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DeNardo v. Calista Corp.4/22/2005
No. 5890
BRYNER, Chief Justice, dissenting.
I. INTRODUCTION
Plaintiff filed three state and federal lawsuits against his former employer. After the first two actions were dismissed, the superior court dismissed his third, holding it was barred by res judicata and the judicial policy against claim splitting. Plaintiff appeals. Because the stipulated terms of the dismissal in the first state court action preserved the plaintiff's non-federal claims, neither res judicata nor the doctrine against claim splitting bars the third action. We therefore vacate the dismissal order in the third action and remand for further proceedings.
II. FACTS AND PROCEEDINGS
Daniel DeNardo filed three state and federal lawsuits against his former employer, Alaska Newspapers, Inc., (ANI) and its majority shareholder, Calista Corporation. ANI had employed DeNardo as an advertising sales representative from October 1999 until his termination in July 2000. It is the superior court's dismissal of the last-filed of these three lawsuits, on grounds of res judicata and the policy against claim splitting, that leads to this appeal.
First lawsuit. DeNardo filed his first lawsuit against ANI, Calista, and eight former co-workers in state superior court in July 2000. His complaint in Case No. 3AN-00-8753 CI alleged numerous claims, including breach of contract, retaliation for filing claims with the Department of Labor and the Equal Employment Opportunity Commission, and negligent and intentional infliction of emotional distress based on harassment by, and favoritism toward, some of ANI's female employees. DeNardo amended his complaint on August 7, 2000, but the changes are not material for purposes of this appeal.
Second lawsuit. In October 2000 DeNardo filed his second lawsuit against Calista and ANI. He brought this action in federal court in Case No. A00-309-CV, and based his claims on the same facts asserted in his state court action. The federal complaint alleged state law claims of negligent and intentional infliction of emotional distress and federal law claims of gender discrimination and sexual harassment under 42 U.S.C. ยง 2000(e)-2000(e)(17) (Title VII).
Calista and ANI removed Case No. 3AN-00-8753 CI, the state court action, to federal court in November 2000, where it became Case No. A00-351-CV; in December defendants moved for consolidation of the two federal cases. United States District Judge H. Russel Holland ordered consolidation, but in April 2001 remanded Case No. A00-351-CV to state court while retaining jurisdiction over Case No. A00-309-CV.
Following this remand, DeNardo offered to dismiss his now-remanded state court action, Case No. 3AN-00-8753 CI. The defendants accepted his offer, and on April 27, 2001, the parties signed a three-paragraph stipulation prepared by defense counsel for dismissal of Case No. 3AN-00-8753 CI with prejudice. In May 2001 Superior Court Judge Elaine M. Andrews signed defense counsel's proposed order granting "the Stipulation to Dismiss With Prejudice."
Calista and ANI then moved for dismissal of the remaining federal action, Case No. A00-309-CV, contending that as tribal entities they could not be sued under Title VII, because neither was an "employer." The United States District Court granted their motion in November 2001. Judge Holland's memorandum dismissal order stated, however, that because the court had no original jurisdiction over the Title VII claim, it "declines to exercise supplemental jurisdiction over plaintiff's state law claim for the infliction of emotional distress." The order also stated that it "is without prejudice to pursuit of any state
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