Louise Root v. County of Fairfax

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2545
LOUISE ROOT,
Plaintiff – Appellant,
v.
COUNTY OF FAIRFAX,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:12-cv-01148-CMH-IDD)
Submitted: September 30, 2013 Decided: October 10, 2013
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard E. Gardiner, Fairfax, Virginia; Paul A. Prados, DAY &
JOHNS, PLLC, Fairfax, Virginia, for Appellant. Karen L.
Gibbons, OFFICE OF THE COUNTY ATTORNEY, Fairfax, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Louise Root appeals from the district court’s order
dismissing her civil action against the County of Fairfax
(“County”) seeking just compensation under the Fifth Amendment
for the alleged taking of Root’s personal property for public
use. The district court granted the County’s motion to dismiss
based on res judicata and the statute of limitations. Finding
no error in the dismissal, we affirm.
In December 2004, the County seized several of Root’s
companion animals and petitioned for a hearing on their welfare.
After numerous proceedings in the Fairfax County district and
circuit courts, it was determined that Root was entitled to
return of the animals. In 2008, Root filed a complaint in the
Fairfax County Circuit Court against the County and eight
individual defendants by whom her animals had been adopted. In
the 2008 action, Root sought an injunction ordering the return
of the animals to her under Va. Code Ann. § 8.01-620 and alleged
a Fifth Amendment due process violation under the Fourteenth
Amendment pursuant to 42 U.S.C. § 1983 (2006). The County
removed the action to federal district court. The district
court dismissed Root’s § 1983 due process claim against the
County and remanded the claim for injunctive relief to the state
court. Root appealed the district court’s order and the County
filed a cross-appeal of the portion of the order remanding the

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claim for injunctive relief. We affirmed the district court’s
order, concluding that there was no due process violation and
that the court did not abuse its discretion in declining to
exercise supplemental jurisdiction.
After the case was remanded to the circuit court, the
County was dismissed as a party. The circuit court permitted
Root to amend her 2008 complaint to convert it to an action in
detinue against the four remaining individual defendants to whom
five of the dogs had been transferred by the County. In
September 2011, Root’s motion for summary judgment against the
individual defendants was granted. The court determined that
Root was entitled to possession of the animals and ordered a
hearing to determine which of the animals was living and to
direct that any living animals in the possession of the
individual defendants be returned to Root. Only one animal was
living and it was returned to Root.
In October 2012, Root filed a new complaint against
the County in the Eastern District of Virginia. The complaint
alleged that upon the Fairfax County Circuit Court’s
determination that the individual defendants were not lawfully
entitled to possession of Root’s animals, and the animals,
except one, were not returned to her and she did not receive
compensation for their value as personal property, the County
violated the Takings Clause of the Fifth Amendment by taking her

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private property for a public purpose and without just
compensation.
The County filed a Fed. R. Civ. P. 12(b)(6) motion to
dismiss for failure to state a claim based on res judicata and
the statute of limitations. The district court held a hearing
on the motion and ruled from the bench that Root’s 2012
complaint was barred by res judicata and the statute of
limitations. The court dismissed the action and Root timely
appealed.
Root argues that there was no previous judgment on
whether there was a proper taking that entitled her to
compensation; the 2008 Fifth Amendment due process claim does
not involve her Fifth Amendment Takings Clause claim; and the
takings claim did not arise out of the same series of
transactions as the 2008 due process claim, nor did it arise out
of the same core of operative facts. She further asserts that
the takings claim was not ripe until she learned of the animals’
demise.
By “precluding parties from contesting matters that
they have had a full and fair opportunity to litigate,” the
doctrine of res judicata minimizes “the expense and vexation
attending multiple lawsuits, conserve[s] judicial resources, and
foster[s] reliance on judicial action by minimizing the
possibility of inconsistent decisions.” Taylor v. Sturgell, 553

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U.S. 880, 892 (2008) (internal quotations omitted). “However,
res judicata does not bar claims that did not exist at the time
of the prior litigation.” Meekins v. United Transp. Union, 946
F.2d 1054, 1057 (4th Cir. 1991). A party invoking res judicata
must establish three elements: (1) a previous final judgment on
the merits, (2) identical parties in the two actions, and
(3) the claims in the later action are based upon the same cause
of action in the earlier proceeding. In re Varat Enters., Inc.,
81 F.3d 1310, 1315 (4th Cir. 1996).
Root contends that there is no final judgment on the
takings claim, therefore there is no final judgment on the
merits. However, this raises the same issue as the third prong:
whether the new claim arises from a series of transactions or
operative core facts that were the same as those involved in the
earlier proceeding. If the claim is a new claim, then there is
not a judgment on it. Identical claims exist if the two claims
“arise out of the same transaction or series of transactions or
the same core of operative facts.” Pueschel v. United States,
369 F.3d 345, 355 (4th Cir. 2004). While typically it is a new
factual development that gives rise to a fresh cause of action,
see, e.g., Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 328
(1955), changes in law can also have that effect. A second
action based on a newly applicable law may be justified and

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defeat res judicata. See Clodfelter v. Republic of Sudan, 720
F.3d 199, 210-11 (4th Cir. 2013).
However, the bar includes those claims that “existed
at the time of the first suit and ‘might have been offered’ in
the same cause of action . . . .” Aliff v. Joy Mfg. Co., 914
F.2d 39, 43-44 (4th Cir. 1990). “Newly articulated claims based
on the same [transactional] nucleus of facts may still be
subject to a res judicata finding if the claims could have been
brought in the earlier action.” Laurel Sand & Gravel, Inc. v.
Wilson, 519 F.3d 156, 162 (4th Cir. 2008) (internal quotation
marks omitted).
Root’s Takings Clause claim is not based on a newly
applicable law, nor is it a newly cognizable claim. She could
have filed this claim at the time she filed for relief in 2008
under § 1983. The fact that the animals at issue in this action
have died is not an operative fact because the Takings Clause
claim was an available remedy at the time of the 2008 filing.
The fact that the animals have now died is unrelated to the
County’s initial removal or taking of the animals. The taking
was the removal of the animals, not their subsequent death.
We conclude that the core operative facts have not
changed since the denial of the original claim and conclude that
the Takings Clause claim arises from operative facts that are
not separate and distinct from those underlying Root’s initial

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claim in 2008. Therefore, the new claim is not a new cause of
action.
In light of the holding that Root’s Fifth Amendment
claim under the Takings Clause is barred by res judicata, we
need not consider the district court’s additional holding that
the claim is also barred by the statute of limitations. We
therefore affirm the district court’s order dismissing the
action solely on the basis of res judicata. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED

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