geologist he worked for twenty two years for the in an apartment transportation in the low level nonpolitical job of geologist to improve the asphalt quality of roads or the comfort and safety of everyone using the indiana highways which is quite an important thing to do even though he was in a low level job in the last week of november two thousand and fifteen he made a political statement about immigration which was a hot issue shortly thereafter in the next week we can use ember political appointees made false allegations against him and terminated so mr darst we of course are quite familiar with this story having had does the one come up to this court i would like you to address why what methodology you think a court should use in assessing the scope of a claim that is before it that was before the st court and because of course that's one of that's the key step when we when we deal with claim preclusion and let me suggest to you t particularly taking into account the fact that initial claims are sometimes supplemented by later events that come along sometimes sciri even formally amended or amended by practice that rule fifteen largely speaks in terms of trials but the principle i think holds more broadly when you look at this case and you see the scope of the events had hadn't happened but the even if you think of the standard mcdonnell douglas test you know the position was open and they continue to look for replacements they do find this replacement this young man who gets put in put in the position so as the case was ultimately developed and presented to the district court the st time around for resolution  this choice not to put him in the spot two years later it looks to me like it's hard you know mr moore jones looks to me like it's part it was became part of the case  so the court then went back and relied on its argument that even though it was not part of it one and then i'll tell you a little bit about why it was  two thousand and eighteen i think the one judge would as read is looking at ok i looked at those exact same passages and given your or your client all the benefit of the doubt i wondered if the district court on its own just addressed just raised the point and just addressed it because i thought that would be very unlikely it's extremely fact specific and that's not it doesn't seem to be what happened when you look at it at the finally in that you submitted in the district court on may th of two thousand and eighteen document number seventy three on the docket you on behalf of your client of course you wood is pointing out and so my question is perhaps the same one the judge would is asking and that is by injecting it into the litigation and having the district court right what understand like i understand the path that the litigation traveled you've been very clear on that but it remains does it not that you briefed it summary judgment that that's what we briefed the judge to write this i think my view fact that he was not rehired in a less qualified person was hired we didn't have any discovery and we did not have any opportunity to two thousand and fifteen germination case the higher the supreme court case lucky brand dungarees vs ourself questions group rules against that position of the history court that r manager daniels and director cockrum likewise there's no dispute the does a one ended in a final judgment after the district court entered summary judgment for the defendants and this court affirmed the dispute is over the last element whether d there's an identity of the cause of action but here there clearly d is so mr jones can i can i just interject i mean i don't think this case is nearly as easy as the district court may have thought and there's a debate in the the world of civil procedure an issue and claim preclusion the like about the degree to which somebody is required to bring into what i'll call case number one something that they could so are they required for example to supplement pleadings under rule fifteen are they required to bring supplemental state claims even though they don't independently fall within the jurisdiction of the federal court system there's no diversity of course this would not be a diversity case because the state isn't a citizen of itself and so if you're required even to bring all these just scrushy carry things in permissive counterclaims as well as compulsory counterclaims then this case would be pretty easy but the courts typically don't go quite that far and so this case strikes me as almost a little bit of a hybrid between claim an issue there's the original claim various theories but then as the cases developed along comes the the posting of the job after the two years the four applications through the online inbox mr moore jones gets hired mr does or doesn't throw his name into the hopper and this paragraph in the actually in is judge scudder's pointing out the preparation it looks to me as though in terms of defining the claim the parties agreed to expand this claim in this particular case out to these subsequent events and if as different because lucky doesn't say you can't expand a case it just says you don't necessarily expanded when new events happened but i don't know how you reconcile sort of the actually litigated part which reminds me of the issue preclusion with the scope of the original claim parg here no i think your honour's right that this case doesn't fall within lucky brand because we're not talking about two separate cases that were address different matters and they're their trademarks and different issue that's why this case i think is nevertheless in response to the state's motion for summary judgment he inserted the failure to rehire claim it was briefed and the district court didn't just discuss it but the district court expressly entered summary judgment for the defendants on that claim finding that mr dasa had not shown that he applied and was rejected for the position or any connection between his charge of discrimination and the hiring of his replacement with the district court discussed that and entered judgment on and rule fifteen permits parties to expand the scope of the case through litigation conduct and while it authorizes and perhaps it's a good idea for the parties to file a motion under rule fifteen to conform the pleadings to what's actually due to kid rule fifteen be expressed expressly says that that's not required and this court has previously held that that's not required for purposes of of a later preclusion from an earlier judgment i mean on says wiener check nobody aside from myself has mentioned rule fifteen degrees but it's kind of need to find a theory for requiring mr das to be bound by something that didn't even hadn't even happened yet at the time he filed his initial complaint yes your honor and i think what binds him as while he may not have been required to and this may not have been a mandatory claim that had to have been brought and dolls a one the reason he's precluded from relating gating in another two is that he that one he can't now come back in this case and challenge how that was handled and also one but ok if you go down that road mr jones can you respond to your adversary's point that it was pretty clear that there was no fire there was no opportunity for factual development of that aspect of it and so i i'm interpreting mr darcy position to be well you know we included it in there in the summary judgment papers kind of out of an abundance of caution but we were not given an opportunity to develop the claim factually through discovery or in any other way your honor i think that in both my recollection is and doesn't want and certainly in this case that while a summary judgment briefing has gone on going the federal rules expressly provide an avenue for a litigant who needs factual development to respond to and why he couldn't have gotten that before the failure to file an affidavit under five thousand and sixty with a request for discovery summary judgment briefing it's not an abuse of discretion for a district court to deny a request for so there is a lack of discovering a lack of factual development but to some extent that is the consequence of mister litigation strategy and failure to support his request  was actually litigated by the parties and ended in judgment true to here in dollars and to mr dasa is alleging that it was not just retaliation when he was not rehired and said a replacement selected but he also alleges that it was discrimination and that's where we get into the sort of the claims splitting aspect of claim preclusion when mr das i chose to inject sherry to rehire and dots a one at that point he was obligated to bring all  the sidelines and if it had been properly raised he could have you know filed the five thousand and sixty affidavit he could have sat down and thought about ok now that i'm into you know this rehiring situation is there anything else is you know are there other legal theories are there other you know suppose for example you know that he had to have a chance to develop facts that would say that in dot all the time for prior employees doesn't require online application i know that you say that it's different but you know maybe maybe there were maybe there are factual variances in dot's practices somebody would have wanted to look at and so without clear notice that this is all now in the case he's quite disadvantage  i don't think so and i think that's because i think had the state injected that issue as a side issue and at summary judgment briefing maybe there's sort of the fairness or the concern about notice would be better taken but here as mr dasa himself who chose to inject that issue in response to the state's summary judgment motion without having had adequate discovery allegedly and without having a chance to develop the claim and he has to live with the consequence of that decision he could have certainly appealed that to this court and not the one but chose not