prevents the lawsuit that was filed in federal court originally there were several tort there was a tort action filed in the state court in missouri and this stems from october of two thousand and fourteen which was  at that time the royals were in the world series and that was a big deal in kansas city it had been twenty nine years since the royals had been in a world series in arthur brown went to an entertainment district in downtown kansas city called the power and light district in the power and light district there is that there's the space that's outside there's just and then there are restaurants around and bars on the inside and mr brown was watching the game on the big screen and he had a couple of drinks from one of the establishment so he went into one of the establishments which is called o'dowd to use the restroom he was directed there and as he was leaving there were three gentlemen who well the three men who who told him to leave that he was not welcome on the premises that he needed to leave he hurled racial  insulted him indicated they were employees of the dubliner and so mr brown who was suffering from a mill an old man and had sunglasses on went to find some police officers so he could make a complaint instead of making a complaint against the employees of the power and light district he was taking to the security unit  overheard them talking about what they should do with him and whether or not he should be charged with trespass even though he hadn't done anything that would warrant trespass ultimately he was written up for tr pass after he refused to sign a statement that was dismissed and he went to an attorney brian barge and filed a case for malicious prosecution false imprisonment of assault battery  negligence unfortunately in state court mr burgeon broke did not respond to discovery did not respond respond to sanction motions and the judge in state court  two u s c section nine hundred eighty one is a statute that stems from the civil rights act of eight hundred sixty six it requires that a person to be to have a should under that statute that a person it is based on race and it has to be in contract now we brought this in federal court because it is a separate cause of action from the cause tort claims that were brought in state courts of counsel what i need to know is what underlying facts are different this case in the your honor that the facts of the underlying facts in the incident were the  however the facts necessary to prove the elements of the tort claims and necessary to prove the elements of the nine hundred eighty one case are different for battery assault malicious prosecution there is no element that that an individual needs to be discriminated against there is no element that it has to be regarding a contract though those even though they were brought up in the initial tort claims they were not necessary for those to for the second one is the identity of the cause of action and some of the cases say whenever you could have brought an action if you didn't bring it then it missouri courts specifically collins versus berg indicates that you look specifically at the fact that each individual case in this case even though technically under rule sixty seven point zero one there was a judgment on the merits because because the rule says that a dismissal with prejudice is on the merits mr brown has never had an adjudication by a jury or a judge based on the was dismissed with prejudice and the court in that case indicated that the claim should not have been dismissed even though the plaintiffs representative of two minor children who had a wrongful death action because of the murder of their mother even though he has the answers to iraq are tories were to say the least somewhat smart alec and not serious the court did go it did determine that  talk about what is the identity of a cause of action and as i said in collins versus burke you look at the individual facts of each of each of the cases now in film of this isn't a typical case because most of the time when there's a decision in the lower courts or or the first court it's based on the merits not based on somebody not complying with discovery and in this case the are the underlying decision was not even though it was technically under the law based on the merits it really wasn't based on the facts of the underlying case now i see but i'm into my rebuttal time and i'd like him if there aren't actions between the same parties on the same cause of action this is true even if the subsequent action is based on a different theory or seeks a different remedy forth to support that cause of action as the thirty two operative facts which were set forth in the jackson county action and that's the key to this case she  court of competent jurisdiction the jackson county circuit court you have a final judgment on the merits and you have the same cause of action against the same parties and their privies there's been a lot of talk in the argument by appellant and in the briefing about the underlying sanction but i've respectfully submit to this court the underlying sanction should have nothing to do with this court's determination we cite in our briefing the  conversions case the missouri case that said a which had a similar fact pattern to the underlying case here there was a sanction for failing to respond to discovery the sanction ended up in a final judgment which was determined under missouri law to be a final judgment on the merits in our case the jackson county judges dismissal was a final judgment on the merits and you can't look behind that because if you start looking behind that say well why was there a judgment and do we agree that it's fair that this particular appellant has to live with the errors of his counsel then you would have to look behind every jury verdict that results in a final judgment you'd look behind every final judgment in the first case and use a subjective analysis and that's not what this quarter judge sachs did you simply take the fact that you have the same thirty two operative facts that resulted in the final judgment on the merits you've got the same parties on both sides and that results in race judicata the collins versus berg reliance is really misplaced because collins versus berg in touch involve two entirely different causes of action the first case that was brought in federal court in collins versus berg alleged fraud undue influence on a caretaker who had moved in with columns mother before she died and there was allegations of changing the will so on and so forth in the second case and collins versus byrd that was filed in state court while the federal court case was pending and that case was filed after there were certain letters written to the caretaker saying get out of the house the collin's own the house we want you out of the house and if you don't leave we consider it to be a trespass after the caretaker would leave she got sued for trespass those two set of facts happen on different times different facts entirely so it's completely inapplicable here but most importantly the reason collins versus berg is not controlling here is you had the federal in the state court cases proceeding simultaneously in our case the state court case had been dismissed with prejudice and so there's the same analysis done in the plight race judicata was never considered in collins versus byrd because collins versus berg both cases were still active and so it doesn't support plato's theory here the other case of the two that the appellant relies on his column for cohen versus securities fraud case summary judgment for defendant defendant moves for sanctions under rule eleven get some good one hundred thousand dollars sanction then a second lawsuit is brought for malicious prosecution and what the court found there was the second case could not have been brought at the time of the first case because one of the necessary elements of malicious prosecution is you won the first case and so one necessarily had to follow the other so again collins vs lupo not only different operative facts but one had to follow the other so neither of the cases that are cited by appellant in their brief support the position that they're advancing them for there are several different parts of the appellant's briefing where they make the statement the cause of action stems from different facts occurring that night they say it on page fifteen of their br they say it on page sixteen of their brief and they say it on page six of their reply brief that's simply not the case is as the court has pointed out this morning it's the same operative facts word for word number paragraph by number paragraphs filed in both state and federal court and therefore there is no other conclusion that these cases came out of an event that night made in both cases and as a result since the state court case had been dismissed with prejudice on the merits the federal nine hundred eighty one case could not proceed and we believe judge sachs correctly arrived at that counsel let me ask you this that the nine hundred eighty one climb one of its elements is a particular state of mind is it not particular state of mind by one climb and the common law tort claim that was brought out earlier i respectfully say no your honor for this reason in fact twenty one that was pled in both state court and federal court it says the men cursed at him including the n word and two other obscenity so what was pled in the jackson county case supported a claim from one thousand nine hundred one you had the protected class the plaintiff was black secondly you had the discriminatory act use of the n word and third interference with a protected activity his right to be on that premise and have drinks watching the world series game so that's exactly why they they filed the same thirty two facts in federal court to support the one thousand nine hundred one as they had filed in the state court for the different courts and so for that reason we believe it's it arises out of the same operative fact from a public policy standpoint we believe public policy supports the decision judge sachs made and otherwise a litigant such as mr brown could continue to refile causes of action after he loses using the could simply refile and refile and refile using a different moniker as the cause of action here both cases were the same we think race judicata applies and we respectfully request that the judge saxon's decision be affirmed verdict director which tells what facts are necessary to be proved in order to have a cause of action they are distinctly different then the the verdict directors in that the missouri tort claims in the missouri has the missouri approved instructions which are mandatory to follow and in none of those cases does it does that require a discriminatory intent to in the in the tort claims now i want to talk a little bit more about what i think the real issue what if it's far as i'm concerned the reason i got involved in this case in the real issue here is that an injustice was done to mr brown and he's never had an opportunity to seek redress hopeful that regard to his predicament really caused by the fact that with prejudice rather than without prejudice and that's why we have a final vote for him playing well potentially and i think in this situation we don't but yes i'm the fact that his claims were more or dismissed with prejudice did provide harm to him and it was based on what was done by his previous lawyer who had not brought up a discrimination case now and looking at the