court it is hornbook law that when you're trying to determine the preclusion of a fact of a state court judgment in federal court you look at the state law principles that's the margaret case from the united states supreme court and when it's applying and trying to decipher what is the law in the state of ohio it turns first to hey has a supreme court of ohio spoken on this word has and says the restatement second of judgment and more importantly we have to district court a counter claim and a defendant sets it up as a defense but not a counter claim the doctrine of merger i e bar will not prevent the maintenance of a second claim so if you apply that law to what went on here there should have been no bar applied to the subsequent constitutional claims that were brought in the federal court as a result of the state court action the district court applied a transaction or occurrence test  rather than the logical relationship test when it started to go through it's now us is about what is the compulsory counterclaim rule in ohio and that's important that distinction and that i believe errors important because this court  already defined what is the transaction or occurrence mean within the compulsory permissive counterclaim rule of law under federal thirteen which is identically worded to ohio rule thirteen matter of fact in the reddick decision which is cited in the district court that that case from the white house supreme court is replete references to federal civil procedure thirteen right miller federal decisions so that you would you would think that the court would bar all and it has borrowed federal rules to decipher what is a transaction or occurrence in a logical relationship so we have the bomb in vs bank of america case which is cited in our brief to report a decision from this case in two thousand and fifteen and it goes through what is that logical relationship test main and it clearly said that whether the issues of law in fact raised by the claims are largely the same and whether substantially the same evidence would support  ok what the district court applied to get to the logical relationship test and this is ed page eight fifty of its opinion an award which is docket number forty five it called hey as long as things have same common matters to them that's the words used by the district court or as long as they involve the same basic controversy those are the words of the court then they involve the same transaction or occurrence well that's not  essentially compulsory counterclaim under ohio law what's what's your best case or argument for that there's two answers to that one judge moore and i thank you for that question though with the first answer is it doesn't meet the transaction or occurrence test under bollman because certainly when you're bringing like consumer actions that was such as that was brought in the state court proceedings they have nothing to do with the civil rights equal protection due process counterclaim matter of fact the elements of that transaction is in the statute itself it's in the ordinance of the county itself about what they need to prove to prove unfair or deceptive trade practices but there's a second kind of more important issue as to yes to your question why isn't there a bar here and that relates to something that the district court did when it did its analysis of the occurrence and i we do believe they used the wrong test on the logical relationship test and that is it only looked at that from the standpoint of the consumer affairs action that was brought in state court and did not look at it all from the standpoint of the separate permeating action that was brought in the state park and why is that important and i can i c court ok so it only looked at that from the consumer affairs ordinance standpoint why is the permeating the separate claim important it was played as a separate claim it's in paragraphs forty four through fifty two fifty three of the complaint the first the many complaint which is document thirty five one is that there was a clear and certain equal protection of one claim that was played with respect to the  facts about what went on there summit county had a chief building inspector who sat on the board of the air conditioning contractors association can't now can chapter these are the competitors to keep heating and cooling ok he sits he supposed to be the policemen of the permitting process and he's sitting on the board of directors of that competitor organization ok and what did we plead and  i'll tell you why it goes further than what we just pled but what did we plea as that none of those contractors that operated in summit county told permits were fined for not pull in perfect pay penalties for not paying for not paying their fines on their permits or were subject to enforcement action could you have raised these claims in the state court proceeding with the answer that question is absolutely not i'll tell you why judge moore i think we have a right to presume that a county or in any civil rights setting a city complies with its laws ok we that doesn't mean you couldn't raise those claims in this proceeding well i can only raise them if i knew him ok and i had the evidence to back them up if you if you knew them did you raise these matters as for me the defense in this state we raised equal protection and due process in general as affirmative defenses in the state court oh then you had to know about them i want to tell you why don't you raise them as a primitive defenses and not know them and for counter quell first of all the restatement is very clear that where the same facts very very important question is what how could i have not known that how could i have known that the the head of the building standards department who does the permanent fauresmith sat on the board of the competitors of  heating and cooling how could i know at the time my answer because that's the pinpoint time is it in under rule thirteen there's a there's a demarcation of time it says it's only if you know what at the time of the new enough to make an affirmative defense right but i did not know enough to bring a is determined in the state of ohio by the restatement of judgments but even even if you carry the analysis further there was a missed cause of action here ok that was known and alice was supplied by the district court to the separate permit enforcement action only to the consumer affairs action where it said hey mr pride's how you could have known or should have known about the specs will so i'm spinning it back to the building department enforcement action in the permanent process where not only was it everybody got a free pass installers and guess what they didn't do they didn't pull permits they may get fined they didn't have to pay penalties and they had no enforcement actions brought against them again judge more i could not have known that at the time i found the answer up we only found out in discovery in the state court lawsuit i could not possibly have known at the plea that as a separate class of one claim why couldn't you have amended well the so so that goes back to what is a compulsory counterclaim judge that the composer a counterclaim in ohio is defined by a certain point in time it says at the time you file your answer anything that happens afterwards is permissive permissive means you can bring it re can choose not to bring it i certainly could have amended maybe maybe maybe i could have the question becomes was i required by law it and under the rule which says the demarcation line is at the time you file that answer that's it anything that happens afterward is permissive counterclaim then that that does not answer the question as to could i have amend i know my time is might sound the seven seconds and i do have some other claims i'd like to address i think at this time i will sit down but i do plan on using my three minutes to address the other claims you can only do that if your opponent has addressed them yes i understand  saying that there are actually numerous legal reasons why this case should be dismissed regular kind of being the first one but it didn't do that for you to see just compensation in state court no deprivation of a constitutionally protected interest no denial key thing is all the district court rulings and the just court gave a number of reasons for why she dismisses click case they're all based upon six circuit precedent in ohio law and they should be affirmed let me also emphasize butte at the outset that they are federal law claims were dismissed based upon refuted kata and when it comes to race judicata the trial court or the district court followed six circuit precedent there are three cases we cited in our brief run do you go and carol which all involve a situation like this where a defendant is sued in a state court to civil enforcement action by a governmental entity and they allege constitutional claims that arise out of or relate to that civil enforcement action so those cases all three of those cases deal with situation like this they all say that those arise from those same transactions or occurrences and race judicata applies because those are all claims that could or should have been brought in the state court proceedings they did have to have those claims at th time of filing the answer is that right well i say i have two responses to that argument first the first off is that this court is held in the toll test case and that relied upon prior precedent that raised you the cot it's actually an independent defense from i would say that that difference between a permissive and a compulsory counterclaim is that the permissive counterclaim is defined as being not arising from the same transaction or occurrence the compulsory counterclaims are claimed to do right from the same compulsory amend and so the courts often will say if you had the opportunity to amend the complaint that also applies but and would we be applying ohio for this purpose as opposed to some federal ru on then right basically the case is a deal with the definition of a transaction or occurrence and they say very clearly a case arising out of claims that arise and relate to a civil enforcement action in that case of the nuisance abatement action filed by cleveland heights those are claims that that we're right from the same transaction occurrence and in fact for compulsory counter claim but the tie is the time in question that i'm concerned about not whether at the moment whether it's the same transaction or occurrence  well i'm relying on the the toltecs case the court cited and that cited other cases as well that talked about race judicata being an independent defense but let me just let me just go back to the second part of my answer which is  you actually made the point during the argument these are absolutely calls post recount claims that were that arose prior to the date that they filed their answers and a key part of that is particularly on the question of due process an both of those were raised as deferment defenses and in the run to go case which is the case case the exact same thing happened in that case they alleged them as affirmative defenses but didn't allege them as counter claims and the court said obviously then they are counter claims so i gather that your opponent's argument is that that as a result of discovery in the state case it became more apparent that there was an equal protection claim that they were being to the question of when did their ninety three claim accrue and that's defined by federal law and that it's dealt with the question of notice it's an objective inquiry as to when they would have been put on notice as to that their need to assert their rights in this situation there and they could raise in one thousand nine hundred three claim in that state proceeding that's absolutely correct no bar in terms of it being an administrative type of proceeding or anything like that no and the key thing on that is what happened in this case was that they made it an intentional and deliberate choice they filed all their claims there was a sticker proceeding filed and they raise them as a friend advances in fact they argued equal protection selective prosecution and due process in their arguments below in their summary judgment motion but the same time while the state court action was pending they chose instead of bringing their constitutional claims in the state court action they filed them in federal court the case was originally filed in january two thousand and fourteen well before there was any final judgment they filed all their claims in federal court and the problem with that strategy was they ran into to two issues one is younger abstention makes very clear that you can't go into a separate action when you've got a pending state court civil action so at that time the trial courts but the district court specifically found that they had the opportunity to bring their constitutional claims in the pending state court proceedings so they were clearly put on notice that they had the ability to do that at no time did they seek to amend their complaint to bring those claims into the state court proceeding even though the federal court has specifically said that they could do that and then what happens then is once a final judgment is rendered race judicata now operate bar to their ability to bring them in a second court proceeding so and those ways really raised a kind of younger tension work together to kind of prevent this very thing where you basically are looking for a second by the apple by bringing  claims after a final judgment been rendered that could have been brought before mr pride tell i think arguing to us that more grievous conduct came to light for him that you know folks were serving on the board and competitors were having taking having other advantages that the county acquiesced in that i think that's the nature of his argument that i could not have brought this on the earlier what do you say i would say that he clearly could have brought in earlier and the reason why your honor is because it's the issue when the cause of action accrues so in any situation once you put on notice that there is a violation under one hundred three the cause of action accrues obviously during the course of discovery you may find out additional facts to support that claim a better proof but that doesn't necessarily mean that the cause of action did not accrue and in here and this is the key thing on particularly on the due process argument this due process arguments completely maryland they're suggesting that the county did not provide notice an opportunity to be heard when we in fact filed a complaint that requested  before any imposition of sanctions requested things and gave them an opportunity heard before an independent judicial officer with the right to discovery the right to subpoena third party witnesses so the only potential due process argument they could potentially have would be something that it should have been given prior to find the complainant two thousand and twelve and if that's the case they clearly would have known of that at the time the complaint was filed but on the equal protection claim the same principle applies when they allege their answer they specifically alleged like enforcement in their defense so they were put on notice they knew that they had a potentially protection violation and when you read the complaint their original complaint in january two thousand and fourteen their allegations all relate to alleged selective enforcement that occurred prior to the filing of the complaint in two thousand and twelve there in fact their whole premise is that they were treated differently because a complaint was filed against them and not against others so they would have been aware of that when the complaint was filed in two thousand and twelve that's why their cause individual capacities yeah thank you your honor that actually relates to the whether the effort to amend the complaint in two thousand and sixteen relate it back to the original case so the key thing about that question is this is actually kind of a unique situation because what happened in this case was in their original complaint in the caption they said suit in their official capacity i then moved to dismiss all of the official capacity defendants on the grounds that the complaint was really just against the county did not respond to that argument in response to my two thousand and fourteen motion to dismiss so they fact of leeway to abandon those claims the district court then looked at the q pleadings agreed with me that they had been sued in their official capacity only and dismissed all of those defending even though they state she stayed the case otherwise against the county so as of two thousand and fourteen they were dismissed two years two years after that and three and a half years after the stake after the causes of action accrued they sought leave to amend the pleadings and the district court said no that it's after the statue of limitations and so the individual capacity claims were did not relate back to the original complaint and that this isn't was based upon sued them in their individual capacity and then the court said ok in light of the fact we're going to light a proceed in this case they did the exact opposite and then the people were dismissed so we got a statement  mentioning it as individuals so in the very beginning of the complaint that says there's a vague reference to individual capacity but this is a key thing they never end in the body of the plane or in the caption identified any particular defendant as district court pointed out after she dismissed them in two thousand and fourteen they didn't come back with a motion for reconsideration or any kind of argument suggesting that they weren't the only time that they did was after the statue limitations had expired so we don't think actually the court needs to reach that question because obviously if the claims don't have any merit it doesn't matter whether they're suing people in their individual or official capacity but we think the ditch a court was absolutely right that that day could not that the individual capacity claims were filed after the statue limitations with my remaining time i did want to address one thing in their reply brief they attempt to make accusations against us for somehow misrepresenting the record and the portions of the brief that they cite we not only accurately state the record we cite the court to the specific pages of the hearing transcript and the lines of the hearing transcript that we're relying on and one of those admissions was in the course of the hearing transcript that the trial the district court judge was just simply asking mr pryor tell about this individual capacity argument and ultimately and these are the lines that we quoted in the brief where the court says but there was never anybody does need it is being sued in their individual capacities mr pryor tell yes and if that's a pleading mistake on my part i will take that judge so all we did was quote the judge's words and his words and the same thing happened respect to our description of the state court's rulings i simply was quoting what the state court judge ruled and they were absolutely accurately depict in the record so i do want to make that clear but ultimately the record speaks for itself the district court ruling speaks for itself we think the district court was correct in both applying race judicata and dismissing the claims on the merits as well as dismissing the state law claims which have point in lisboa what it happened is that the nuisance law claim had been brought in the you could be slipping into that nuisance claim brought a claim saying hey this is all racially discriminatory that was her counterclaims you already brought it entered into a consent decree to shut down the club and then after entering into a consent decree tried to bring in one thousand nine hundred three action and judge sutton correctly said hey that's common transaction or occurrence and you knew of that at the time you certainly knew it at the time you filed your counter claim in the first case and carol doesn't even address the issues we're here debating nobody even raise this issue in terms of this dual track reza judicata we know what the house cream court said but more importantly we know what intermediate  and i think the rule is that you follow intermediate ohio appellate courts unless you're convinced that your house supreme court would not follow those intermediate courts here they work in tandem he mentioned the fact that i filed a subsequent civil rights action in federal court if you read this restatement of judgments that's the precise interest protected as to litigant offending party versus litigate bringing parties when you're litigate bringing party what you don't want to happen is claim splitting you don't want people to hold in their hip pocket a claim lose and then bring it out and say i got another one for you when you're the defendant under younger abstention and staying of the federal action or are you pretty much on notice that you should have everything you can have decided in the state court action decided there no that's not what her younger ruling was her younger you ruling was look let the steak or proceedings go through and then we'll see what happens remember she'd she didn't  to close the case younger abstention didn't require me to and even if it did member judge get goldman's answer could i have go back and mend the complaint that's not the test for compulsory or permissive counterclaim a state of ohio so even if that was the message being sent it didn't file a counterclaim unless it's a compulsory counterclaim only if it meets that compulsory counterclaim test and i stuck with the form he chose if i choose to litigate my nine hundred eighty three claims in federal court i have that option if there permissive counterclaims that's what the restatement