honour's like to reserve three minutes for rebuttal my name is william factor and along without that meant we were present quality associate a victim of racial discrimination whose claims have not been reviewed by any court because of the erroneous decision of the court below i'm not going to review the facts in detail but i would like to highlight certain events over all this is a dispute between david and goliath where because of the district court's ruling david wasn't permitted into the by dismissing the complaint the trial court denied any ability for quality associates to have its claims of discrimination traditionally determined these claims have been raised in the st proceeding that was filed in the state court we don't believe so your daughter why would they be composed three counterclaims there because they are not logically related to the breach of contract claim to adopt that argument and that was the argument decision of the time of the trial  would require all claims between parties to a contract to be brought in a single action and that is not the rule under the ohio civil rules and the worth federal court decision so we believe that while in every dispute there may be certain underlying facts in common in this case the discrimination claims which are based upon a statutory framework requires different bird to proofs and different elements go into it are not logically related to the breach of contract claim that was brought in the state court the discrimination claim relate to the purchase agreement and the terminations agreement and the alleged breaches by procter and gamble of those they were motivated by racial discrimination we don't believe they are related your honor we believe that the breach  contract claim is simply based upon whether or not one party lived up to its contract contractual obligations or did not were discrimination claims that race the underlying reason why you say they breached  it we believe that what they were discriminated in a number of different factors and that's one of them independent of the contract independent the contract your honor i thought it all related to the contract though relates to the decision to require q i to sell a business operations that's the allegation of the breach of contract as it is not your honor the contract determination agreement simply required that the contract we terminated not that its its business operations to non minority vendors but isn't that i mean one of the cases i get i guess i get mixed up you seek to and course the contract against procter and gamble's and the other case seek to avoid it on the basis of duress eleven dollars that you claim that there's a breach i thought that was one of the the claims that you made was they required you to do at that point in time those claims are not related to the discrimination claims the contract does contain a separation clause such as if the court void one version one provision of the contract other provisions can parts of the forcible and parts not if it was direct that resulted in the signing of the dresser regarding the release of the claims then all claims and that provision of it could be separated out i mean you're talking about arrests in the execution of the agreement are you not correct so how could you have the rest in the execution of parts parts of it but not the other part your honor we would also still have that the claims for the breach of contract claims w survive despite determination agreement these were obligations owed by p g these are not new obligations entered into between the parties soley in determination agreement p and g always had the obligation to pay q a i for inventory of materials and the like so the dealing with determination agreement not with the purchase agreement it still it was a term of a show of the relationship your honor in that i was forced to sell its business to non minority vendors at a lower price than the value we think about the purpose of the compulsory counterclaim rule in ohio and in the federal courts isn't the purpose to have one litigation resolving all the related claims and all of these are relating to the business relationship claims when there's ever a contract between the parties to be litigated when actually that's not what they say that all claims they say the logically related claims that arise from the same transaction or current that's what the law  it is a lot not all claims it's more limited but but to adopt the reasoning of the trial court and proctor and gamble would require that that's that's your conclusion that give it a little support i mean think cause of action so this would be the st case that we were able to find and we found no cases one way or the other so this would be the st case that says all claims related to it where a contract exist between the parties including discrimination claims must be brought in the single action but your position on whether these two different actions involve many of the same factual issues there are some facts that underlie but there is additional facts words employed to discrimination case we have to prove intent we have to prove that the minority vendors were treated differently than our client was in a breach of contract action is just whether or not the contract was complied with or not complied with but it would be safe to say that of the factual issues that you agree some of which are the same that many of them are the same i would not agree that there are some but not many but not many are all right and why are not why are these not offshoots of the same basic controversy between the parties because the terminations agreement related to the termination of the purchase agreement and those calling for related to that issue and there were even though there was a relationship between the parties we viewed the discrimination claims would be a very different context and a different legal standard different burden of here's what i don't understand i think this is just a follow up to the same question that judge moore asked you you had these two companies that had a business relationship for a long period of time and for whatever reason something went wrong and now they're separating this relationship and it's just hard to understand why these different claims are not offshoots of the same basic controversy which is the the breaking up of this relationship in your outer what you said i for whatever reason we believe that if the reason the scream of tory is stopped based upon the contractual relationship it's based upon the intent of procter and gamble to not do business with minority vendors you have a case that you would cite that addresses whether a discrimination claim can be brought in a separate action from an underlying contract we found no such claim and as i said a few moments ago neither the trial court nor of proctor gamble found a case that says if you have a breach of contract claim and you also have a discrimination claim that those claims must be brought in the same action so another question that this case raises as a puzzle for me at least is that the state court he has not reached final judgment in the state trial court correct correct so is there any case that you know of either in your favor or against you that says that the nd quarter here the federal court can apply a compulsory counterclaim rule when the st court has not reached a final judgment have a compulsory counterclaim rule but at the time the ohio case is still ongoing when the federal district court decides your claim should have been a compulsory counter claim in state court direct and then we have the the perplexity here that the state court you went to the state court after this adverse ruling right in federal court you went to the state court and said please let me file a compulsory counterclaim in state court right we did your honor and the state court said no correct why did they say no the court state court believed that it was too late in time that case in the pending for some time and did not want to further delay the resolution the state court case but they didn't say when the state so i think judge moore asked you was there any case that ruled on this issue whether civil rights claims have to be filed with contract claims hisle cases well there is about the ohio compulsory comic claim rule right here this trial court did writer that decision your honor and when that case is finalized we do intend to proceed with any appellate rights we have at that decision so one thing that's perplexing to me is that the ohio courts statement ruling is a one page ruling and it says for reasons stated on the record following the oral argument for those reasons in our record do we have any idea we wouldn't because the district court here ruled the poor of this ruling from the state court correct your honor and i do not recall whether or not the  submitted a transcript of that hearing i don't believe that they did but i'm not one hundred percent certain of that issue and the ruling as judge griffin says says that the claims were compulsory counterclaims that should not be added to this case to the case at this stage so would the proper procedure for the district court have been to this day the federal crissy things until the state court was resolved i believe that would have been the perfect course of action if you asked for that we did not your honor because we did we do believe in maintaining that our discrimination claims or do not logically relate to the breach of contract claim so we want those claims resolved by the district court you mentioned earlier that you weren't arguing race judicata move and you you conflated those two the briefing does address mood yes but the purpose of the final judgment rule in terms of plame claim preclusion is at least as far as i understand it is there's always a possibility that the in this case the state court can change their mind about those prior rulings so that's why generally speaking you don't you don't consider something to be precluded even tell the case in which that came up is done so why would this be a case where we shouldn't follow that rule your eye was not argued supplies procter and gamble argued that this appeal is moot because of the state court decision on know you didn't raise it in the pellets brief in the opening brief director are they then responded to that in the in the reply brief but you all are talking only about moodiness from your standpoint it seems to me that the better argument would be this is not for your honors may please the court eric combs on behalf of the the district court's decision to dismiss to ai's complaint in our response brief we've set for three hundred independent bases for a firm but i'd like to start with the district court finished which is its correct determination that you guys claim under  and one was a compulsory counterclaim so we set forth in our brief we believe this case sets forth a very straightforward application of rule thirteen a as it's been interpreted in the ohio supreme court case and redig do you have a case that applies in court number two a compulsory counterclaim rule of the jurisdiction of court number one where court number one has not reached a final judgment know and that's why i'm asking you for help it seems that the st court did reach a final judgment and the nd court then says it should have been raised as a compulsory counterclaim in number one and i'm wondering you know if you know of any case that did what this district judge did here i'm not aware of any but under the compulsory counterclaim rules the policy underlying those rules to prevent duplications of effort still apply with respect to that case whether that state case or the previous multiple litigation the same issues is exactly what all three color claim was meant to prohibit and that's exactly what's happening here and if we were to say the rule requires a final judgment we would be saying in ohio permits multiple litigation to be guy i'm going despite this mandatory  counterclaim rule and it defeats the purpose of the rule i would think i would have one hundred percent agree otherwise you're left with res judicata and collateral stoppel and i don't think there's there's any teeth i mean because going and then the i think the main point is it's an interesting argument but it hasn't been raised by quality assurance or quality associates has it has not and that would be it's an academic well what if what if this is the rule should we decide this issue well i don't see it for us to weigh whether whether ohio's rule requires a final judgment or compulsory counterclaims rule to apply i mean that's that's not one of the issues i see in the briefs that the issue was not presented forfeit i would agree yes and i would also say that i'm not the fact that i'm not aware of the case is perhaps the result of the fact that i didn't think of that issue because i think it is why would you think of the issue i think the issue would be the other side's issue correct the district court had stayed in federal action so that your opponent could if the district court thought this court should have been raised as a compulsory counterclaim in state court did the district court have stated the federal action so that your opponent could go to state court and seek to raise this one thousand nine hundred and one claim as a compulsory counterclaim my answer would be  no because the requirements of rule thirteen a and in the state of ohio which is what the district court was to apply were clear that this case should have been brought case was still pending that's this is the concern that i have that the state court case was still pending so why not have the federal court stay the action in federal court so that the ai people could raise their claim they're the defendants in state court they could raise their claim there in one thousand nine hundred and one claim as a counterclaim in state court and the only you're arguing there is a logical relationship between the two claims right that  essence of your position is there's a logical relationship between the two claims so the ideal of the whole litigation structure is to have one lawsuit resolving all of those claims a green so why shouldn't q a i be able to go to state court and raise it's what you're saying is a compulsory counterclaim what they're saying is not and so why shouldn't the federal district courts day its action and then what w happen well the state court could say yes you may raise your compulsory counterclaim or no it's too late and state court already ruled out the nation it has now because it ruled it was you so i guess but my answer your question judges to what end because i don't it has already gone state court and i want you to adjudicate our civil rights claim that's in the federal court and the argument well you should stay the federal court civil rights action until this state court rules well that's already happened so there's no reason to stay it for a ruling since there's already been a really right that's my response which i was a really it was futile it was on the merits but correct but even in the hypothetical i guess my question for you judge would be to what end because if the federal court the district court had stayed the case and said to a i am staying your case while you go back to the state court where it should have been brought in to be clear could have been brought and they went back and one of two things would happen correct either the state court would say you are permitted to amend your counter claim and bring it here in which case the federal district court would say we will end the case because you're bringing it in another court or the state court would say as it did here you cannot bring your case here which is a judgment that is due full faith and credit by this court and therefore it would be in the district court supreme court case of phone versus waste management seventy one ohio state rd for eight in which the court quoting the restatement of the log judgments section thirteen says a judgment may be final sense as to part of an action although the litigation continues on to the rest what that the judgment of the trial court with respect to this claim is final as to this claim whether it is subject to appeal or not is a different question that is under ohio statutory law where you can appeal a judgment but imagine a situation as the section as common eat a section thirteen of the restatement of judgments contemplates as an example where you have a partial summary judgment grant that case there is a final judgment on that case even though the rest of that case goes forward so on the merits of that case it is a judgment on the merits that does underfund under the high state supreme court in the restatement judgments  issues when there's always the possibility that it could go the other way ok let me try this out maybe there's another way to look at this i was concerned about the same question but the ohio ruling that dismissed the nd attempt to bring these claims occurred after judge black's decision in this case right correct so it seems to me maybe you would to analyze this is to say that it had judge black relied upon claim preclusion as in other words being bound by the state court decision as the basis for dismissing this case it seems to me that's probably wrong under the final judgment but he did made i think i'm just looking at this again he made his own independent assessment of what the ohio rule called for not having had the benefit of an ohio ruling on it at that point and if he's right about that then it seems to me is on his we don't promise this decision if we ruled in your favor so long as we didn't promise it on claim preclusion then that would run afoul of the final judgment rule does that make sense to you i agree  affirms that judge black in the district court got it correct that this was a compulsory counterclaim then i don't see an inconsistency because of course that's precisely what the state court ruled so let me just finish up by saying i mean it was pretty sure that  you were going to answer the question so i'm really i'm really asking you that question to give the appellant the benefit of what i mean what i'm thinking here so they can respond whether that makes sense or not and it is a peculiarity to be sure that we're dealing with a back and forth that this court case ended up back in state court after the district court's ruling here but i would submit to you that that was a choice made by q a i to cast their lot again in another court it doesn't matter if my analysis is it doesn't as whether they went back and whether they got a ruling in favor or oppose and then we don't really care for purposes of our case because we're not considering whatever happened down there to be produced it correct i mean i i would say that at this point whether it's under the race judicata arm of claim preclusion because my interpretation of fung in ohio law is that it is a fact a final judgment for purposes of race judicata or issue preclusion where a state court judge with all the facts all the arguments the same parties everything reached a determination on the issue either way the future federal court whether this one or now so many months later too late i think the issue the answer is a little more detail than that your honor under ohio law well st of all she also the trial court also found that the claim had been released as a part of the terminations agreement but under ohio law under rule thirteen a a compulsory counterclaim shall be brought at the time the answer is filed it is if it is not it is the day after the answer is filed technically untimely therefore a later attempt to amend a counterclaim is not simply analyzed under rule fifteen for the amendment of pleadings there's a special part of rule thirteen called thirteen f which deals with omitted counterclaims and under thirteen if you have to identify a justification for the  their brief they say what would make sense is if during the course of discovery in the state court case they found evidence of racial discrimination that they didn't know about at the time at least that would arguably satisfy thirteen f right  arguably but is is that is that this case or no is there any allegation that they just recently discovered that race was behind all this no part of the thirteen a test is that the claim was in existence at the time that it at the state cour at the time it was required to be filed in state court and they didn't know about it there's never been any allegation that they learned something subsequent all of these events happened prior to the filing of the state court case initially  the other thing i would say about the state court or your honor is that the one exception that could have arguably applied under thirteen f was when justice requires and i think the reason the trial court did not find that justice required it is because of the other determination that the court made which is that the claim had been released under the terminations agreement in the state court that they were not trying to avoid terminations agreement under duress they're only doing that in the federal action is that right i see my time's up if i could answer your question your honor that was that was the point i was going to close with which is at the end of the day whether these the determination of whether these cases are logically related can be rest precisely on that dichotomy in the state court q ai is suing to recover damages as a result of a breach of that terminations agreement or they are enforcing it or try to avoid their in seeking to enjoy the benefits to them of that terminations agreement in this court they are arguing that it is void a bowl by virtue of duress can't they simply cannot and i've never seen any case you have a compulsory comically rules so you can't have separate actions like this that raise consistent fences and else indeed it was considered that  consider the possibility of the federal court determining that terminations agreement was the result of duress and voiding it and a state court granting q a i damages on the basis of the terminations agree when you g yes seventy one ohio state rd for eight and the quote i read was from page four hundred and twelve thank you very much think you're on your honor to address your question i believe that if this court decides that the decision on the our state court's decision on our motion flee to file nd minute complaint is a recently affirmed the trial court or the district court that would be incorrect i think that that is had ruled based upon create clean preclusion that may or may not be problematic but when i look at it again doesn't seem like he did that he simply made what i understand to be an independent assessment of a higher rule thirteen a and said you had to bring it you know in ohio and you didn't now the fact that that might or made might or might not have been cooperated by the ohio court later doesn't it's interesting but as seem to be to be determinative one way or the other and if i'm right about release language of the truck or to elected not to proceed with that issue it did not decide that outcome and mentioned it i think primarily the footnote that i now into your question sure it's certainly we could determine that it had persuasive effect even if not preclude so if you got judge black saying well this is what i think thirteen a means seems logical and then you have a state court coming along later and say the same thing why is that not at least persuasive whether it's final or not i think that it's interesting whether it's persuasive use for this people decide it think the court could say that what we've done is consistent with the the state court the trial court decision understanding that there's an opportunity for us to take that matter on appeal why isn't it persuasive because it was primarily based upon the arguments presented to judge black and it is a repeat of those arguments many of the case in cases were cited and we believe again our position remains that these are not the same issues these are this is not where i know in the final analysis your claim  race is different and we shouldn't treat these compulsory counterclaim rules that we've discussed at length today in the same way we do for every other case because of the section one thousand nine hundred and one allegation in this case and that sort of at the bottom of your argument is not correct or on it is there any cases as there is no case that says that there is no case that says to the contrary thank you i see that my time is up i thank you for time we request that you reverse the decision of the district court thank you both for your argument with the court