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Moffat v. Branch5/18/2005
[ ] [but t]here are consequences for the failure to take advantage of this opportunity." Moffat I, 2002-NMCA-067, 26 (citation omitted). Thus, "a litigant is ordinarily not entitled to more than one fair bite at the apple[,]" Ford, 119 N.M. at 407, 891 P.2d at 548, and some writers liken the doctrine to a "common-law rule of compulsory joinder" that requires a plaintiff to raise any and all legal theories in a single lawsuit. Robert C. Casad & Kevin M. Clermont, Res Judicata: A Handbook on Its Theory, Doctrine, and Practice 61 (2001).
Four elements must be met for claim preclusion to bar a claim. The two actions (1) must involve the same parties or their privies, (2) who are acting in the same capacity or character, (3) regarding the same subject matter, and (4) must involve the same claim. See Myers, 100 N.M. at 747, 676 P.2d at 824. Moffat contends that his state court action involves neither the same parties nor the same claim as the federal action. Because the prior action was in federal court, federal law determines the preclusive effect of a federal judgment. Ford, 119 N.M. at 409, 891 P.2d at 550 (holding that a federal court claim triggers claim preclusion in state court and that federal law then determines the preclusive effect); see also Wolford v. Lasater, 1999-NMCA-024, 16, 126 N.M. 614, 973 P.2d 866 (holding that a federal court judgment barred state action claims); see also Restatement (Second) of Judgments § 87 (1982) (stating that " ederal law determines the effects under the rules of res judicata of a judgment of a federal court"). Federal law and New Mexico law are not divergent on claim preclusion doctrine, and both find the Restatement (Second) of Judgments (1982) [hereinafter Restatement], persuasive. Ford, 119 N.M. at 413, 891 P.2d at 554. Because of this lack of divergence, we rely more extensively on New Mexico law for convenience in this opinion.
Before addressing the specific elements of claim preclusion, we must first determine whether Moffat could have raised his contract-related theories in the federal action, because claim preclusion generally will not bar a second action when the litigant could not have raised certain theories or sought certain relief in the first proceeding due to a lack of personal or subject matter jurisdiction. See Bank of Santa Fe v. Marcy Plaza Assocs., 2002-NMCA-014, 14, 131 N.M. 537, 40 P.3d 442 (stating that claim preclusion applies only when plaintiff has had a "full and fair" opportunity to litigate issues in prior action and that limitations on subject matter jurisdiction in the first action may prevent such an opportunity); Chavez v. City of Albuquerque, 1998-NMCA-004, 12-13, 124 N.M. 479, 952 P.2d 474 (holding that a ruling by a city personnel board did not trigger claim preclusion because it had no jurisdiction to consider all of plaintiff's claims); Ford,119 N.M. at 410, 891 P.2d at 551 (stating that "a plaintiff should be permitted to litigate in the second action a ground that the plaintiff did not have an opportunity to assert in the first litigation"); see also Restatement § 26(1)(c) (describing an exception to the rule precluding claim splitting where a plaintiff was unable to pursue a legal theory or remedy in the prior action due to limits on subject matter jurisdiction or other limits on a court's authority).
Moffat contends that the federal court had only limited jurisdiction to consider his charging lien and would have had no jurisdiction to consider his contract-related claims because there was no diversity of parties. We do not agree. Federal courts have ancillary jurisdiction to entertain such attorney fee disputes in FTCA cases. Harley & Browne v. Ressler & Ressler, 957 F. Supp. 44,
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