7)

the rights, duties, and injuries involved in the second
lawsuit reveals that they are materially different from
those in issue in the first.” Appellants' Br. at 28.
For the reasons which will be explained in the
following section, we decline to adopt the appellants'
suggested formulation.

More recently our Court of Appeals has found the articulation of
the claim preclusion concept in the Restatement (Second) of
Judgments to be less satisfactory than an approach that looks to

whether two actions pose the same “central factual issue”--a view

set out in Herrmann v. Cencom Cable Assocs., Inc., 999 F.2d 223,
226 (7 Cir. 1993) (citations omitted) :

Building on earlier statements by this and other
courts, which helpfully if a little vaguely define
“transaction” in terms of "core of operative facts,”
"same operative facts,” or "same nucleus of operative
facts,” we suggest that two claims are one for purposes
of res judicata if they are based on the same, or
nearly the same, factual allegations.

Accord, such cases as Brzostowski v. Laidlaw Waste Sys., Inc., 49

F.3d 337, 339 (7 Cir. 1995).

On that score Native American Arts resists vigorously: It
protests that it also has claims (1) against suppliers other than
Waldron (something that is of course a total irrelevancy either
for claim preclusion purposes or for purposes of the present
motion) and (2) against different retailers who have purchased
various different products from Waldron, which it says entitles
it to split the latter claims out among its multiple lawsuits.
That contention is truly beside the mark, for it cannot be

escaped that the guts--the core--of Native American Arts’

4


It is worth noting parenthetically that this District Court
is periodically criticized by our Court of Appeals, which in some
respects appears to have a different perspective from the one
that underlies the random assignment system that exists here, for
permitting lawsuits that may fairly be labeled as “related” to
remain on the calendars of different District Judges, thus
creating the possibility of inconsistent rulings. But whatever
view might be taken of that aspect of the assignment system, the
concept of claim preclusion--the principle that a party is

entitled to litigate the same claim only once, with any second or

third effort being precluded (that is, barred) --calls for
rejection of what Native American Arts has attempted here.

As might be expected, our Court of Appeals (like other
courts) has addressed this issue on numerous occasions. Ina
decision that affirmed an application by this Court of the claim

preclusion doctrine, Car Carriers, Inc. v. Ford Motor Co., 789

F.2d 589, 593 (7% Cir. 1986) confirmed the relevant standard as
one that looks for “a common core of operative fact”:

The district court found that the federal claims
alleged in the 1983 Complaint arose out of the same
factual context as described in the 1982 Complaint.
Thus, the court dismissed these claims as barred by the
doctrine of res judicata. The appellants do not
disagree with the district court's finding that both
complaints arose out of a common core of operative
fact; rather, they attempt to overturn the district
court's decision by persuading us to adopt an alternate
formulation for determining the application of res
judicata. Under this alternate test, res judicata
would not bar a second lawsuit when "[a]n analysis of


&

grievance against Waldron is that she generates a multiplicity of
products, all of which she misrepresents as being Indian products
that are Indian made. It is frankly nonsense for Native American
Arts to urge (its Mem. 5-6):

The claims alleged against Waldron in the three

complaints are significantly different because they are

based upon different violative products. Under the

IACA [Section 305e], each different product sold is a

different violation. As such, each violation is a

separate and distinct claim for damages.
That premise really proves too much, for if logically extended it
would extrapolate to a reductio ad absurdum that would “justify”
Native American Arts in filing a separate lawsuit for every
individual sale by Waldron to every one of Waldron’s customers.*

In sum, there is no justification for the splintered
approach to litigation that Native American Arts attempts vis-a-

vis Waldron, attempting to compel her to do battle on multiple

fronts on what is truly a single claim. Waldron is entitled to

3 Remember that claim preclusion operates to bar all

matters that could have been, as well as those that actually
were, litigated in a first lawsuit between the same parties.
Where a defendant has engaged in an entire course of conduct with
numerous transactions that could have been sued upon the first
time around, a plaintiff commits litigative suicide by advancing
a much more limited claim. It is no accident that Form 5 of the
Appendix of Forms that follow the Rules and that, as expressly
stated in Rule 84, “are sufficient under the rules and are
intended to indicate the simplicity and brevity of statement
which the rules contemplate” is framed this way:

1. Allegation of jurisdiction.

2. Defendant owes plaintiff dollars for goods
sold and delivered by plaintiff to defendant between
June 1, 1936 and December 1, 1936.

5


*Mieate Onder £4n (06/97)

United States District Court, Northern District of Illinois

Nai f Assigned Jud i Sitting Judge if Oth

vir Magistrate Judge Milton I. Shadur than Asigned Judge

CASE NUMBER 01C 1618 DATE 7/17/2001
CASE Native American Arts, Inc. vs. Bundy-Howard, Inc., ete.
TITLE

[In the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) Oo Answer brief to motion due. . Reply to answer brief due__.

(4) oOo Ruling/Hearing on setfor___—__—at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on ___set for_____at

(6) oO Pretrial conference[held/continued to] [set for/re-set for] on setforsat_

) oO Trial[set for/re-set for]on___at

(8) a [Bench/Jury trial] [Hearing] held/continued to__ at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COPRCP4(n) (CGeneral Rule21 CIFRCP41(a)(1) OO FRCP41(a)(2).

qo) [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons stated in this

memorandum opinion and order, Waldron’s motion is granted and she is dismissed as a defendant in this
action — but without prejudice to Native American Arts’ possible pursuit of its claim against Waldron in
some other proceeding. (9- >)

No notices required, advised in open court.

a)

[For further detail see order attached to the original minute order.]

No notices required.
a number of notices

JUL 4:7 200!

date docketed,

ft

docketing deputy initials

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

PLE F ®ETING

Oi JUL 17 PH 12: 50

Copy to judge/magistrate judge.
718702001

emailed not
courtroom an —

deputy’s
initials

SN SN

Date/time received in

central Clerk’s Office mailing deputy initials



t%

dismissal from this action, which advances the same claim against
her (in the sense taught by the cited authorities) as the pre-
existing actions, and this Court so orders. What Native American
Arts may have to do to protect itself against the possibility of

a substantively damaging claim preclusion consequence remains for

Ce hs DSc. ctu

Milton I. Shadur
Senior United States District Judge

it to determine.

Date: July 17, 2001


to

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NATIVE AMERICAN ARTS, INC.,

DOCKETED

WL 17 2001

Plaintiff,

)
)
)
)
v. ) No. 01 C 1618
)
BUNDY-HOWARD, INC., etc., et al., )

)

)

Defendants.

MEMORANDUM OPINION AND ORDER

Trisha Waldron (“Waldron”), one of the numerous named
defendants (to say nothing of the putative unknown defendants
referred to as “John Doe 1 to 10 Unidentified Suppliers”) in this
action brought by Native American Arts, Inc. (“Native American
Arts”) under 25 U.S.C. §305e (“Section 305e”), has filed a Fed.
R. Civ. P. ("Rule”) 12(b) (6) motion for her dismissal from the
first four counts of Native American Arts’ Amended Complaint.
Native American Arts has now filed its “Plaintiff's Response to
Defendant Trisha Waldron’s Motion To Dismiss.” For the reasons
stated in this memorandum opinion and order, Waldron’s motion is
granted and she is dismissed as a defendant in this action--but
without prejudice to Native American Arts’ possible pursuit of
its claim against Waldron in some other proceeding.

Although Waldron advances and Native American Arts responds
to a number of contentions that relate to the substantive aspects
of Native American Arts’ threshold Section 305e claim, it is

unnecessary to address those contentions to resolve the present

ay)


QO

motion. Instead Native American Arts’ threshold problem stems
from its counsel’s impermissible effort to engage in what, in
jurisdictions that typically still adhere to the old terminology
of “res judicata”? and that still employ the concept of “cause of
action,”? is commonly termed “splitting a cause of action.”

This is the fourth lawsuit that Native American Arts has
brought against Waldron in this District Court, all of them
sharing the common gravamen of Waldron’s claimed violations of
Section 305e by her asserted offer, display and sale ef products
that Native American Arts says are falsely suggested to be Indian
products and Indian made when they are not. In an obvious effort
to blur the reality of such commonality, Native American Arts has
previously voluntarily dismissed its Case No. 01 C 1693, the only
one of the four actions that had named Waldron and no other
defendants. As Native American Arts’ counsel would have it, the
presence of other parties defendant in the remaining three still-
pending lawsuits (including this one) should permit it to burden
Waldron with multiple litigation because the claims in the three

actions are assertedly not identical.

1 Both analysis and discussion of the different concepts
involved are advanced by using the more precise terminology of
“claim preclusion” and “issue preclusion” --see, €.g., Migra v.
Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984).

2 Bor the federal courts that concept has been supplanted
by “claim for relief”--see, e€.g., NAACP v. American Family Mut.
Ins, Co., 978 F.2d 287, 292 (7 Cir. 1992).

2