a
procedural defense to the state law claims.

Congress intended 28 U.S.C. § 1367 to carry forward United Mine Workers'
pronouncement that pendant jurisdiction should be construed to allow a plaintiff to
litigate any state claims dismissed in federal court for lack of jurisdiction. 383 U.S. at
726-27. That rule forms a well-recognized component of 28 U.S.C. § 1367. Gold v. Local
7 United Food and Commercial Workers, 159 F.3d 1307, 1311 (10th Cir. 1998) (When a
federal court declines supplemental jurisdiction under 28 U.S.C. § 1367, "[t]he proper
course of conduct . . . is to dismiss the state law claims without prejudice, in order to
permit them to be brought in state court."); 47 Am. Jur. 2d, Judgments § 548 (Dismissal
without prejudice ordinarily indicates "the absence of a decision on the merits leaving the
parties free to litigate the matter in a subsequent action."); 13D Wright, Miller, & Cooper,
Federal Practice and Procedure: Jurisdiction, 3d § 3567.3 at 410-11 (When a federal
court "dismiss[es] the state-law claims without prejudice . . . . [t]his course permits the
plaintiff to refile in state court."); Restatement (Second) of Judgments § 20(1)(b) (A
judgment for the defendant does not bar another action by the plaintiff on the same claim
when the court directs that the action be dismissed without prejudice). The rule presumes

27
the federal court's dismissal for lack of jurisdiction will not itself trigger a bar in state
court thwarting a determination of the state law claims on their merits.

Rule 41's treatment of a dismissal for lack of jurisdiction as a disposition other
than on the merits of the claim underscores and codifies that presumption as a matter of
federal law. See 28 U.S.C. § 2072 (2016) (general rules of practice and procedure
prescribed by United States Supreme Court have force of law); Bank of Nova Scotia v.
United States, 487 U.S. 250, 255, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988) (Federal
Rules of Criminal Procedure have binding force of law); Winston & Strawn, LLP v.
McLean, 843 F.3d 503, 506 (D.C. Cir. 2016) (Federal Rules of Civil Procedure have
binding force of law). Courts have routinely held that a dismissal for lack of jurisdiction
as described in Fed. R. Civ. Proc. 41(b) does not entail a merits determination supporting
a res judicata bar if those claims are refiled. See Costello v. United States, 365 U.S. 265,
285-86, 81 S. Ct. 534, 5 L. Ed. 2d 551 (1961) (Court construes Fed. R. Civ. Proc. 41 as
embodying settled common-law principles that dismissal for lack of jurisdiction does not
go to merits of the claim and "'will prove no bar to another suit'"); Brereton v. Bountiful
City Corporation, 434 F.3d 1213, 1216-17 (10th Cir. 2006); Gold, 159 F.3d at 1311 n.5
(when federal district court dismisses state claims for lack of supplemental jurisdiction
under 28 U.S.C. § 1367[c], "there can be no res judicata effect in state court"). The
Kansas res judicata doctrine established in Stanfield, therefore, materially conflicts with
the operation of and the policies behind 28 U.S.C. § 1367, and that has constitutional
implications.

State law that substantially interferes with the operation of federal law violates the
Supremacy Clause of the United States Constitution. In pertinent part, the Supremacy
Clause states: "This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding." U.S. Const. art. VI, cl. 2. The Supremacy Clause negates state

28
statutes and common law to the extent they substantially impede or conflict with federal
law. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d
407 (1992); Howlett v. Rose, 496 U.S. 356, 371, 110 S. Ct. 2430, 110 L. Ed. 2d 332
(1990) (Supremacy Clause negates state court opinions interfering with federal law);
Hillsborough County v. Automated Medical Labs., Inc., 471 U.S. 707, 712-13, 105 S. Ct.
2371, 85 L. Ed. 2d 714 (1985) ("It is a familiar and well-established principle that the
Supremacy Clause, U.S. Const., Art. VI, cl. 2, invalidates state laws that 'interfere with,
or are contrary to,' federal law.") (quoting Gibbons v. Ogden, 22 U.S. 1, 211, 6 L. Ed. 23,
9 Wheat. 1 [1824]). In short, state law that "'stands as an obstacle'" to the
accomplishment of federal law must yield—an application of the Supremacy Clause
often referred to as conflict preemption. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 376-
77, 135 S. Ct. 1591, 191 L. Ed. 2d 511 (2015); see also Board of Miami County Comm'rs
v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 294-95, 255 P.3d 1186 (2011)
(describing operation of Supremacy Clause).

Particularly relevant here, the United States Supreme Court has recognized
Congress appropriately exercised its authority under the Necessary and Proper Clause of
the United States Constitution when it enacted 28 U.S.C. § 1367 to facilitate the
administration of justice in the federal courts. Jinks v. Richland County, South Carolina,
538 U.S. 456, 462-63, 123 S. Ct. 1667, 155 L. Ed. 2d 631 (2003); U.S. Const. art. I, § 8.
In Jinks, the Court specifically upheld 28 U.S.C. § 1367(d), thereby permitting the
plaintiff to refile in South Carolina circuit court several state law claims dismissed in
federal court for lack of jurisdiction even though they otherwise would have been barred
by the state's statutes of limitation. Recognition that a congressional enactment satisfies
the Necessary and Proper Clause, in turn, gives the measure primacy over conflicting
state law under the Supremacy Clause. See Armstrong v. Exceptional Child Center, Inc.,
575 U.S. 320, 325-26, 135 S. Ct. 1378, 191 L. Ed. 2d 471 (2015) (appropriate adoption
under Necessary and Proper Clause accords enactment status under Supremacy Clause);

29
New York v. United States, 505 U.S. 144, 158-59, 112 S. Ct. 2408, 120 L. Ed. 2d 120
(1992); Dinh, Reassessing the Law of Preemption, 88 Geo. L.J. 2085, 2088 (2000).[6]

[6]The interplay of the Necessary and Proper Clause and the Supremacy Clause
and their cognate elevation of federal law over conflicting state law is both logical and
long recognized. When Congress enacts laws necessary to carry out its constitutional
duties under art. I, § 8, cl. 18 (the Necessary and Proper Clause), those enactments
definitionally have been "made in Pursuance" of the Constitution and must be treated as
"the supreme Law of the Land" under art. VI, cl. 2 (the Supremacy Clause). Alexander
Hamilton explained that connection between the two clauses in Federalist No. 33 as
limiting supremacy to congressional actions authorized in the Constitution as necessary
and proper. The idea easily shifted to decisions of the United States Supreme Court. See
Embry v. Palmer, 107 U.S. 3, 9-10, 2 S. Ct. 25, 27 L. Ed. 346 (1883); M'Culloch v.
Maryland, 17 U.S. 316, 420-24, 4 L. Ed. 579, 4 Wheat 316 (1819). So 28 U.S.C. § 1367
reflects a necessary and proper enactment of Congress under its authority to "ordain and
establish" federal courts granted in art. III, § 1 of the United States Constitution and "[t]o
constitute Tribunals inferior to" the Supreme Court in art. I, § 8, cl. 9. See Jinks, 538 U.S.
at 462. In turn, the statute must be given primacy over conflicting state law, including
judicial decision, under the Supremacy Clause.

The Stanfield res judicata rule undermines one of the principal purposes of 28
U.S.C. § 1367 and, therefore, must yield under the Supremacy Clause. As I have
outlined, 28 U.S.C. § 1367 encourages adjudication of state and federal law claims
arising out of a single set of operative facts in a unified civil action. To that end, the
statute ensures state law claims dismissed from federal court for lack of jurisdiction may
then be adjudicated in an appropriate state forum free from procedural bars resulting from
the initial federal litigation. The Stanfield rule imposes precisely such a bar, thwarting
any review of the state claims on their merits.

Although 28 U.S.C. § 1367 expressly negates state statute of limitations barriers, it
necessarily overrides a state court's reliance on preclusion doctrines, such as res judicata,
as well. That's because a federal court's dismissal of supplemental state law claims for
lack of jurisdiction is not an adjudication on their merits, whether entered under Fed. R.
Civ. Proc. 41(b) or otherwise. A federal judgment "on the merits" can be given res

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judicata effect in later litigation involving the same parties or those in privity with them.
Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S. Ct. 2424, 69 L. Ed. 2d
103 (1981); see Adams v. City of Indianapolis, 742 F.3d 720, 735-36 (7th Cir. 2014).
Conversely, a federal judgment of dismissal for lack of jurisdiction cannot. See Costello,
365 U.S. at 285-86 (dismissal of claim on grounds other than merits typically no bar to
later litigation of claim); Ernst v. Rising, 427 F.3d 351, 366 (6th Cir. 2005)
(acknowledging Costello and applying rule that dismissal for lack of jurisdiction is
neither on merits nor bar to later action on claim).

A state court, in turn, cannot give whatever preclusive effect it wishes to a federal
court judgment entered in a case before the federal court on federal-question
jurisdiction—as this case was. The state court must adhere to federal law governing the
legal effect of the judgment. Semtek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497,
507, 121 S. Ct. 1021, 149 L. Ed. 2d 32 (2001); see Heck v. Humphrey, 512 U.S. 477, 488
n.9, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). The Semtek Court explained the required
deference this way:

"It is also true, however, that no federal textual provision addresses the claim-preclusive
effect of a federal-court judgment in a federal-question case, yet we have long held that
States cannot give those judgments merely whatever effect they would give their own
judgments, but must accord them the effect that this Court prescribes." 531 U.S. at 507.

The Court also explained that a judgment on the merits triggering res judicata is one that
adjudicates a party's claim on the substantive issues it presents. 531 U.S. at 501-02. Thus,
"'[A] final judgment, rendered upon the merits by a court having jurisdiction of the cause
. . . is a complete bar to a new suit between [the parties or their privies] on the same cause
of action.'" 531 U.S. at 502 (quoting Goddard v. Security Title Ins. & Guarantee Co., 14
Cal. 2d 47, 51, 92 P.2d 804 [1939]). Here, the federal district court declined jurisdiction
over Herington's state law claims and did not rule on their merits, draining that judgment
of preclusive effect as a matter of federal law.

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 In short, a state court must give that same legal effect to the federal court dismissal
consistent with the Supremacy Clause. Both res judicata and collateral estoppel depend
upon a merits adjudication in an earlier action for their application in a later action. The
Kansas Supreme Court cannot treat a federal order of dismissal that declines to reach the
merits of the dismissed claims as if it does to impose a res judicata bar or for some other
purpose. But the Stanfield rule of res judicata effectively does just that, impermissibly
usurping federal authority defining the scope and effect of federal court judgments in
federal-question cases and conflicting with the requirements of 28 U.S.C. § 1367. By
functionally denying Herington a state forum to litigate her state law claims, the Stanfield
pronouncement of res judicata conflicts with 28 U.S.C. § 1367 and is constitutionally
infirm under the Supremacy Clause.

In the interests of basic fairness, the Kansas Supreme Court should reconsider the
Stanfield rule of res judicata as poor doctrine fostering bad results. Even if that were an
insufficient reason, the rule should be set aside under the Supremacy Clause as
impermissibly interfering with federal law. Either way, Herington and other plaintiffs
would receive hearings on their claims with no meaningful loss of judicial efficiency or
untoward imposition on defendants.

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