Dirck Hecking v. Air Line Pilots Association, International

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 11, 2006*
Decided October 17, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-2464
DIRCK HECKING,
Plaintiff-Appellant,
v.
AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,
Defendant-Appellee.
Appeal from the United
States District Court for the
Southern District of Indi-
ana, Indianapolis Division.
No. 1:05-cv-1111-LJM-WTL
Larry J. McKinney, Chief
Judge.
Order
Dirck Hecking believes that he is entitled to disability benefits under plans spon-
sored by the Air Line Pilots Association (ALPA). In 2003 he filed suit against two
plans (the Air Line Pilots Association Welfare Benefit Plan and the IFALPA Loss of
License Plan) and “Jonathan Cohen, Director of Legal Department, Air Line Pilots
Association.” Cohen was ALPA’s agent for service of process, and Hecking ap-
parently thought that he had to name Cohen as a party. Because he sued Cohen as
an agent for ALPA, however, the real defendant was ALPA itself, which asked the
district court to enter judgment in its favor. Without waiting for judicial resolution
of this motion, Hecking dismissed the suit voluntarily to the extent it sought relief
from Cohen or ALPA. That dismissal, under Fed. R. Civ. P. 41(a)(2), was with
* After an examination of the briefs and the record, we have concluded that oral argument is un-
necessary, and the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a); Cir. R.
34(f).

-- 1 of 2 --

No. 06-2464 Page 2
prejudice. Judgment eventually was entered in favor of the Plans after the judge
concluded that Hecking’s disability preceded the effective date of his coverage.
In 2005 Hecking tried again, this time suing ALPA on what Hecking styles a
breach-of-contract theory. He maintains that ALPA should classify him as a “reacti-
vated” member rather than an “apprentice” member, and that this reclassification
would improve his chances of obtaining disability benefits by advancing the date of
his coverage so that it precedes his disability. ALPA asked the district judge to dis-
miss the suit as barred by claim preclusion (res judicata) in light of the 2003 litiga-
tion. The district court obliged, and Hecking has appealed.
His principal contention is that only Cohen, and not ALPA, was a party to the
2003 suit. That’s wrong. A suit against an agent, as agent, is a suit against the
principal. Hecking had to advance all of his legal theories at once. He could not try
an ERISA theory in 2003, a contract theory in 2005, and some new theory in 2007.
There is only one injury (loss of disability benefits), so all theories of recovery had to
be consolidated in a single action. See Herrmann v. Cencom Cable Associates, Inc.,
999 F.2d 223 (7th Cir. 1993); Brzostowski v. Laidlaw Waste Systems, Inc., 49 F.3d
337, 339 (7th Cir. 1995). As it happens, some contractual theories were advanced in
2003 but then abandoned. So the second suit is thoroughly precluded, see Central
States Pension Fund v. Hunt Truck Lines, Inc., 296 F.3d 624, 628 (7th Cir. 2002),
and the judgment of the district court is
AFFIRMED.

-- 2 of 2 --