                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-2008

Courteau v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2948




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"Courteau v. USA" (2008). 2008 Decisions. Paper 791.
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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-2948


                                PAUL A. COURTEAU,
                                              Appellant

                                           v.

                            UNITED STATES OF AMERICA


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY
                            (D.C. Civil No. 02-cv-00659)
                  District Judge: The Honorable Joseph E. Irenas


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 27, 2008


               Before: SLOVITER, BARRY and ROTH, Circuit Judges

                                 (Filed: July 25, 2008 )


                                       OPINION




BARRY, Circuit Judge

      Paul Courteau appeals the District Court’s grant of summary judgment in favor of

the United States of America. We will affirm.
                                             I.

       In 1981, a Rhode Island jury convicted Courteau of a robbery involving a United

States mail truck. He was sentenced to 15 years’ imprisonment and, after multiple grants

and revocations of parole, was released from prison in 1994. In 1998, another individual

confessed to the robbery and informed the State of Rhode Island that Courteau was not

involved. The State vacated Courteau’s 1981 robbery conviction in 1999.

       On January 15, 2002, Courteau, who was at the time serving a sentence at F.C.I.

Fairton on an unrelated conviction, filed a pro se complaint (the “First Complaint”)

against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671

et seq., seeking damages for the alleged torts committed by a United States Postal

Inspector, Raoul Vargas, during the investigation that led to the vacated 1981 robbery

conviction.1 The District Court screened the First Complaint pursuant to the screening




   1
     The complaint alleged that
        Vargas falsified a report that pointed to [Courteau] as one of the
        perpetrators of the robbery when in fact, Mr. Vargas had no such
        information. . . . The testimony and reports generated by [Vargas] caused
        the wrongful conviction of [Courteau] for the aforesaid robbery. . . . Due to
        [Courteau’s] wrongful conviction, he was forced to spend approximately
        thirteen years in prison, which amounted to unlawful confinement.
(App. at A115.) Courteau claimed that, through Vargas, the United States had committed
the following torts: assault, battery, false arrest, false imprisonment, wrongful
persecution, intentional infliction of emotional distress, negligent infliction of emotional
distress, malicious prosecution, abuse of process, defamation of character (libel and/or
slander), and false reports to authorities. (Id. at A116.)

                                             2
mechanism for pro se prisoner complaints found in 28 U.S.C. § 1915A,2 and sua sponte

dismissed it for failure to state a claim upon which relief may be granted. In its January

31, 2002 opinion, the Court explained that (1) the United States was immune under the

doctrine of sovereign immunity as to the intentional torts asserted against it because

Vargas was not a law enforcement officer and (2) Courteau had not adequately pled the

remaining claims.

       Courteau promptly retained an attorney and filed a second complaint (the “Second

Complaint”) against the United States on February 14, 2002. The Second Complaint was

nearly identical to the First Complaint; the only noteworthy difference was that it

identified Vargas as “an investigative or law enforcement officer within the meaning of

28 U.S.C. [§] 2680(h).” (App. at A24.) Significantly, because Courteau was now

represented by counsel, the Second Complaint was served on the United States without

first being screened by the District Court under § 1915A. The United States asserted 14

affirmative defenses in its answer, but res judicata was not among them.

       Following limited discovery, the United States moved for summary judgment on

the ground that the Second Complaint was barred by res judicata, more popularly known

today as “claim preclusion.” The District Court granted the motion and entered judgment




   2
     The statute requires district courts to “review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.” 28 U.S.C. § 1915A(a).

                                              3
in favor of the United States, finding that Courteau was not prejudiced by the United

States’ failure to raise the defense of res judicata in its answer and concluding that the

January 31, 2002 dismissal constituted a final judgment on the merits such that the

Second Complaint was barred. This timely appeal followed.

                                             II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1346(b). We have

jurisdiction pursuant to 28 U.S.C. § 1291.

       We review a district court’s decision to permit a party to assert a previously unpled

affirmative defense by way of a motion for summary judgment for abuse of discretion.

Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1374 (3d Cir. 1993). A district court’s

application of the doctrine of res judicata is a question of law over which we exercise

plenary review. Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 248

(3d Cir. 2006).

                                             III.

       Courteau argues that the District Court abused its discretion when it permitted the

United States to move for summary judgment on the ground of res judicata even though

the defense was not pled in its answer. Alternatively, Courteau argues that, assuming

arguendo the District Court properly considered the res judicata argument, the District

Court erred in granting summary judgment in favor of the United States on that ground.

       Although “[p]arties are generally required to assert affirmative defenses early in



                                              4
litigation, so they may be ruled on, prejudice may be avoided, and judicial resources may

be conserved,” Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), a district court

may permit a defendant to raise an unpled defense by way of a post-answer motion so

long as it is raised “at a pragmatically sufficient time, and [the plaintiff] was not

prejudiced in its ability to respond.’” Charpentier v. Godsil, 937 F.2d 859, 864 (3d Cir.

1991) (brackets in original) (quoting Lucas v. United States, 807 F.2d 414, 418 (5th Cir.

1986)). See also Chainey v. Street, 523 F.3d 200, 210 n.5 (3d Cir. 2008) (“The purpose

of requiring the defendant to plead available affirmative defenses in his answer is to avoid

surprise and undue prejudice by providing the plaintiff with notice and an opportunity to

demonstrate why the affirmative defense should not succeed.”); Cetel v. Kirwan Fin.

Group, Inc., 460 F.3d 494, 506 (3d Cir. 2006) (stating that “affirmative defenses can be

raised by motion, at any time (even after trial), if plaintiffs suffer no prejudice”).

       The District Court concluded, and we agree, that Courteau was not prejudiced by

the United States’ failure to raise the defense of res judicata in its answer. Indeed,

Courteau did not allege prejudice in his brief opposing the motion for summary judgment

and does not allege prejudice in his brief on appeal. Moreover, it does not appear that the

United States’ failure to include the defense in its answer was due to anything other than

the fact that it was not aware of the First Complaint when it filed its answer to the Second




                                               5
Complaint.3 Under the circumstances presented, the District Court did not abuse its

discretion in permitting the United States to raise the affirmative defense of res judicata in

a post-answer motion for summary judgment.

       Having determined that the issue of res judicata was properly before the District

Court, we turn to the res judicata effect, if any, that dismissal of the First Complaint had

on the filing of the Second Complaint. For res judicata to apply, “a defendant must

demonstrate that there has been (1) a final judgment on the merits in a prior suit involving

(2) the same parties or their privies and (3) a subsequent suit based on the same cause of

action.” Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991).

       It is well settled that a “[d]ismissal for failure to state a claim is a final judgment

on the merits for res judicata purposes.” Post v. Hartford Ins. Co., 501 F.3d 154, 169 (3d

Cir. 2007) (citing Federated Dep’t Stores v. Moitie, 452 U.S. 394, 399 n.3 (1981)

(discussing the effect of a dismissal pursuant to Fed. R. Civ. P. 12(b)(6)). Courteau

makes much of the fact that the District Court dismissed the First Complaint pursuant to

28 U.S.C. § 1915A as opposed to Fed. R. Civ. P. 12(b)(6), but this is a distinction without

a difference: the legal standard for dismissing a complaint for failure to state a claim

pursuant to § 1915A is identical to the legal standard employed in ruling on 12(b)(6)




   3
     As noted above, the District Court sua sponte dismissed the First Complaint for
failure to state a claim pursuant to the screening mechanism of § 1915A. There is nothing
on the docket to suggest that the United States was ever served with this complaint prior
to, or following, its dismissal.

                                               6
motions. See, e.g., Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

       The second and third prongs are also easily satisfied. Courteau and the United

States are the only two named parties in both complaints and the Second Complaint is

practically a verbatim recital of the First Complaint. Although the Second Complaint

specifically identifies Vargas as “an investigative or law enforcement officer within the

meaning of 28 U.S.C. [§] 2680(h),” we agree with the District Court that a party “does

not get another bite at the apple simply by citing to an additional statute in the [Second]

Complaint.” (App. at A10.) If Courteau disagreed with the Court’s disposition of the

First Complaint, he should have moved for reconsideration or filed an appeal rather than

file a second action.

                                             IV.

       For the foregoing reasons, we will affirm the order of the District Court.




                                              7
