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

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Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 98 of 139 has jurisdiction, in the sense of power and authority, to modify, revise or reverse the judgment, regardless of the magnitude of the error in the final judgment.”). 38 The part of the Louisiana res judicata statute that Rimkus quotes—“a valid and final judgment is conclusive between the same parties, except on appeal or other direct review”—means that a trial court’s final judgment has preclusive effect except in those courts reviewing the judgment on direct appeal or collateral challenge. The May 11, 2009 Louisiana state-court judgment dismissing on summary judgment the claims in Rimkus’s reconventional demand is a final judgment for preclusion purposes. 2. Identity of Parties Rimkus also argues that the parties in the two suits are not the same because U.S. Forensic, a defendant in this suit, was not involved in the Louisiana state-court litigation. The defendants respond that U.S. Forensic is in privity with Bell and Cammarata, who were parties to the Louisiana litigation. The identity of parties requirement is satisfied “whenever the same parties, their successors, or others appear, as long as they share the same quality as parties or there is privity between the parties.” Austin v. Markey, 08-381, p. 5 (La. App. 5 Cir. 11/25/08); 2 So. 3d 438, 440 (quoting Smith v. Parish of Jefferson, 04-860 (La. App. 5 Cir. 12/28/04); 889 So. 2d 1284, 1287); see also Burguieres v. Pollingue, 02-1385, p. 8 n.3 (La. 2/25/03); 843 So. 2d 1049, 1054 n. 3. In general, “‘privity’ is the mutual or successive relationship to the same right of property, or such an identification in interest of one person 38 See also Segal v. Smith, Jones & Fawer, L.L.P., 02-1448, pp. 7–8 (La. App. 4 Cir. 1/29/03); 838 So. 2d 62, 66 (“Although SJF argues that the September 12, 2001 judgment is currently on appeal before the First Circuit, the judgment is final for res judicata purposes unless it is reversed on appeal and was, therefore, final at the time the Civil District Court judgment was rendered.”). 98
Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 99 of 139 with another as to represent the same legal right.” Five N Company, L.L.C. v. Stewart, 2002- 0181, p. 16 (La. App. 1 Cir. 7/2/03); 850 So. 2d 51, 61. Privity exists for res judicata purposes: “(1) where the non-party is the successor in interest to a party’s interest in property; (2) where the non-party controlled the prior litigation; and (3) where the non-party’s interests were adequately represented by a party to the original suit.” Condrey v. Howard, No. 28442-CA, p. 5 (La. App. 2 Cir. 8/21/96); 679 So. 2d 563, 567. The record shows an identity of interest between Bell and Cammarata on the one hand and U.S. Forensic on the other. Bell, Cammarata, and DeHarde, the plaintiffs in the Louisiana litigation, own 75% of U.S. Forensic. The actions of Bell and Cammarata—the defendants in this federal case—in leaving Rimkus, forming U.S. Forensic, and competing with Rimkus are the basis of both the Louisiana litigation and this case. Rimkus seeks to hold U.S. Forensic liable with Bell and Cammarata for these actions. Bell and Cammarata represented U.S. Forensic’s interests in the Louisiana litigation in seeking to have the noncompetition and nonsolicitation covenants declared unenforceable. The identity of parties requirement for preclusion is met. 3. The Relationship of the Claims Rimkus contends that the claims in this suit and the Louisiana suit do not arise out of the same transaction or occurrence because the Louisiana state-court judgment did not involve Rimkus’s federal claims for cyberpiracy and trademark infringement, (Docket Entry No. 321-1 at 8–9), and the Louisiana court could not decide the Texas contract and tort claims Rimkus raised, (Docket Entry No. 324 at 12). Rimkus argues that, notwithstanding 99
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Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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