LAURIE J. MICHELSON, United States Magistrate Judge.
Plaintiff Get Back Up, Inc. operates a residential substance abuse facility in a historic district of Detroit, Michigan. Under the City's zoning ordinances, Get Back Up has to obtain a conditional use permit to operate that type of facility in that district. Get Back Up initially received the required permit from the City's Building and Safety Engineering Department, but the neighborhood homeowner's association appealed the permit award to the City's Board of Zoning Appeals, and the Board reversed the grant. The Board's decision was upheld by the Michigan courts. Plaintiff then brought this federal lawsuit against Defendants City of Detroit and its Board of Zoning Appeals alleging that the City's zoning ordinance on its face, and the Board of Zoning Appeals' permit decision in this instance, violated federal laws, including the Fair Housing Act, the Americans with Disabilities Act, and the Rehabilitation Act. (Dkt. 1, Compl. ¶¶ 46-54.)
A contractor with Get Back Up, the Michigan Department of Corrections, recently indicated its intention to terminate its agreement with Get Back Up at least in part because Plaintiff lacks a conditional use permit. (Dkt. 10, Pl.'s Mot. for Prelim. Inj., Exs. Q, EE.) Accordingly, Get Back Up has now moved for immediate relief, asking this Court to preliminarily enjoin the City from enforcing its ordinance pending final resolution of this suit. (Pl.'s Mot. for Prelim. Inj. at 5.) Get Back Up's Motion for Preliminary Injunction, by way of referral and waiver of the right to object by the parties, is presently before the Court for disposition. (Dkts. 11, 13.) The Court set an expedited briefing schedule and heard oral argument on the motion on July 11, 2012. (See Dkt. 12.)
For the reasons set forth below, the Court finds that Get Back Up is not precluded from bringing this suit under the doctrine of res judicata because the state court only adjudicated an administrative appeal on the merits, which, under Michigan Supreme Court authority, is not the type of adjudication that precludes a subsequent civil suit. Further, by a stipulation of the parties entered contemporaneously with this opinion and order, the Court resolves Plaintiff's Motion for Preliminary Injunction as follows: IT IS HEREBY ORDERED that Defendants City of Detroit and the Board of Zoning Appeals shall not, pursuant to Mich. Comp. Laws § 125.3407, seek to shut down Get Back Up's substance abuse facility as a nuisance per se until either further order from this Court or this Court enters final judgment.
The life story of Dr. William L. Taylor, Jr., President and CEO of Plaintiff Get Back Up, Inc., illustrates the organization's aim: Dr. Taylor was an All-American football player at the University of Michigan, battled with alcoholism, and then spent time on the streets of Detroit and in prison before recovering from his addiction, earning a doctorate, and founding Get Back Up, Inc. (Pl.'s Mot. for Prelim. Inj. at 6, ¶ 7.) Get Back Up is a non-profit that operates a 160-bed residential substance abuse treatment facility in Detroit, Michigan. (Id. at 6, ¶ 1.) Plaintiff
Get Back Up's treatment facility is a secured, remodeled school building located in a "B4" zoning district in Detroit, Michigan. (Id. ¶¶ 4-6, 13, 49, 58.) The Detroit Zoning Ordinance ("Ordinance") provides that certain uses in a B4 district are permitted "by-right." (Pl.'s Mot. Prelim. Inj., Ex. E, at ECF Pg ID 475-76 (Ordinance, Article IX, §§ 61-9-75, 61-9-76).) These include, for example, a nursing home, a nonprofit neighborhood center, and a medical clinic. (Id.) The Ordinance, however, classifies other uses, such as "substance abuse service facilities," as "conditional uses." (Id., Ex. E at ECF Pg ID 477 (Ordinance, Article IX, § 61-9-80(6)).) Thus, for Get Back Up to operate its substance abuse facility, the Ordinance requires Get Back Up to obtain a conditional use permit, which, in turn, involves a review by the City's Building and Safety Engineering Department ("B & SE") and a public hearing. (Id., Ex. E at ECF Pg ID 467-68, (Ordinance, Article III, §§ 61-3-213, 214).) Further, the Ordinance prohibits the B & SE and Detroit's Board of Zoning Appeals from approving a conditional use unless fifteen criteria are satisfied. (Id., Ex. E at ECF Pg ID 470-71, (Ordinance, Article III, § 61-3-231).) As examples, the conditional use must "not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes permitted" and the use must "not substantially diminish or impair property values within the neighborhood." (Id., Ex. E at ECF Pg ID 470-71, (Ordinance, Article III, § 61-3-231).)
Get Back Up applied for a conditional use permit and a public hearing was held on November 7, 2007. (Id. at 9, ¶¶ 18-19.) The City's Planning and Development Department initially recommended that the B & SE deny Get Back Up's application; but, on December 21, 2007, the B & SE responded to the Planning and Development Department's concerns and conditionally approved the application. (Id. at 9, ¶¶ 20-21, Ex. F.) The Planning and Development Department then approved Get Back Up's site plan and use on January 9, 2008. (Id. at 9, ¶¶ 22.)
On January 18, 2008, a homeowners' association for the neighborhood where the facility is located, the Russell Woods Sullivan Area Association (the "Association"), appealed the B & SE's decision to Detroit's Board of Zoning Appeals ("BZA"). (Id. at 11, ¶ 32.) On February 19, 2008 the BZA held a hearing and, according to Get Back Up, the Association proffered "myths and stereotypes regarding recovering substance abusers." (Id. at 11, ¶¶ 33, 39.) On February 27, 2008, the BZA reversed the B & SE's decision. (Id. at 11, ¶ 40, Ex. L.)
On or around March 21, 2008, Get Back Up appealed the BZA's decision to Wayne County Circuit Court (Case No. 08-107348-AA). (Dkt. 16, Joint Supp., Ex. 10.)
On August 15, 2008, the day set for oral argument on Get Back Up's appeal, Get Back Up and the BZA entered into a consent judgment ("Consent Judgment"). (Pl.'s Mot. for Prelim. Inj., Ex. M (Consent Judgment).) The Consent Judgment acknowledged that Count I of the Plaintiffs/Appellants' Complaint was an appeal from the BZA's February 27, 2008 decision. (Id., Ex. M. at ECF Pg ID 748 (Consent Judgment at 1).) The Consent Judgment further provided,
(Id., Ex. M. at ECF Pg ID 749 (Consent Judgment at 2).) Under the Consent Judgment, Get Back Up and the BZA "agreed to resolve the appeal (Count I) on the terms and conditions set forth herein and ... agreed to dismiss Count II without prejudice." (Id.) The referenced "terms and conditions" reinstated (with certain modifications) the B & SE's conditional approval order. (Id., Ex. M. at ECF Pg ID 750 (Consent Judgment at 3).) The Consent Judgment further provided that the "matter is not remanded" and, "This Order and Judgment resolves the last pending claim and closes this case." (Id.)
On October 24, 2008, the Wayne County Circuit Court, apparently in response to a motion to intervene and a motion to set-aside the Consent Judgment filed by the Association, consolidated Get Back Up's appeal with a separate suit filed by the Association and remanded the case back to the BZA. (Pl.'s Mot. for Prelim. Inj., Ex. O at ECF Pg ID 761; see also id., Ex. P at ECF Pg ID 764.)
On December 1, 2008, the Wayne County Circuit Court denied motions for reconsideration filed by the BZA and Get Back Up. The BZA and Get Back Up both maintained that "[t]he case had been settled via a consent judgment between Get Back [Up] and the City; letting the Association [in] upsets the consent judgment." (Id., Ex. P at ECF Pg ID 764 (Order on Mots. for Reconsideration at 2).) Get Back Up and the BZA also argued that the Wayne County Circuit Court had "contradicted [itself]" by both upholding the Consent Judgment and remanding to the BZA and that the Association lacked standing. (Id.) The state circuit court found that "[a] consent judgment — even one a court affirms — doesn't rule out intervention." (Id., Ex. P at ECF Pg ID 766 (Order on Mots. for Reconsideration at 4).) The court further stated,
(Id., Ex. P at ECF Pg ID 767 (Order on Mots. for Reconsideration at 5).)
In April 2009, Get Back Up opened its residential substance abuse treatment facility. (Id. at 12, ¶ 48.) By December 2009, the facility housed 29 residents and it presently has 40 residents. (Id.)
On April 20, 2009, the Wayne County Circuit Court granted the Association's "Motion to Add the Russell Woods Sullivan Area Association as an Indispensible Party and Set Aside Consent Judgment." (Id., Ex. U at ECF Pg ID 800, (Order Setting Aside Consent J. at 2).) More specifically, the state court (1) added the Association "as a party appellee to this appeal," (2) set aside the Consent Judgment, (3) directed the Association to respond to the claims in Get Back Up's complaint, and (4) remanded the case to the BZA with the instruction that "the Association shall participate in all proceedings on remand before the City of Detroit, Board of Zoning Appeals." (Id.) The court also gave Get Back Up leave to amend its Complaint. (Id.)
On May 5, 2009, Get Back Up filed "Appellants/Plaintiffs' First Amended Claim of Appeal and First Amended Complaint." (Dkt. 16, Joint Supp., Ex. 11 (State Ct. Am. Compl.).) Count I was titled "Claim of Appeal" but also argued that the BZA's decision was in violation of federal laws, including, the Americans with Disabilities Act, the Rehabilitation Act, and the Fair Housing Act. (Id., Ex. 11 (State Ct. Am. Compl. ¶ 36).) Counts II and III sought declaratory and injunctive relief, and Count IV sought damages from the BZA and the Association for violations of federal law. (Id., Ex. 11 (State Ct. Am. Compl. ¶¶ 51-52).)
On December 8, 2009, the BZA held another hearing and voted to again reverse the B & SE's grant of the conditional use permit. (Pl.'s Mot. Prelim. Inj., Ex. D (2d Hearing Tr.).) The BZA issued its written opinion on March 10, 2010. (Id., Ex. V (2d BZA Decision).)
It is unclear whether Get Back Up appealed this second decision to the Wayne County Circuit Court or simply notified that court that the BZA had made its determination. In any event, on April 22, 2010, the Wayne County Circuit Court issued an appellate briefing schedule and the parties submitted appeal briefs. (Wayne County Circuit Court Docket at 10.)
On June 16, 2010, the Wayne County Circuit Court issued an "Opinion and Order Upholding the Zoning Board." (Pl.'s Mot. Prelim. Inj., Ex. Z (Op. Upholding BZA).) The state court first held that there was substantial evidence to support the BZA's decision:
(Id., Ex. Z at ECF Pg ID 828-29 (Op. Upholding BZA at 6-7).) Although a bit unclear, the state court next held that the Ordinance was not unconstitutionally vague or overbroad under the First Amendment. (Id., Ex. Z at ECF Pg ID 829-31 (Op. Upholding BZA at 7-9).) The court then rejected Get Back Up's class-of-one Equal Protection Clause and substantive due process claims. (Id., Ex. Z at ECF Pg ID 831-32 (Op. Upholding BZA at 9-10).) Finally, the court addressed Get Back Up's claims under the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the Federal Fair Housing Act. (Id., Ex. Z at ECF Pg ID 833-37 (Op. Upholding BZA at 11-15).) The Wayne County Circuit Court reasoned in part:
(Id., Ex. Z at ECF Pg ID 835-37 (Op. Upholding BZA at 13-15).)
On July 6, 2010, Get Back Up filed a claim of appeal in the Michigan Court of Appeals (Mich. Ct.App. Case No. 299190).
(Dkt. 1, Compl., Ex. K.) On August 3, 2010, Get Back Up moved for reconsideration:
(Joint Supp., Ex. 15 (Get Back Up's Mot. for Reconsideration in Mich. Ct.App. at 1-2).) Get Back Up also attempted to comply with the Michigan Court of Appeals July 29, 2010 order: on August 4, 2010 it filed a delayed application for leave to appeal which was assigned a separate appellate case number (Mich. Ct.App. Case No. 299422).
On April 25, 2011, the Michigan Supreme Court denied leave to appeal the Michigan Court of Appeal's June 29, 2010 jurisdiction decision and denied leave to
On September 8, 2011, Get Back Up filed this suit. (Dkt. 1.)
Federal Courts have a duty to police their own jurisdiction. The Rooker-Feldman doctrine, which gets its name from a pair of Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), prohibits a federal district court from exercising subject-matter jurisdiction where the plaintiff lost in state court and then complains of an injury caused by the state-court judgment and seeks review of that judgment. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291-92, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). As the prior state-court proceedings arguably implicate the doctrine, the Court addresses whether Rooker-Feldman applies in this case.
In Exxon Mobil, the Supreme Court clarified that the scope the Rooker-Feldman doctrine is narrow and not coextensive with claim preclusion:
Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517. Following Exxon, the Sixth Circuit has emphasized that district courts are to focus on the source of the injury:
McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir.2006); see also Commodities Exp. Co. v. City of Detroit, No. 09-CV-11060-DT, 2010 WL 2633042, at *9 (E.D.Mich. June 29, 2010) ("The Sixth Circuit has interpreted Exxon's `limitation to mean that the Rooker-Feldman doctrine applies only when a plaintiff complains of injury from the state-court judgment itself.'" (quoting Carter v. Burns, 524 F.3d 796, 798 (6th Cir.2008))).
In this case, the Rooker-Feldman doctrine is inapplicable. Get Back Up does not claim that any state-court judgment is the source of the injury it seeks this Court to remedy. Rather, Get Back Up alleges that the City of Detroit and its Board of Zoning Appeals — not a judgment of the Wayne County Circuit Court, the Michigan Court of Appeals, or the Michigan Supreme Court — are the source of its injury. In particular, in Count I of its Complaint, Get Back Up asserts that the City's ordinances violate federal law. (Compl. ¶ 52.) Thus, the source injury of the injury is the City, its ordinance, or the
The City and the BZA's only challenge to Get Back Up's request for preliminary relief is that this suit is barred by the doctrine of res judicata. While this argument appears, at first blush, to be sound, a careful examination of the procedural history, coupled with binding precedent, dictates a different result.
Under the Full Faith and Credit Act, 28 U.S.C. § 1738, "a federal court must give the same preclusive effect to a state-court judgment as another court of that State would give." Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 523, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986); accord Kremer v. Chemical Construction Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) ("Section 1738 requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged."). Thus, this Court looks to Michigan's claim-preclusion law.
"[The Michigan Supreme] Court has taken a broad approach to the doctrine of res judicata, holding that it bars not only claims already litigated, but also every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not." Adair v. State, 470 Mich. 105, 680 N.W.2d 386, 396 (2004). More fully, the doctrine bars a subsequent action when "(1) the first action was decided on the merits, (2) the matter contested in the second action was or could have been resolved in the first, and (3) both actions involve the same parties or their privies." Sewell v. Clean Cut Mgt., Inc., 463 Mich. 569, 621 N.W.2d 222, 225 (2001).
In this case, there are potentially two preclusive prior actions because Michigan permits zoning board decisions to be challenged on two litigation tracks. First, "[a]ny party aggrieved by a decision of the zoning board of appeals may appeal to the circuit court for the county in which the property is located." Mich. Comp. Laws § 125.3606(1). If a party invokes § 125.3606, then
Mich. Comp. Laws § 125.3606(1). Second, a party aggrieved by a decision of the zoning board of appeals may simply file a civil suit against the board. See Whitmore Lake 23/LLC v. Ann Arbor Charter Twp., No. 294696, 2011 WL 1600507, at *1-2 (Mich.Ct.App. Apr. 28, 2011).
The parties do not dispute that Get Back Up's administrative appeal was fully adjudicated on the merits. Further, the administrative appeal involved Get Back Up and the BZA: two parties to this suit. Nonetheless, the Court finds that the administrative appeal is not preclusive because, under Michigan Supreme Court authority, claims arising under federal law are not properly raised or adjudicated in the context of an administrative appeal. See Houdini Properties, LLC v. City of Romulus, 480 Mich. 1022, 743 N.W.2d 198, 198-99 (2008).
In Houdini, the plaintiff owned a lot near the Detroit Metropolitan Airport and sought a zoning variance to erect a billboard. Id. at 199 (Corrigan, J. dissenting).
2006 WL 1626643, at *3 (Mich.Ct.App. June 13, 2006) rev'd 480 Mich. 1022, 743 N.W.2d 198 (2008).
The Michigan Supreme Court, however, disagreed. Over a dissent that argued that Mich. Comp. Laws § 125.585(11) did not "mean that the [Wayne County Circuit Court] [was] precluded from reviewing the constitutional ramifications of the ZBA decision or other claims involving the same facts, such as a constitutional challenge to the zoning ordinance," 743 N.W.2d at 202 (Corrigan, J. dissenting), the Michigan Supreme Court held:
Houdini, 743 N.W.2d at 198-99. Implicit in the Michigan Supreme Court's decision was that it was of no import that the takings issue was actually adjudicated in the zoning board appeal. See id. at 202 (Corrigan, J. dissenting).
Houdini thus makes clear that the prior state-court adjudication of Get Back Up's administrative appeal does not preclude this suit. This is so even if, in deciding that appeal, the state court resolved the very federal-law claims now before this Court. This is because any federal-law claims raised in Get Back Up's administrative appeal were beyond the scope of the administrative appeal. See Houdini, 743 N.W.2d at 198-99; Mich. Comp. Laws § 125.3606(1).
Given the foregoing, the preclusion question reduces down to whether, in addition to an administrative appeal, Get Back Up filed a civil suit, and, if so, whether that suit was adjudicated on the merits. Regarding the first question, it appears that Get Back Up filed a contemporaneous civil action. On April 20, 2009, the state court added the Association as a "party appellee to this appeal," set aside the Consent Judgment between Get Back Up and the BZA, and, most important for present purposes, gave Get Back Up leave to file an amended complaint. (Pl.'s Mot. Prelim. Inj., Ex. U at ECF Pg ID 800, (Order Setting Aside Consent J. at 2).) Get Back Up's "First Amended Claim of Appeal and First Amended Complaint" not only had a count titled "Claim of Appeal" but also included a count for declaratory relief as to the constitutionality of sections 61-3-231 and 61-3-232 of the Ordinance and a count for damages for violations of federal law, including, the federal statutes Get Back Up relies upon in this suit. (Joint Supp., Ex. 11 (State Court Am. Compl. at 5 & ¶¶ 34, 44, 52).) Moreover, the Wayne County Circuit Court docket reflects other indicia of a civil suit. In February 2010, after the state court had remanded to the BZA for a second hearing but before the BZA's second decision was before the circuit court on appeal, the Association moved to enjoin operation of Get Back Up's facility in the state-court action. (Wayne County Circuit Court Docket at 10.) Also in February 2010, the Wayne County Circuit Court denied Get Back Up's motion to reopen discovery. (Id.)
But even assuming Get Back Up filed a civil suit, that does not mean that suit is now preclusive: the question is whether Get Back Up's civil action was ever adjudicated on the merits. As a starting point, the Wayne County Circuit Court docket suggests that there was no such adjudication. After the BZA issued its second decision in March 2010, the Wayne County Circuit Court set an appellate briefing schedule. (Wayne County Circuit Court Docket at 10.) Get Back Up, the BZA, and the Association then filed appellate briefs. (Id.) Both Get Back Up and the City provided that the circuit court's jurisdiction was based on Mich. Comp. Laws § 125.3606, which, as noted, permits a party aggrieved by a zoning board of appeals' decision to file an administrative appeal in state circuit court. (Joint Supp., Ex. 13 (Get Back Up's Appeal Brief at 1); Joint Supp., Ex. 14 (BZA's Appeal Brief at 1).) The Wayne County Circuit Court then issued its June 16, 2010 opinion which is titled "Opinion and Order Upholding the Zoning Board." (Pl.'s Mot. for Prelim. Inj., Ex. Z (emphasis added).) The opinion does not explicitly dismiss Counts II through V of Get Back Up's amended complaint. The opinion concludes, "we uphold the decision of the Zoning Board." (Id.,
Even more instructive, however, is the action of the Michigan Court of Appeals. When Get Back Up filed a claim of appeal as of right in the Michigan Court of Appeals, that court dismissed for lack of jurisdiction concluding that "the order of the circuit court on appeal from another tribunal is not appealable as a matter of right. [Mich. Ct. Rule] 7.203(A)(1)(a); [Mich. Ct. Rule] 7.216(A)(10)." (Dkt. 1, Compl., Ex. K (1st Mich.Ct.App.Order).) Get Back Up then moved for reconsideration arguing that there was more than a mere administrative appeal before the Wayne County Circuit Court:
(Joint Supp., Ex. 15 at ECF Pg ID 1243-44 (Get Back Up's Mot. for Reconsideration in Mich. Ct.App. at 1-2) (emphases added)). But, even in view of these arguments, the Michigan Court of Appeals denied Get Back Up's motion for reconsideration. Therefore, implicit in the Michigan Court of Appeals' dismissal of Get Back Up's claim of appeal is its conclusion that the Wayne County Circuit Court had simply adjudicated an administrative appeal.
This conclusion is underscored by the BZA's arguments to the Michigan Supreme Court:
(Joint Supp., Ex. 19 at ECF Pg ID 1645, 1648 (BZA's Br. in Opp. Get Back Up's App. for Leave to Appeal to Mich. S.Ct. at 10, 13).)
In sum, assuming that Get Back Up filed a separate civil suit in the Wayne County Circuit Court, that court's docket indicates that no dispositive motions were ever filed in that suit. Nor did the suit proceed to trial. Instead, soon after the Wayne County Circuit Court issued its June 2010 opinion addressing Get Back Up's administrative appeal, Get Back Up appealed that appellate decision to the Michigan Court of Appeals. The Court of Appeals dismissed, thereby finding that the circuit court's June 2010 order was simply a decision on Get Back Up's administrative appeal. The Wayne County Circuit Court docket does not reflect any material activity in the circuit court following the Michigan Court of Appeals' decision. Accordingly, this Court finds that even if Get Back Up filed both an administrative appeal and a civil suit in the Wayne County Circuit Court, that court did not adjudicate the claims of that suit on the merits such that Get Back Up's state-court suit is preclusive of this action.
Because the state court's adjudication of Get Back Up's administrative appeal of the BZA's decision is not preclusive, Houdini, 743 N.W.2d at 198-99; Mich. Comp. Laws § 125.3606(1), and because, assuming Get Back Up also filed a civil suit, that litigation track did not terminate with an adjudication on the merits, the entirety of the prior state-court litigation does not preclude this suit.
The Court does not reach the merits of Get Back Up's Motion for Preliminary Injunction.
By stipulation of the parties entered contemporaneously with this opinion and order (Dkt. 17), IT IS HEREBY ORDERED that Defendants City of Detroit and the Board of Zoning Appeals shall not, pursuant to Mich. Comp. Laws § 125.3407, seek to shut down Get Back Up's substance abuse facility as a nuisance per se until either further order from this Court or this Court enters final judgment.
Mich. Comp. Laws § 125.585(11) (1997). For purposes of this case, the provisions are substantively identical. See 743 N.W.2d at 200 n. 2 (Corrigan, J. dissenting) ("Effective July 1, 2006, MCL 125.585 was repealed by the new Michigan Zoning Enabling Act, 2006 PA 110, MCL 125.3101 et seq. The section equivalent to MCL 125.585(11) is now codified as MCL 125.3606(1), which is substantively identical.").
(Joint Supp., Ex. 24 at ECF Pg ID 1934 (Association's State Ct. Compl. ¶ 19).)
The Court does not believe that the dismissal of the Association's companion case as moot is claim preclusive of this suit. The City has provided no argument in support of that theory. Although the Court has found no Michigan case law squarely on point, other courts have found that a dismissal of a case as moot is not an adjudication on the merits. Fieger v. Corrigan, 602 F.3d 775, 777-78 (6th Cir.2010) ("We agree that [district court's] dismissal [of this suit] was appropriate, though we do not endorse the district court's application of the formal res judicata doctrine. This is not a res judicata case. At the time the district court issued its decision in this case, the 2004 case was on appeal and therefore not final. Furthermore, on appeal, Fieger IV [Fieger v. Gromek, 373 Fed.Appx. 567 (6th Cir.2010)] was decided on mootness grounds, so the 2004 case did not result in a final judgment on the merits to which we could now give preclusive effect."); Farkas v. New York State Dept. of Civil Serv., 114 A.D.2d 563, 565, 494 N.Y.S.2d 178, 180 (1985) ("Based upon the principles and case law discussed above, we conclude that the dismissal of the prior proceeding herein as moot was not a final determination on the merits and, therefore, should not be accorded res judicata effect beyond the question decided therein").
