dissenting:
I part company because I do not believe the issues raised in the eviction suit are the same as those raised in the FDCPA action. The facts are not related, nor would the actions make a convenient trial unit. See Jones v. Fisher Law Group, 334 F.Supp.2d 847, 851-52 (D.Md.2004) (applying test set forth in Restatement 2d of Judgments § 24). Even assuming that Cross could have brought a third-party complaint against Arakaki in the original action, the FDCPA claims do not involve the lease itself but the use of unfair methods of enforcing Cross’s obligations. For sure, Arakaki’s conduct was mentioned in the cross-complaint, and thus was known to Cross at the time. However, Arakaki had no interest in the outcome of the eviction action except as counsel for InPac; the eviction action resolved—and could only resolve—whether Cross had the right to stay in her apartment. The FDCPA suit, on the other hand, puts Arakaki’s practices at issue and subjects him to personal liability. In this sense, the legal consequences of a successful FDCPA action are different from the original suit. See Ellis v. Crockett, 51 Haw. 45, 56, 451 P.2d 814 (1969). Further, pursuit of an FDCPA cross-complaint in the eviction suit would have complicated that action, prolonged it, and conflicted InPac’s counsel, which would have adversely affected the manageability of the summary proceeding. In addition, the state district court is a court of limited jurisdiction that is neither established nor set up for hearing matters such as those arising under the federal act. See HRS § 604-5. Finally, it seems to me that Arakaki did not have the same interests as InPac in the eviction suit; InPac’s interest was to gain possession of Cross’s apartment, to collect rents allegedly owed by Cross, and to defeat Cross’s claims under the lease agreement. Accordingly, I don’t think Arakaki was in privity with InPac, either.
Nor do I believe the FDCPA action is barred either by the release—which is limited to parties to the eviction action—or by collateral estoppel, because neither the FDCPA claim nor the HRS § 480-2 claim was litigated in that suit.
I would, therefore, reverse.