                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0698n.06
                            Filed: September 26, 2007

                                                   06-1378

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


JEFFREY D. BROWN,                                       )
                                                        )
        Plaintiff-Appellant,                            )
                                                        )
v.                                                      )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR THE
JOHN E. POTTER, Postmaster General,                     )    EASTERN DISTRICT OF MICHIGAN
United States Postal Service,                           )
                                                        )
        Defendant-Appellee.                             )



        Before: DAUGHTREY and MOORE, Circuit Judges, and SHADUR,* District Judge.


        PER CURIAM. The plaintiff, Jeffrey D. Brown, appeals from the district court’s grant

of summary judgment to John E. Potter, Postmaster General, on the basis of claim

preclusion. Brown contends that the district court erred in holding that because he could

have amended a complaint filed in an earlier, separate action to include the claims

presented in this complaint, his current action is barred by res judicata. Specifically, the

district court concluded that the current claims ripened before the first action was dismissed

and, thus, that claim preclusion bars them from being raised in this subsequent suit. We

disagree.




        *
         The Hon. Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by
designation.
06-1378
Brown v. Potter

       In our recent ruling in Rawe v. Liberty Mutual Fire Insurance Co., 462 F.3d 521 (6th

Cir. 2006), we reiterated that the doctrine of res judicata does not apply to claims in a

subsequent suit that were not ripe at the time the first suit was filed. See id. at 529-30

(citing Katt v. Dykhouse, 983 F.2d 690, 694 (6th Cir. 1992)). Indeed, in Rawe we

specifically rejected the argument – made by the defendant in this case – that res judicata

should bar the second suit because the plaintiff had failed to amend his first complaint to

include claims that later became available to him. Id. at 530. As we also noted in Rawe,

the majority rule is that “‘an action need include only the portions of the claim due at the

time of commencing that action,’ because ‘the opportunity to file a supplemental complaint

is not an obligation.’” Id. (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 4409 (2d ed. 2002)) (additional citations

omitted).


       Here, the parties agree that at least some of the claims brought in Brown’s second

suit were not ripe for judicial review at the time his first action was filed. As a result, we

conclude that this action is not barred and that summary judgment was improperly granted.


       We therefore REVERSE the judgment of the district court and REMAND the case

for further proceedings.




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