Jeffrey D. BROWN, Plaintiff-Appellant, v. John E. POTTER, Postmaster General, United States Postal Service, Defendant-Appellee, 248 F. App'x 712
Opinion
PER CURIAM. The plaintiff, Jeffrey D. Brown, appeals from the district court’s grant of
summary judgment to John E. Potter, Postmaster General, on the basis of claim preclusion. Brown contends that the district court erred in holding that because he could have amended a complaint filed in an earlier, separate action to include the claims presented in this complaint, his current action is barred by res judicata. Specifically, the district court concluded that the current claims ripened before the first action was dismissed and, thus, that claim preclusion bars them from being raised in this subsequent suit. We disagree. In our recent ruling in Rawe v.
Liberty Mutual Fire Insurance Co., 462 F.3d 521 (6th Cir.2006), we reiterated that the doctrine of res judicata does not apply to claims in a subsequent suit that were not ripe at the time the first suit was filed. See id. at 529-30 (citing Katt v. Dykhouse, 983 F.2d 690, 694 (6th Cir.1992)). Indeed, in Rawe we specifically rejected the argument — made by the defendant in this case — that res judicata should bar the second suit because the plaintiff had failed to amend his first complaint to include claims that later became available to him. Id. at 530.
As we also noted in Rawe, the majority rule is that “ ‘an action need include only the portions of the claim due at the time of commencing that action,’ because ‘the opportunity to file a supplemental complaint is not an obligation.’ ” Id. (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4409 (2d ed. 2002)) (additional citations omitted). Here, the parties agree that at least some of the claims brought in Brown’s second suit were not ripe for judicial review at the time his first action was filed.
As a result, we conclude that this action is not barred and that
summary judgment was improperly granted. We therefore REVERSE the judgment of the district court and REMAND the case for further proceedings.
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