
    Timothy Joe SPRINKLE, a minor, by and through his next friend, Emmett PHILYAW v. George Hardy EDWARDS, Jr.
    1010199.
    Supreme Court of Alabama.
    Oct. 4, 2002.
    Bryan G Duhé, Mobile, for appellant.
    James W. Porter II of Porter, Porter & Hassinger, P.C., Birmingham, for appellee.
    
      
       Justice Stuart was the circuit judge in Baldwin County to whom this case was assigned during the initial proceedings in this case.
    
   PER CURIAM.

This case arises out of an automobile accident in which Timothy Joe Sprinkle, a minor, was injured. It is undisputed that the accident was caused by George Hardy Edwards, Jr., a deputy sheriff, who was responding to an emergency dispatch and driving at a high rate of speed. The trial court entered a summary judgment for Edwards. Because we find that Sprinkle’s claim is precluded by the doctrine of res judicata, we affirm the trial court’s judgment.

Factual and Procedural Background

Sprinkle was injured when Deputy Sheriff Edwards, responding to an emergency 911 dispatch call, allegedly drove through a dangerous curve at approximately 90 miles per hour without his emergency flashers or siren on, violating § 32-5A-7(c), AIa.Code 1975. Edwards lost control of his vehicle and collided with another vehicle traveling in the opposite direction that was operated by Peggy Davidson Cooley and in which the plaintiff, Timothy Joe Sprinkle, was a passenger. As a result of the collision, Cooley and her unborn child were killed, and Sprinkle was injured.

Sprinkle sued Edwards and others in the Baldwin Circuit Court, alleging negligence, wantonness, and violations of his civil rights under 28 U.S.C. § 1983. The defendants removed the case to federal court. Once in federal court, the defendants filed a motion to dismiss the complaint for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P. (hereinafter referred to as “Federal Rule 12(b)(6)”). The federal district court granted that motion, but did not indicate in its order whether the dismissal was with prejudice, and it permitted Sprinkle to restate his § 1988 claims if he could do so in a viable manner. Within 14 days of that dismissal, Sprinkle filed another complaint in the Baldwin Circuit Court realleging his state-law claims of negligence and wantonness against Edwards in his individual capacity; that complaint included no federal claims. Edwards moved to dismiss the state-law claims, arguing that they were barred by the doctrines of res judicata and/or collateral estoppel. The trial court denied Edwards’s motion. Edwards then filed a motion for a summary judgment, arguing that the action was barred by the doctrines of res judicata and/or collateral estoppel, or, in the alternative, that Edwards was immune from liability under the theory of State-agent immunity. The trial court granted that motion and entered a summary judgment for Edwards, but it did not specify on what ground.

Sprinkle appeals from that summary judgment, raising two issues. First, Sprinkle argues that the doctrines of res judicata and/or collateral estoppel do not bar his state action because, he says, the dismissal by the federal district court pertained only to the federal claims raised before that court, not the state-law claims; he argues that a dismissal based on Federal Rule 12(b)(6) is not a ruling on the merits of his state-law claims and therefore cannot bar a subsequent action. Second, Sprinkle argues that Edwards is not immune from suit on the ground of State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000), or under § 6-5-338, Ala.Code 1975.

Analysis

Sprinkle first argues that the dismissal of his complaint by the federal district court on the Federal Rule 12(b)(6) ground of failure to state a claim does not meet the elements of res judicata. The elements of res judicata are:

“(1) a prior judgment on the merits; (2) rendered by a court of competent jurisdiction; (3) substantially the same parties involved in the prior case are involved in the current case; and (4) the same cause of action [is] presented in both suits.”

Ex parte Jefferson County, 656 So.2d 382, 384-85 (Ala.1995) (citing Smith v. Scott Paper Co., 620 So.2d 976 (Ala.1993)).

Specifically, Sprinkle argues that the federal district court’s dismissal was not a judgment on the merits as to his state-law claims. He argues that the federal district court’s dismissal did not discuss the state-law claims and that, in any event, a Federal Rule 12(b)(6) dismissal becomes final only if it is converted to a Rule 56, Fed. R.Civ.P., motion for a summary judgment. Federal Rule 12(b) states, in pertinent part:

“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”

It is undisputed that the defendants’ motion was not treated as a summary-judgment motion but as a motion to dismiss. Sprinkle argues that Federal Rule 12(b)(6) tests only whether the claims have been adequately stated in the complaint; it does not test the merits of those claims. According to Sprinkle, courts reach the merits of the claims only when they reach the summary-judgment stage of the litigation.

Sprinkle further argues that a dismissal can have res judicata effect only if there is a dismissal and if leave to amend the complaint is denied with prejudice. Citing Carter v. Money Tree Co., 532 F.2d 113, 115 (8th Cir.1976). Sprinkle points out that because the federal district court granted him leave to amend his complaint, the denial was without prejudice.

Edwards counters by arguing that the federal district court granted Sprinkle ■leave only to amend as to the federal claims stated in his complaint, not as to the state-law claims. Thus, he argues, the federal district court’s dismissal of the state-law claims was with prejudice. Additionally, Edwards points to Rule 41(b), Fed.R.Civ.P., which states:

“Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication on the merits.”

Failure to state a claim is not one of the exceptions listed in Federal Rule 41(b); thus, Edwards argues, by implication a dismissal for failure to state a claim “operates as an adjudication on the merits.”

Edwards is correct. The United States Supreme Court has stated that “[t]he dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a ‘judgment on the merits’ ” for res judicata purposes. Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) (citing Angel v. Bullington, 330 U.S. 183, 190, 67 S.Ct. 657, 91 L.Ed. 832 (1947), and Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). Thus, a dismissal for failure to state a claim pursuant to Federal Rule 12(b)(6) is generally preclusive.

However, while this rule settles the point that Sprinkle’s § 1983 claims, if not amended, would be precluded by the doctrine of res judicata, it does not answer the question whether the state-law claims were dismissed with prejudice. The federal district court’s order does not discuss Sprinkle’s state-law claims. This Court could answer such a question only by delving into the mind of the federal district court, an exercise this Court lacks the inclination or the ability to perform.

Federal Rule 41 explicitly states that unless the court has specified otherwise, a dismissal is an adjudication on the merits. The federal district court did not specify otherwise in this case, and we will not presume the opposite conclusion — that the dismissal in this case was not an adjudication on the merits — on the basis of its silence. Therefore, because the federal court’s decision was an adjudication on the merits by a court of competent jurisdiction involving the same parties and the same claims, Sprinkle’s action against Edwards is barred by the res judicata effect of the federal district court’s dismissal of all Sprinkle’s claims. However, because the federal district court neglected to mention Sprinkle’s state-law claims in its dismissal, we note that if Sprinkle was to obtain a clarification from the federal district court under Rule 60, Fed.R.Civ.P., that the dismissal of his state-law claims was without prejudice, Sprinkle would be entitled to relief from our determination, according to Rule 60(b), Ala. R. Civ. P. Our conclusion precludes any discussion of Edwards’s State-agent immunity arguments. The trial court’s summary judgment for Edwards is affirmed. We further hold that Edwards’s motion for sanctions against Sprinkle is denied because Sprinkle’s claims were not frivolous.

AFFIRMED; MOTION FOR SANCTIONS DENIED.

HOUSTON, BROWN, and HARWOOD, JJ., concur.

SEE and LYONS, JJ., concur specially.

WOODALL, J., concurs in the result.

MOORE, C.J., and JOHNSTONE, J., concur in part and dissent in part.

STUART, J., recuses herself.

LYONS, Justice

(concurring specially).

I concur in the opinion of the Court. I write specially to address that aspect of the dissenting opinion of Chief Justice Moore dealing with the Court’s affirmance of the trial court’s dismissal of Sprinkle’s claim based upon the doctrine of res judi-cata.

The Chief Justice relies upon the concurring opinion of Judge Lasker in McLearn v. Cowen & Co., 660 F.2d 845, 851 (2d Cir.1981) (“Where the district court, on the pleadings, dismisses a complaint containing both state and federal claims and fails to indicate whether the state claims are being dismissed on the merits, however, the most useful operative rule is to presume that the court declined to exercise its discretionary pendent jurisdiction over the state law claims.” (emphasis added)).

The problem with embracing such a presumption in this case is that it requires Deputy Edwards, the party who obtained the dismissal, to overcome the presumption. How does he do so? Taking testimony from the United States District Court by affidavit or deposition is not a viable alternative. With respect to this presumption, Judge Meskill stated in his dissenting opinion in McLeam: ‘Whether dismissal of a complaint containing both federal and state claims should, as Judge Lasker argues, be presumed to address only the federal claims on the merits, ‘absent clear indications to the contrary,’ must remain an open question until a litigant properly raises it in an appropriate proceeding.” McLearn, 660 F.2d at 853 (emphasis added). As the main opinion notes, a motion by Sprinkle in federal court pursuant to Rule 60, Fed.R.Civ.P., is the appropriate proceeding.

The dissenting opinion would put this Court in the business of second-guessing the effect of a judgment in federal court that on its face, by the plain language of Rule 41, Fed.R.Civ.P., operates as an adjudication of all claims on the merits. In McLeam, the state court had previously, and quite properly, treated the prior federal dismissal as an adjudication on the merits as mandated by the plain language of Rule 41, Fed.R.Civ.P. See McLearn v. Cowen & Co., 48 N.Y.2d 696, 699, 897 N.E.2d 750, 752, 422 N.Y.S.2d 60, 62 (1979). But, in a subsequent memorandum, the state appellate court gave the plaintiff the opportunity to reopen the state court proceedings if it could get the federal court to clarify its order so that it no longer precluded the state-law claims. MeLearn v. Cowen & Co., 52 N.Y.2d 896, 418 N.E.2d 1325, 437 N.Y.S.2d 306 (1981).

The main opinion properly recognizes that the federal court order is an adjudication on the merits and affirms the trial court’s summary judgment, which was entered on the basis that the state-law claims are barred by the doctrine of res judicata. However, this Court also recognized, just as the state appellate court did in McLean, the availability to Sprinkle of postjudgment relief under Rule 60, Ala. R. Civ. P., if he should subsequently obtain relief from the federal court judgment under Rule 60, Fed.R.Civ.P. While this route might appear circuitous, it properly places the burden on Sprinkle, rather than on Edwards, to clarify the federal district court’s judgment, which on its face is an adjudication on the merits against Sprinkle.

SEE, J., concurs.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in the majority’s decision to deny Deputy Edwards’s motion for sanctions. However, I must respectfully dissent from its decision to affirm the trial court’s dismissal of Sprinkle’s claim on res judicata grounds. The majority interprets Rule 41, Fed.R.Civ.P., to necessarily mean that the district court’s ruling in Sprinkle’s federal action operated as an adjudication on the merits of both Sprinkle’s federal claims and his state-law claims. I agree that it operates as an adjudication on the merits as to the federal claims; I do not, however, agree that it operates as an adjudication on the merits as to Sprinkle’s state-law claims.

The Court’s argument is one based on the federal district court’s silence, because the district court, in its order of dismissal, failed to address Sprinkle’s state-law claims at all. Because of that omission, I believe that the question in this case becomes whether the district court exercised its pendant jurisdiction under 28 U.S.C. § 1367 to hear the state-law claims and thus whether its ruling was a ruling on the merits of those claims as well. In McLearn v. Cowen & Co., 660 F.2d 845 (2d Cir.1981), Judge Morris Lasker, in his concurring opinion, commented on the situation we have in this case:

“It is certainly the preferred practice in cases involving pendent state law claims for the district court to state explicitly whether a dismissal of state law claims is on the merits or whether it is declining to exercise its pendent jurisdiction. Where the district court, on the pleadings, dismisses a complaint containing both state and federal claims and fails to indicate whether the state claims are being dismissed on the merits ... the most useful operative rule is to presume that the court declined to exercise its discretionary jurisdiction over the state law claims.”

660 F.2d at 851.

In this case, the federal district court failed even to mention whether it was dismissing Sprinkle’s state-law claims against Edwards in his individual capacity. Accordingly, I am of the opinion that the proper presumption should be that the district court never exercised its discretionary pendent jurisdiction over those claims. This conclusion is supported by the general federal rules surrounding jurisdiction over supplemental state-law claims. “The general rule is that when as here the federal claim drops out before trial ... the federal district court should relinquish jurisdiction over the supplemental claim.” Van Harken v. City of Chicago, 103 F.3d 1346, 1354 (7th Cir.1997).

The federal district court in this case explicitly held that Sprinkle’s complaint that Deputy Edwards violated § 32-5A-7(c), Ala.Code 1975, “cannot be a basis for imposing § 1983 liability,” but the federal district court made no finding as to the viability of Sprinkle’s state-law claims pertaining to the alleged violation of that statute. Consequently, I believe that it is proper to assume that the federal district court never exercised jurisdiction over the state-law claims. Because the district court never exercised jurisdiction over those claims, those claims have not been adjudicated on their merits. Therefore, the doctrine of res judicata cannot apply in this case, and the summary judgment could not have been entered on res judica-ta grounds.

Because I conclude that the doctrine of res judicata does not bar Sprinkle’s claims, the next question is whether some form of immunity prevents Sprinkle from maintaining an action against Deputy Edwards. Three types of immunity could potentially bar an action in this case: (1) absolute immunity, (2) State-agent immunity, and (3) statutory discretionary-function immunity. I conclude that none of these types of immunity protects Deputy Edwards from suit in this case.

Edwards argues that, as a constitutional officer, he possesses absolute immunity under Art. I, § 14, Ala. Const.1901, which provides “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” Section 14 has been construed to provide sovereign immunity to all constitutional officers, including deputy sheriffs. See Ex parte Purvis, 689 So.2d 794, 795-96 (Ala.1996). This Court has explicitly held, however, that sheriffs are not immune from liability in actions brought:

“(1) to compel [a sheriff] to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute.”

Parker v. Amerson, 519 So.2d 442, 443 (Ala.1987).

Sprinkle’s action does not fall under any of the above exceptions, and Sprinkle does not even attempt to argue that it does. It is clear that Deputy Edwards is immune from suit in his official capacity. However, Sprinkle also sued Edwards in his individual capacity. “Sovereign immunity [through Art. I, § 14] does not extend to protect state officials from personal liability for torts committed in their official capacities.” Turner v. Sayers, 575 So.2d 1135, 1138-39 (Ala.Civ.App.1991), citing DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1981). Thus, absolute immunity does not bar Sprinkle’s claims.

Deputy Edwards may, however, be immune from liability based on State-agent immunity or statutory discretionary-function immunity. In Ex parte Cranman, 792 So.2d 392 (Ala.2000), this Court restated the law of State-agent immunity, stating, in part:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s ... exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons .... ”

792 So.2d at 405 (second emphasis added). Section 6-5-338(a) is the basis for statutory discretionary-function immunity. It gives a police officer “immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the fine and scope of his or her law enforcement duties.” (Emphasis added.) Thus, whether this incident is analyzed under Cranman or the statutory immunity provided by § 6-5-338(a), the question is whether Deputy Edwards was engaged in a function involving the exercise of his judgment in the performance of his duties.

Sprinkle sued Deputy Edwards, alleging that Deputy Edwards had been negligent when responding to an emergency by driving at an excessive speed and failing to engage his lights and siren, a violation of § 32-5A-7(c). Section 32-5A-7 permits drivers of authorized emergency vehicles to take certain privileges with regard to the rules of the road when answering an emergency call or when pursuing a suspect. Section 32-5A-7(b)(3) specifically allows the driver of such a vehicle to “[exceed the maximum speed limits so long as he does not endanger life or property....” Section 32-5A-7(c), however, restricts that permission by stipulating that “[t]he exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of Section 32-5-13 and visual requirements of any laws of this state requiring visual signals on emergency vehicles.”

Deputy Edwards was answering an emergency 911 “hang-up” call when he exceeded the speed limit and crashed into the vehicle Sprinkle was in. There can be no doubt that Deputy Edwards was engaged in the performance of his law-enforcement duties at the time of the accident. Discretionary acts require “constant decision-making and judgment.” Phillips v. Thomas, 555 So.2d 81, 85 (Ala.1989). Deputy Edwards’s decision to answer the emergency 911 dispatch call as well as his decision to drive at an excessive rate of speed both required him to exercise personal judgment. In White v. Birchfield, 582 So.2d 1085 (Ala.1991), a police officer who answered an emergency 911 distress call was driving at an excessive rate of speed with a suspect in the backseat of the car. The car became airborne as a result of the speed and the suspect’s head was knocked against the roof of the car, injuring the suspect. This Court concluded that the officer was entitled to immunity, reasoning that “[the officer’s] decision to answer the call in a life-threatening situation was within the boundaries of his discretion in performing his duties as a deputy sheriff.” 582 So.2d at 1087.

However, in this case Deputy Edwards also violated an express statute regarding the use of lights and sirens in an emergency situation. The statute does not give Deputy Edwards discretion with respect to using his siren and lights when answering an emergency call at an excessive rate of speed. Section 32-5A-7 permits authorized emergency vehicles to “exercise the privileges set forth in this section, but subject to the conditions herein stated.” One of those conditions is using visual and audible signals, i.e., emergency lights and sirens. The statute says that the exemptions provided in that section “shall apply only” when the emergency vehicle uses emergency lights and sirens. (Emphasis added.) Where a deputy’s discretion to exercise personal judgment has been revoked by statute, he cannot be said to have discretionary immunity for his action.

The case of Williams v. Crook, 741 So.2d 1074 (Ala.1999), is directly on point. In that case, a Bay Minette police officer answered a domestic-disturbance dispatch call and was traveling in excess of the speed limit toward the scene of the disturbance. Along the way, he crashed into another vehicle, injuring the vehicle’s occupants. The officer was not using his emergency lights or sirens; he testified that he feared doing so would alert those at the scene of the domestic disturbance of his arrival and might result in participants’ running away. This Court ruled that the police officer was not entitled to discretionary-function immunity from claims asserted by the victims. The Court stated, in part:

“Thus, under the express provision of the statute, we must conclude that Crook [the police officer] did not have the discretion to exceed the speed limit unless he also complied with the provisions of § 82-5A-7(c), and he admittedly did not do that. Thus, the accident that gave rise to the plaintiffs’ claims is not alleged to have been the result simply of actions as to which Crook was called upon to exercise his personal judgment. Although he did have the discretion to decide whether he would drive in excess of the speed limit, once he made that decision he did not have the discretion to further decide whether he would comply with the audible- and visual-signal requirements of § 32-5A-7(c).”

Williams, 741 So.2d at 1077. While Williams specifically discussed immunity under only § 6-5-338(a), the analysis applies equally to a Cranman analysis on these facts, because that “statute, by its terms, extends state-agent immunity to peace officers performing discretionary functions within the line and scope of their law-enforcement duties.” Moore v. Crocker, [Ms. 1992321, April 12, 2002] — So.2d -, - (Ala.2002).

Therefore, because Sprinkle s action was not barred by the doctrine of res judicata and because Deputy Edwards did not possess absolute, State-agent, or discretionary-function immunity for his actions, he can be sued in his individual capacity for the injuries sustained by Sprinkle. The summary judgment should be reversed. Therefore, I must dissent from the majority opinion insofar as it affirms the summary judgment.

JOHNSTONE, J., concurs. 
      
      . In so holding, we note that we did not consider Sprinkle’s response to Edwards’s motion.
     