Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 97 of 139
like federal law in using the transaction-or-occurrence test to determine the preclusive effect
of a prior judgment. Under federal law, a final judgment of a federal trial court is preclusive
until that judgment is modified or reversed. “[T]he established rule in the federal courts [is]
that a final judgment retains all of its res judicata consequences pending decision of the
appeal . . . [.]” Pharmacia & Upjohn Co. v. Mylan Pharms., Inc., 170 F.3d 1373, 1381 (Fed.
Cir. 1999) (third alteration and omission in original) (quoting Warwick Corp. v. Md. Dep’t
of Transp., 573 F. Supp. 1011, 1014 (D. Md. 1983), aff’d, 735 F.2d 1359 (4th Cir. 1984)).
The Restatement (Second) of Judgments recognizes this view of finality—that the
pendency of an appeal should not suspend the operation of a judgment for purposes of res
judicata or collateral estoppel—as “[t]he better view.” RESTATEMENT (SECOND) OF
JUDGMENTS § 13, cmt. f (1982); see also 18A CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 4433, at 94 (2d ed. 2002) (“Despite the manifest risks of resting
preclusion on a judgment that is being appealed, the alternative of retrying the common
claims, defenses, or issues is even worse. All of the values served by res judicata are
threatened or destroyed by the burdens of retrial, the potential for inconsistent results, and
the occasionally bizarre problems of achieving repose and finality that may arise.”).
The cases make clear that a pending appeal does not affect the finality of a Louisiana
state trial court’s judgment for res judicata purposes. See Tolis v. Bd. of Supervisors of La.
State Univ., 95-1529 (La. 10/16/95); 660 So. 2d 1206, 1206–07 (per curiam) (“A final
judgment is conclusive between the parties except on direct review. LA. REV. STAT.
13:4231 . . . . Once a final judgment acquires the authority of the thing adjudged, no court
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