NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0811n.06 No. 11-1604 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT RAYMOND EL DER; L ANA EL DER, Plaintiffs-Appellants,

v. HARRI SON, TOWNSHI P OF; ANTH ONY FORL I NI ; VI J AY PARAKH; ERI N HARDCASTL E-MEHL HOSE, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

BEF ORE: ROGERS and KETHL EDGE, Circuit Judges; MARB L EY, District Judge. *

PER CURI AM. Ray

mond and L ana E lder appeal the district court’s judgment dism issing their civil rig hts action filed under 42 U.S.C. § 1983. Be cause the district court err ed in finding that res judicata bar

red the Elders’ c laims, we REVERSE and REMAND for further proce eding s. The Elders have filed multipl e lawsuits arising out of their disputes with township officia ls during the construction of their “dre am home” on the shores of L ake St. Clair in Har rison Township, Michig an. Those disputes came to a head on August 9, 2007, when Ray mond Elder and Ordinanc e Offic er/B uilding I nspector Erin Har dcastle- Mehlhose had a phy sical alterc ation. Acc ording to the Elders, Har dcastle- Mehlhose assaulted Ray mond Elder and then initiated a cr i m i n al complaint falsely acc using him of c ommitt ing a n assault and battery

on her.

The Honor able Alg enon L . Marbley , United States District J udg e for the Southern * District of Ohio, sitting by desig nation.No. 11-1604

Elder, et al. v. Harrison, Twp. of, et al. The Elders’ first lawsuit was a mandamus action filed on J anuar y 9, 2008, ag ainst Har

rison Township and Building Offic ial Vijay Parakh in the Macomb County Circuit Court, seeking a final inspection of their home and the issuance of a cer tificate of occupa

ncy . Ha rrison Township subsequently conducte d a final inspection of the home and issued a ce rtificate of occ upancy to the Elders. The mandamus ac tion was dismissed without prejudice for “no progress.” Next, on August 6, 20 0 8 , t he Elders filed a complaint ag ainst Har rison Township and Supervisor Anthony For lini in the Macomb County Circuit Court, claiming defa mation, defa

mation
per se, and loss of consortium. The Elders alleg ed that For lini, during an interview with Fox News,

ac cu s ed Ray

mond Elder of committing a crime with respe ct to the alterc ation with Har dcastleMehlhose. After filing this complaint, Ray mond Elder proce eded to trial on the criminal char g es arising out of t he altercation and was acquitted by a jury on Octo b er 2 4 , 2 0 0 8

. A m onth later, on November 26, 2008, the state court enter ed an order in the defa mation case g ranting the defe ndants’ motion for summary

dispositi on on the basis of g overnme ntal immunit y . On May 14, 2009, Ray

mond E lder broug ht another la wsuit in the Macomb County Circuit Court, this one arising out of the alterc ation with Har dcastle- Mehlhose and his subsequent criminal
prosec ution. Ray

mond E ld e r ’ s a

me n d e d c o mp la in

t a ll eg ed battery , malicious prosec ution, and abuse of proce ss ag ainst Har dcastle- M eh l h o s e and neg lige nce and vicar ious liability ag ainst Har rison Township. The defe ndants moved for summary dispositi on, asser ting that Ray

mond Elder’ s claims

wer e barr ed by res judicata and the compulsory joinder rule. The state court denied the defe ndants’ motion on the basis that Ray mond Elder’ s claims wer e not ripe when the defa mation case was filed. By stipulation of t he parties, Ray m o nd Elder’ s claims ag ainst Har rison Township wer e dis missed

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Elder, et al. v. Harrison, Twp. of, et al. without prejudice

. Ray

mond E l d er ’s cl aims ag ainst Har dcastle- Mehlhose wer e stay ed due to her bankruptc y

petition, and the ca se wa s closed without prejudice for a dminist rative pur poses. There afte r, on August 9, 2010, the Elders filed the instant civil rig hts action ag ainst Har rison Township; For lini and Parakh, in their individual and officia l capa cities; and Har dcastle- Mehlhose, in her individual capa city

. The Elders asser ted the following claims: (1) excessive forc e in violation of the F ourth Amendment aga inst Har dcastle- Mehlhose; (2) malicious prosec ution in violation of the Fourth Amendment aga inst all defe ndants; (3) retaliatio n in violation of t he First Amendment
ag ainst all defe ndants; (4) conspirac y to violate their constitutional rig hts ag ainst all defe ndants; and (5) supervisory and municipal liability under Monell v. Departme nt of Social Servic es , 436 U.S. 658 (1978), ag ainst Har

rison Township, For lini, and Parakh. Har rison Townsh ip and For lini filed a motion for summary judgme nt and to dismiss , asser ting that the Elders’ action was based upon the

same fac ts and evidenc e prese nted i n t h ei r 2008 defa mation case and was there fore barr ed by the doctrine of res judicata. Parakh and Har dcastle- Mehlhose concur red in this motion. Following oral
argument, the district court g rante d the defe ndants’ motion, concluding that res judicata barr ed the Elders’ c laims, and enter ed a judg ment dismiss ing the case . This timely appea l followed. “We revie w de novo a district c ourt’s application of the doctrine of res judicata.” Bragg v. Flint Bd. of Educ ., 5 7 0 F.3d 775, 776 (6th Cir. 2009). The Full Fa ith and Credit Act, 28 U.S.C. § 1738, re q u i re s a fede ral court to “g ive the same prec lusive eff ect to a state-c ourt judgme nt as another court of that State would g ive.” Parsons Steel, Inc. v. First Ala. Bank , 474 U.S. 518, 523 (1986). Acc ording ly , we look to Michig an’s res judicata law. See Y oung v. Twp. of Gree n Oak, 471 F.3d 674, 680 ( 6th Cir. 2006).

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Elder, et al. v. Harrison, Twp. of, et al. The district court first addre ssed the prec lusive eff ect of the Macomb County Circuit Court’s ruling that res judicata did not bar Ray mond E lder’s tort claims brought in 2009. Under Michig an law, collateral estoppel “re quires that (1) a question of fact essential to the j udg men t was actually litigated and deter

mine d b y a v al i d and final judgme nt, (2) the same parties had a full and fair opportunity to litigate the issue, and (3) there was mutuality of estoppel.” Estes v. Titus , 751 N.W.2d 493, 500 (Mich. 2008). The state court’s res judicata ruling i n i t s o rder denying the defe ndants’ motion for summary dispositi on was not a final deci s i o n . See Mich. Ct. R. 2.604(A); see also Goodrich v. Moore , 155 N.W.2d 247, 249 (Mich. Ct. App. 1967) (holding that an interlocutory order denying summary judgme nt “does not have [r] es judicata eff ect” ). The 2009 tort case did not result in any final judgme nt, as Ray mond Elder’ s claims ag ainst Har rison Townshi p wer e dismiss ed without prejudice and his claims ag ainst Har dcastle- Mehlhose wer e stay ed. Acc ording ly , the d is trict

court proper ly conclude d that the state court’s res judicata ruling was not entitled to prec lusive eff ect. Next, the district court addre ssed whether the Elders’ defa mation case filed in the Macomb County Circuit Court in 2008 prec luded the instant fede ral civil rig hts action. Under Michig an law, the doctrine of res judicata “bar s a second, subsequent action when (1) the prior action was decide d

on the merits, (2) both actions involve the same parties or their privi es , an d (3 ) the matter in the second case was, or could have been, resolved in the first.” A d a i r v. S t a t e , 680 N.W.2d 386, 396 (Mich. 2004). Res judicata “bar s not only claims alre ady litigated, but also ever y claim arising from the same transac tion that the parties, exercising rea sonable diligenc e, could have raised but did not.” Id

. In deter

mining that the instant action was barr ed by res judicata, the district court conclude d that the Elders could and should have raised their constitutional claims befor e the state court

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Elder, et al. v. Harrison, Twp. of, et al. dismiss ed their defa

mation cas e. W e d isag ree . The Elders’ § 1983 claims relating to Ray mond Elder’ s prosec ution d i d n o t accrue until he was acquitted on October 24, 2008. See Hec k v. Humphrey , 512 U.S. 477, 486-87 (1994). The Elders filed their defa mation case on August 6, 2008,

two months befor e Ray

mond Elder’ s acquittal. Relying on Buck v. Thomas M. Cooley Law School , 597 F.3d 812 (6th Cir. 2010), and Dubuc v. Gree n Oak Townshi p , 312 F.3d 736 (6th Cir. 2002), the district court held that the Elders should have supplemented their complaint in the defa mation case when Ray

mond Elder was acquitted to include their malicious prosec ution claim. The Buck and Dubuc case s are distinguishable beca us e t h o s e case s involved fac tual alleg ations that develope d during the pendenc y of the initial suit and wer e manifestations of alre ady -existi ng claims. See Buck, 597 F.3d at 817-18; Dubuc , 312 F.3d at 750 (“When the alleg ed additional m an ifestation of

reta liatory animus occur s befor e adjudication on the m erits of the i nitial suit, howeve r, t h e v ictim is oblige d to amend his or h er i n i t i al compl aint to add these new alleg ations.”). The Elders’ civil rig hts complaint did not alleg e new fac tual alleg ations rela ting to their defa

mation claims, but raised

new cause s of action that acc rued afte r the filing of their defa mation case . See McCoy v. Michigan , 369 F. App’x 646, 651-52 (6th Cir. 2010); Katt v. Dyk house , 983 F.2d 690, 6 9 4 (6 t h Cir. 1992). Be ca u s e the Elders’ constitutional claims, all of which are in some way connec ted to Ra y m o n d Elder’ s prosec ution for assault and battery , wer e not y et ripe when they filed their defa mation case , the district court e rre d in concludingthat those claims wer e bar red by res judicata. Acc ording ly , we REVERSE the district court’s dismiss al of the Elders’ civil rig hts action on the basis of re s judicata a nd REMAND for

further proce eding s consistent with this opi nion.

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