The opinion of the court was delivered by: Honorable Joseph E. Irenas
IRENAS, Senior District Judge
On January 15, 2002, Plaintiff filed a pro se Complaint. This Court dismissed the first Complaint in its entirety, prior to responsive pleading, pursuant to 28 U.S.C. 1915A(b)(1), for failure to state a claim upon which relief could be granted. On February 14, 2002, Plaintiff filed a second Complaint with this Court. Defendant now moves for summary judgment, alleging the second Complaint is barred by res judicata. The facts will be stated succinctly, as they were set forth in this Court's detailed Opinion dated January 31, 2002.
In 1981, Plaintiff was convicted of robbery in Rhode Island and sentenced to fifteen years imprisonment for hijacking a mail truck. After serving thirteen years, Plaintiff was released from prison in January, 1994. Approximately five years later, in 1999, the State of Rhode Island vacated Plaintiff's conviction because, in 1998, another individual confessed to the crime for which Plaintiff was convicted. In January, 2002, Plaintiff filed the first Complaint alleging that the United States, through the actions of Postal Inspector Raoul Vargas, committed: assault; battery; false arrest; false imprisonment; wrongful prosecution; 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. (App'x p.76, ¶ 35). This allegedly resulted in Plaintiff's suffering damages including: loss of income; defamation of character; great embarrassment and humiliation; loss of life's pleasures; loss of freedom; severe emotional distress; severe medical problems including drug dependency; and physical pain and suffering due to physical abuse while incarcerated. (App'x p.75-6, ¶ 34).
By an Opinion and Order dated January 31, 2002, this Court dismissed the Complaint for failure to state a claim upon which relief may be granted. It held that Plaintiff's claims under the Federal Tort Claims Act were not cognizable because the United States is immune from claims arising out of intentional torts. It further held that Mr. Raoul Vargas was not a law enforcement officer. Thus, it dismissed all claims against Mr. Vargas, finding those claims cognizable only against law enforcement officers.*fn1 The remaining two claims, negligent and intentional infliction of emotional distress, were dismissed because Plaintiff failed to allege sufficient facts to support either cause of action. As a result of the January 31, 2002 Order, the case was closed.
Fourteen days later, on February 14, 2002, Plaintiff, through counsel, filed a second Complaint with this Court. This Complaint is identical to first Complaint, with one minor exception - it specifically states that the government employee involved, Mr. Raoul Vargas, is an "investigative or law enforcement officer within the meaning of 28 U.S.C. 2680(h)." (Compl. ¶ 27(D)). The following day the case was referred to arbitration. Defendant filed an Answer on August 13, 2002, and the Court then set a discovery schedule.*fn2
On May 27, 2004, the case was administratively terminated without prejudice due to the illness of Plaintiff's counsel. Upon Plaintiff's motion, the case was reopened on July 19, 2006. On October 20, 2006, Defendant filed this motion for summary judgment on the basis of res judicata.
Plaintiff claims that Defendant's motion should be denied because Defendant waived the affirmative defense of res judicata by failing to raise it in the Answer.*fn3 Although affirmative defenses generally must be pled or are waived, there are exceptions to this rule. The Third Circuit allows the defense of res judicata to be asserted for the first time by motion to dismiss. See Hartmann v. Time, Inc., 166 F.2d 127, 131 n.3 (3d Cir. 1947); Williams v. Murdoch, 330 F.2d 745, 749 (3d Cir. 1964)("In the case at bar there was no answer. The defense of res judicata, therefore, could be asserted successfully at the early stage of this proceeding if it were valid.").
Additionally, the Third Circuit has permitted previously unpled affirmative defenses to be raised for the first time in summary judgment motions. See Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1374 (3d Cir. 1993) (noting that Plaintiffs did not claim that they were prejudiced by the failure of Defendants to assert the affirmative defense of immunity prior to their motion for summary judgment); Charpentier v. Godsil, 937 F.2d 859, 864 (3d Cir. 1991)(noting that when plaintiff was aware of the defense of immunity because it was asserted by other defendants, "a 'defendant does not waive an affirmative defense if 'he raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.'"); Adams v. Gould, Inc., 739 F.2d 858, 870 n.14 (3d Cir. 1984).
As noted by Wright and Miller, "[m]ost courts do not focus on this problem [of waiver of the res judicata defense when not raised in the Answer] and those that are aware of the potential conflict seem content to allow the issue of former adjudication to be raised for the first time on a motion for summary judgment." Federal Practice & Procedure, § 2735 (2007). As the Third Circuit has noted, "the defense of res judicata, ordinarily is pleaded as an affirmative defense under Rule 8(c) of the Federal Rules of Civil Procedure but this is a mere matter of form." Hartmann, 166 F.2d at 138.
Courts in other Circuits have found summary judgment to be an appropriate time for the Court to raise the issue of res judicata sua sponte, or for the litigants to raise it for the first time themselves.
The failure of a defendant to raise res judicata in answer does not deprive a court of the power to dismiss a claim on that ground. While that or similar defenses are 'ordinarily' not to be recognized when not raised in the answer, ...