good morning i'd like to call case number fifteen dash one eight five nine james scott at all versus officer kevin reef lieutenant ray collins and jane's towing inc aapl lee's oral argument not to exceed fifteen minutes for plaintiff fifteen two thousand and five the us supreme court tightened the doctrine considerably and this court has recognized that fact in kohls the granville for forty eight f three d eight fifty three eight the court the exxon mobil court itself recognize those at page two ninety three if a federal plan to present some independent claim l b o one that denies a legal conclusion that a state court has reached in the case to which he was a party then there is jurisdiction and state law determines whether the fund that prevails under principles of reclusion if we look at the original district court complaint here there no mention of the state court decisions the source of the injury is defendant acts alone here's the complaint contains by my estimate ten of the eleven claims that pla improper remedy in that situation because next dispute over whether defendant does not apply here because the source of the injury is not any state court decision looking at yes i do have problems there that's for there are three parts to whether the focus here is whether plane of squad to have litigated to federal court fact claims the plate of seek to raise in federal court mandamus decision and its basis are totally separate from the claims that seek to raise in federal court judge trent i'm trying to understand the gist of that argument but i'm wondering if there isn't a preseason question as to whether you should have joined with them an apply depends on whether you were denied the last opportunity to know there  right i'll repeat it sure basically the amberjack decision has cut off litigation in this area so i don't have a case published on published by hand and on published one i to raise litigate and resolve their claims here was through the motion to a man state courts wrongly do not  particularly the rest judicata argument michigan like the federal courts themselves follows the broad rule that any claim that could have been brought has to be brought in that suit or it would be rescue to cut against the subsequent attempt certainly we've laid out in our brief that the claims that were asserted could have been brought in fact the plaintiffs appellants own brief is basically a concession that under m c r three point three zero one which also incorporates two point two zero three they certainly had the freedom to have brought all the various claims that they now seek to assert in the district court in their original mandamus action in the contingent on the fact that there has to be a finding of liability on the part of the individual official in other words there has to have been some wrongful act the individual officer did that then resulted from a policy of the city but unless and until there but we're dealing with something a little bit different here we're dealing with a claim for losing in this context where we're saying that you were obligated to bring every single claim that you could against these particular defendant and i do any of those cases deal with that situation that we are a defendant who was not a party gets the benefit of the because like i said the question of what would the the are the parties such that their liability hinges one upon another even though we have the distinction in the situation that the what the city can be liable for it's still completely contingent one hundred percent on the liability of the officer so the city is stuck stuck as it were with whatever happens to the officer in the prior suit and that's additional claims based on disputed facts were quote for another day and quote for another time in another action well that was a virtual invitation for i will recall that before that the attorney general had actually said you know perhaps they would  d and that was an invitation by the judge at that hearing to say make your amendment that's what the court of appeals in michigan ruling on the amendment issue which is what i was turning to next said you know you had the opportunity right there but instead you went you didn't but you didn't say anything at that hearing about wanting to amend you didn't file any motion instead you signed a stipulated order to dismiss the case and only thereafter after getting another attorney did the pla f decide they wanted to make a motion to amend and as the court explained at length in the michigan court of appeals opinion in this case that's outside the time parameters that are allowed that's where the work or folden doctrine comes in as play plaintiff didn't really argue that in the district court didn't really bring that up and we didn't have to either they brought it up in their brief to this court where they said play this could not litigate this is page forty one of their briefs could not let again resolve their non want to say the michigan courts were wrong and i want this court to act like an appellate court over the state courts and that's exactly what the worker feldman doctrine prohibits this court from doing and that's why the doctrine doesn't effect apply in this settled on the point and have what has been conceded is there was a chance to raise these claims that was at the point at which the mandamus action was filed and it's a bit like the pat benatar song hit you with your best shot the request is inappropriate and then the court denying an opportunity to amend and that's the and that's the end of everything there's never a decision on the merits there's it's not i suppose i would respond to the idea that there wasn't a merits determination there was an merits determination it's not as though the state court said i don't have jurisdiction to decide this mandamus claim the claim decided on the merits and sort of putting all your eggs in one basket is something that a plaintiff does at their peril under the compulsory jointer rule and there's a rational basis for having a compulsory join the rule  avoid piecemeal litigation and allowing these sorts of second third fourth bite at the apple and there's really no logical stopping points of the argument but a last chance to raise claims is what ought to be considered because in this case the motion of men wasn't brought until twenty days after the stipulated order of dismissal and in point of fact procedurally in michigan you can move for relief from the judgment you can potentially file another action years down the line when and where is the logical stopping point for a last chance and so under settled law the question is at the time of filing what claims could and should you have brought and in this case it's perfectly clear that these claims could and should brought against collins in that original action and it was decided on the merits and therefore you can't turn back and say oh we goofed we should have done more than just a mandamus claim here what makes you more generic rule that says you can bring more than one claim at a time but under a dare versus state of michigan which is cited in our brief and under other settled law the whole idea in michigan is that claims ought to be brought together and resolved altogether if there are a lot yeah and that's the other point your honour's is this is all out of one occurrence one transaction there are no additional facts that are played with any specificity in terms of what is the underlying facts or transaction s i don't think so your honor in terms of what the court rules it i think what matters is what is the rule as far as residue the procedure lands in the state of michigan and how that's incorporated in federal court as long as it's one transaction an occurrence which admittedly is what is what here and as long as it's permissive that these claims could have all been brought out once those are the two essential disputed points particular type of remedy that could not be issued where there were disputed facts and here there were disputed facts he client took and kept your client took and kept his it was and it was dismissed with prejudice it wasn't dismissed without prejudice for lack of jurisdiction or for some other reason and so that makes it a merits determination the operative language of with prejudice so you're not you're not you can't claim that there was a determination of the facts but you can't so you said there was some merit determination that mandamus would not issue you because there were disputed facts which in the end and i think is the thing that's troubling to us is that no one has ever looked at the real underlying facts of this case to determine what happened to this gentleman's property correct well and i think my time certainly has run i don't want to take mr bush ants time so i think i left the rest with that point signed by the parties by understanding that the only reason i'm actually in this appeal at this point the clients in this appeal is because we're the last order i would have asked to be taken out of the appeal because it was a stipulated because what we did is we agreed to return the property and he didn't know if any money so he would he received back any of the property that was still in storage which seems telling upon the order that telling right yeah the old yes the only reason that gene stalling is in the case is the the last order to destroy it you have to do with  that but anyway that you know so that's what i'm arguing now all right it is if there's a gray area here all right the court did review merits positioned in the in the fact that the court is taking a standard you know doesn't the don't call the damage but it puts us in a different position there are three common law raise you to cause a requirement and we've been arguing mainly the third whether the plane of squad have  t the claims in the state court and if we don't have a dismissal on the merits then it puts us in what different category and on another area where  a party asserting raise you to pat it has to meet all three or three requirements if they don't meet even if they meet the third requirement that they we've been arguing about if they don't meet the first requirement a final decision on the merits that's well know all right but we're in an area here where you know the requirements are crossing and last assuming that's played us could have it was a very limited opportunity the as you as you probably are aware of the michigan supreme court only takes about two percent of the applications for leave presented to us  any damages hundred eighty thousand dollars is that what's at issue that is and is there any is there any pending charge against the you know i don't you know i have not been able to find you know solid evidence one way or another in terms of whether that's just a continuation of the damages situation in other words what i'm saying is that i have not been able to find anything to indicate a new separate acts of conduct as opposed to simply continue continuing wrong here the officers of the baker various communities i believe are kind of foot soldiers i don't know any of the individual is perhaps mr but if you could address this i don't know that any of the individual municipal departments even keep any of the materials that  are gathered or hollywood going through that up between the apartments how that works mr fink then i probably asked the wrong person the question is there any internal investigation or other action ok anything else