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Defendant's Attorney: David R. Cooper, of Fisher Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause, and
Samuel A. Green and J. Steven Pigg

Description:

Topeka, KS - Plaintiff personal injury wrongful death lawyer sued defendants on federal civil rights violation theories.

Wichita Police Officer Randy Williamson fatally shot Troy Lanning II following a
high-speed car chase and foot pursuit. Herington, Lanning's mother, sued the defendants
in the United States District Court for the District of Kansas. In the complaint, Herington
alleged violations of Lanning's federal civil rights as well as several state law tort claims.
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The federal district court granted summary judgment in the defendants' favor on
the federal claims. The court declined to exercise supplemental jurisdiction over any of
Herington's state law claims under 28 U.S.C. § 1367(c)(3) (2012) and dismissed them
without prejudice, never reaching the merits of those claims.
Herington refiled the state law claims in Sedgwick County District Court. Relying
on Stanfield and Rhoten, the district court granted summary judgment to the defendants
on all the state law claims, dismissing them as barred by res judicata.
The Court of Appeals affirmed the district court, holding that both courts were
bound by Stanfield and Rhoten. See Herington v. City of Wichita, 59 Kan. App. 2d 91,
92-93, 479 P.3d 482 (2020). In a concurring opinion, Judge G. Gordon Atcheson agreed
that the court was constrained by our prior decisions but challenged them as "eccentric
and exceedingly unfair," "lack[ing] any anchor in the law," and arguably unconstitutional.
59 Kan. App. 2d at 93-94, 105 (Atcheson, J., concurring). He encouraged this court to
reexamine our decision in Stanfield and to realign Kansas' application of res judicata with
conventional preclusion principles. 59 Kan. App. 2d at 94 (Atcheson, J., concurring).
We granted Herington's petition for review.
ANALYSIS
Herington argues that Stanfield and Rhoten should be overruled. She asserts that
the application of res judicata adopted in Stanfield and endorsed in Rhoten is contrary to
widely accepted claim preclusion principles, violates the Supremacy Clause of the United
States Constitution, and implicates her constitutional right to due process. The National
Employment Lawyers Association (NELA) filed an amicus brief on behalf of Herington,
asking this court to overrule Stanfield and Rhoten.
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The defendants, for their part, contend that Stanfield and Rhoten correctly applied
federal preclusion law and that the district court properly relied on those decisions to bar
Herington's state law claims. The Kansas Association of Defense Counsel (KADC) filed
an amicus brief on behalf of the defendants, arguing that Stanfield and Rhoten should be
followed and not overruled.
Whether the doctrine of res judicata applies in a certain case is an issue of law
over which appellate courts exercise unlimited review. Cain v. Jacox, 302 Kan. 431, 434,
354 P.3d 1196 (2015). Before deciding whether res judicata applies to preclude
Herington's state law claims in this case, however, we first must decide whether state or
federal law applies to determine the preclusive effect of the federal court's decision on
those state law claims.
Choice of law
Before our 1997 decision in Stanfield, this court relied on Kansas common-law res
judicata principles to hold that a federal court's dismissal of a state law supplemental
claim would not have a preclusive effect. See Jackson Trak Group, Inc. v. Mid States
Port Authority, 242 Kan. 683, 691, 751 P.2d 122 (1988) ("[A] judgment is not res
judicata as to any matters which a court expressly refused to determine, and which it
reserved for future consideration, or which it directed to be litigated in another forum or
in another action.").
In Stanfield, however, this court redefined the application of res judicata in
Kansas. There, the plaintiff filed an action in federal court for trademark infringement
violations under the federal Lanham Act and included one state law claim alleging
"slander, disparagement, and misappropriation of the plaintiff's personal name." 263 Kan.
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at 391-92. The federal court granted the defendant's motion for summary judgment on the
merits of the federal claims. The court declined to exercise supplemental jurisdiction over
the plaintiff's state law claim. When the plaintiff refiled his state tort claim in the Osborne
County District Court, the court held it was barred by res judicata.
On appeal, the plaintiff pointed out the differences between his federal and state
law claims and argued that claim preclusion should not apply to bar his state law claim
because the federal court never resolved it. At the beginning of our analysis, we
recognized that "'[s]tate courts are bound to apply federal rules in determining the
preclusive effect of federal-court decisions on issues of federal law.'" 263 Kan. at 396
(quoting Heck v. Humphrey, 512 U.S. 477, 488 n.9, 114 S. Ct. 2364, 129 L. Ed. 2d 383
[1994]). Departing from our previous holding in Jackson Trak that applied Kansas
common law res judicata principles, we applied federal—not state—res judicata law to
resolve the identical issue. In doing so, we turned to the Tenth Circuit Court of Appeals'
"transactional approach" test to define whether a claim is barred by res judicata. We held
that, under federal law, transactions arising out of the same factual situation constitute
one claim "regardless of the number of substantive legal theories that may be available to
the plaintiff based on those facts." Stanfield, 263 Kan. at 401 (citing comments to the
Restatement [Second] of Judgments §§ 24-25 [1980]). Although acknowledging the
plaintiff's state law tort claim presented a different legal theory than the federal trademark
claim, we applied the federal transactional approach and concluded the state law tort
claim still arose out of the same transaction and therefore was barred under the federal
rules of res judicata. 263 Kan. at 402.
Finally, we considered whether an exception to this rule was warranted in cases
like the one before us, where a federal court declines to exercise supplemental
jurisdiction over the plaintiff's state law legal theories and never rules on their merits. 263
Kan. at 402-03. Citing with approval to the analysis in Mattson v. City of Costa Mesa,
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106 Cal. App. 3d 441, 164 Cal. Rptr. 913 (1980), we declined to create an exception:
"The fact that the federal court did not consider the plaintiff's state law theories does not
prevent claim preclusion from applying to the theories, since the theories arose out of the
same claim or factual transaction which the federal court did determine." 263 Kan. at
403-04. In so holding, we did not reference any contrary authority or otherwise purport to
overrule Jackson Trak.
More often than not, Kansas courts thereafter cited Stanfield generally without
acknowledging its specific application of res judicata. See, e.g., In re City of Wichita, 277
Kan. 487, 506, 86 P.3d 513 (2004) (citing Stanfield for a standard of review); Fowler v.
State, 37 Kan. App. 2d 477, 479-80, 154 P.3d 550 (2007) (same). But a handful of cases
did rely on Stanfield to bar state law claims based on prior federal litigation. See, e.g.,
Rhoten v. Dickson, 40 Kan. App. 2d 433, 441-44, 192 P.3d 679 (2008) (plaintiff's state
law claim barred by res judicata because it arose out of same transaction as prior federal
lawsuit); O'Keefe v. Merrill Lynch & Co., 32 Kan. App. 2d 474, 480-82, 84 P.3d 613
(2004) (plaintiffs' state law claim barred by res judicata because same claim had been
litigated in prior federal arbitration proceeding); Braxton v. Henderson, No. 100,276,
2009 WL 77988, at *3 (Kan. App. 2009) (unpublished opinion) ("We can find no way to
distinguish Stanfield and are bound to follow it.").
In 2010, this court accepted review in Rhoten, in part, to consider whether
Stanfield should be overruled. Rhoten, 290 Kan. at 105. The plaintiff in Rhoten was
injured following a car accident caused by police pursuit. The plaintiff filed an action in
federal district court alleging federal civil rights violations against the City of Topeka and
the police officer who initiated the pursuit. She also alleged state law negligence claims
against the officer, the City, and the driver of the other vehicle involved in the accident.
The federal court ruled against the plaintiff on the merits of her federal claims and then
declined to exercise supplemental jurisdiction over the remaining state law claims,
9
dismissing them without prejudice. The plaintiff later pursued her state law claims in
state court. Citing Stanfield, the district court held that the plaintiff's claims were barred
by res judicata, and the Court of Appeals affirmed. 290 Kan. at 97-99.
On review, this court summarized the Stanfield court's analysis and agreed with its
application of federal—not state—res judicata principles under the facts presented.
Applying the federal transactional approach adopted by Stanfield, we found in Rhoten
that the federal court order constituted a final judgment on the merits and that the
plaintiff's federal claims comprised the same series of transactions as her state law
negligence claims, which in turn meant that the state law claims had been fully and fairly
litigated. 290 Kan. at 106-11. We recognized in Rhoten that application of res judicata
deprived the plaintiff of any chance to have her negligence claims considered on their
merits and agreed that this result was "counterintuitive." 290 Kan. at 111-12. Yet we
declined to adopt an exception for state claims dismissed without prejudice in federal
court, citing Stanfield's "continuing strength" and compliance with federal law. 290 Kan.
at 112.
As indicated above, we interpreted and applied federal—not Kansas—res judicata
principles in both Stanfield and Rhoten to determine whether the doctrine of claim
preclusion barred the plaintiffs from litigating in state court the state law claims over
which the federal court declined to exercise supplemental jurisdiction. Based on the
discussion below, this procedural distinction is significant in considering Herington's
request to overrule these cases.
We begin by noting that the issue presented here is identical to the issue presented
in Stanfield and Rhoten: whether the doctrine of claim preclusion barred the plaintiffs
from litigating in state court the state law claims over which the federal court declined to
exercise supplemental jurisdiction. As we did in Stanfield and Rhoten when presented
10
with this issue, we begin our analysis with a discussion about what law governs our
decision. On this choice of law question, we find instructive the United States Supreme
Court decision in Semtek Int'l v. Lockheed Martin Corp., 531 U.S. 497, 121 S. Ct. 1021,
149 L. Ed. 2d 32 (2001).
In Semtek, the Court was presented with the question of whether state or federal
law governs the claim-preclusive effect given to federal court judgments when the federal
court exercises diversity jurisdiction. The Court began its analysis by reiterating the
longstanding rule that the preclusive effect of a federal court judgment is always
determined by federal common law, which, in turn, is ultimately pronounced by the
United States Supreme Court. 531 U.S. at 507-08. But the Court went on to explain that,
under federal common law, different claim preclusion rules apply depending on whether
jurisdiction attached because of a federal question or because of the parties' diversity of
citizenship. In federal-question jurisdiction cases, where the goal of the federal common
law is to develop a uniform rule of preclusion, the Court reiterated that federal law
applies in conducting a claim preclusion analysis. See 531 U.S. at 504-05, 507; see also
Taylor v. Sturgell, 553 U.S. 880, 891, 128 S. Ct. 2161, 171 L. Ed. 2d 155 (2008) ("For
judgments in federal-question cases . . . federal courts participate in developing 'uniform
federal rule[s]' of res judicata." [citing Semtek, 531 U.S. at 508]).
But the Semtek Court held, as a matter of first impression, that federal courts
sitting in diversity—that is, when no federal question is present—must apply the
preclusion law of the state in which the federal court sits unless the state law is
"incompatible with federal interests." 531 U.S. at 508-09. The Court explained the better
rule is for federal courts to apply state preclusion law in diversity cases because "there is
no need for a uniform federal rule" in a state-law cause of action. 531 U.S. at 508.
Indeed, the Court noted that an alternative federal common law rule would "produce the
sort of 'forum shopping . . . and . . . inequitable administration of the laws' that Erie [R.
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Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)] seeks to avoid . . .
since filing in, or removing to, federal court would be encouraged by the divergent effects
that the litigants would anticipate from likely grounds of dismissal." 531 U.S. at 508-09
(quoting Hanna v. Plumer, 380 U.S. 460, 468, 85 S. Ct. 1136, 14 L. Ed. 2d 8 [1965]). See
also 18B Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4469
(2d ed. 2021).
In both Stanfield and Rhoten, this court recognized that "'[s]tate courts are bound
to apply federal rules in determining the preclusive effect of federal-court decisions on
issues of federal law.'" (Emphasis added.) Stanfield, 263 Kan. at 396 (quoting Heck, 512
U.S. at 488 n.9); Rhoten, 290 Kan. at 106 (also quoting Heck). However, in ultimately
concluding that we were bound to apply federal rules to determine the preclusive effect of
a federal court decision based on supplemental jurisdiction over the state law claims, we
failed to notice the limitation set forth in italics above: that the rule announced in Heck
applied only to federal question cases. In doing so, we announced an all-encompassing
rule—without a corresponding analysis—that federal res judicata rules apply to all
federal judgments, including not just federal question proceedings but those decided
under diversity and supplemental jurisdiction as well.
Of course, the United States Supreme Court in Semtek—decided after Stanfield but
before Rhoten—held that federal courts sitting in diversity must apply the preclusion law
of the state in which the federal court sits unless the state law is "incompatible with
federal interests." 531 U.S. at 508-09. Our all-encompassing rule announced in Stanfield
and followed in Rhoten goes beyond, and perhaps is contrary to, the holding in Semtek.
The United States Supreme Court has never addressed the issue presented here:
what law governs the claim-preclusive effect of a federal court disposition of a state law
claim rendered in a case in which the federal court exercised supplemental jurisdiction
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over the state law claim. But we predict the high Court would find the justifications cited
in Semtek for applying state law claim preclusion rules to a federal court exercising
diversity jurisdiction over a state law claim to be equally persuasive in cases where
federal courts exercise supplemental jurisdiction over state law claims.
The most obvious justification is the well-entrenched rule that, unlike federalquestion jurisdiction cases, a federal court must apply state law to state law claims in both
diversity and supplemental jurisdiction cases. And we see no reason why applying
Kansas preclusion law would be incompatible with federal interests. More specifically,
and in the context of the facts before us today, applying state preclusion law to a state law
claim when a federal court declines to exercise jurisdiction over and/or dismisses it
without prejudice and without considering its merits would not undermine "federal courts'
interest in the integrity of their own processes." See Semtek, 531 U.S. at 509 (providing,
as an example, that a state's failure to estop "willful violation[s] of discovery orders . . .
might justify a contrary federal rule"). To the contrary, applying Kansas preclusion law
furthers the "federalism principle of Erie" by ensuring there are not "'"substantial"
variations [in outcomes] between state and federal litigation' which would '[l]ikely . . .
influence the choice of a forum.'" 531 U.S. at 504 (quoting Hanna, 380 U.S. at 467-68).
Based on the analysis above, we hold that when a federal court declines to
exercise jurisdiction over and/or dismisses a state law claim over which it has
supplemental jurisdiction and does so without considering the claim's merits, state
preclusion law applies. To the extent the decisions in Stanfield and Rhoten are
inconsistent with our holding today, we overrule those decisions.
Notably, "[w]e do not overrule precedent lightly and must give full consideration
to the doctrine of stare decisis." State v. Sherman, 305 Kan. 88, 107, 378 P.3d 1060
(2016). We recognize that "'[t]he application of stare decisis ensures stability and
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continuity—demonstrating a continuing legitimacy of judicial review. Judicial adherence
to constitutional precedent ensures that all branches of government, including the judicial
branch, are bound by law.'" Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573
(2004) (quoting Samsel v. Wheeler Transp. Servs., Inc., 246 Kan. 336, 356, 789 P.2d 541
[1990], overruled on other grounds by Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176
[1991]); see McCullough v. Wilson, 308 Kan. 1025, 1036, 426 P.3d 494 (2018) ("[S]tare
decisis effects even-handed, predictable, and consistent application of the law.") (citing
Johnson v. United States, 576 U.S. 591, 606, 135 S. Ct. 2551, 192 L. Ed. 2d 569 [2015]).
That said, stare decisis "is not a rigid inevitability but a prudent governor on the
pace of legal change." State v. Jordan, 303 Kan. 1017, 1021, 370 P.3d 417 (2016). While
this court is not inexorably bound by its own precedent, we generally will follow the law
of earlier cases unless clearly convinced that the rule "'was originally erroneous or is no
longer sound because of changing conditions and that more good than harm will come by
departing from precedent.'" Sherman, 305 Kan. at 108 (quoting Simmons v. Porter, 298
Kan. 299, 304, 312 P.3d 345 [2013]). In this case, we are clearly convinced that we erred
in Stanfield and Rhoten. Based on our analysis above, which is grounded in the United
States Supreme Court's analysis in Semtek, we correct our previous error and now hold
that Kansas preclusion law applies under these facts.
Overview of Kansas res judicata law
Although the terms res judicata and claim preclusion often are used
interchangeably, res judicata encompasses two distinct doctrines. The first doctrine is
issue preclusion, also known as collateral estoppel, and it precludes a party from
relitigating an issue actually decided in a prior case and necessary to the judgment. The
second is claim preclusion, sometimes called res judicata, which prevents parties from
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relitigating the same claim or cause of action even if certain issues were not litigated in
the prior action. In re Tax Appeal of Fleet, 293 Kan. 768, 777, 272 P.3d 583 (2012).
Under Kansas law, claim preclusion consists of four elements: (1) same cause of
action or claim, (2) same parties, (3) claims in the current case were or could have been
raised in the prior action, and (4) final judgment on the merits of the prior action. 293
Kan. at 777-78 (citing Winston v. State Dept. of SRS, 274 Kan. 396, 413, 49 P.3d 1274
[2002]). Claim preclusion acts as "a bar to a second action upon the same claim, demand
or cause of action." In re Estate of Reed, 236 Kan. 514, 519, 693 P.2d 1156 (1985). The
doctrine of claim preclusion is founded on the principle that the party, or some other
person or entity with whom the party is in privity, has litigated, or had an opportunity to
litigate, the same matter in a former action in a court of competent jurisdiction. 236 Kan.
at 519 (citing Penachio v. Walker, 207 Kan. 54, 57, 483 P.2d 1119 [1971]). Res judicata
applies "not only as to every question actually presented, considered and decided, but
also to every question which might have been presented and decided." 236 Kan. at 519
(citing Hutchinson Nat'l Bank & Trust Co. v. English, 209 Kan. 127, 130, 495 P.2d 1011
[1972]). It "prevents the splitting of a single cause of action or claim into two or more
suits [and] it requires that all the grounds or theories upon which a cause of action or
claim is founded be asserted in one action or they will be barred in any subsequent
action." 236 Kan. at 519 (citing Parsons Mobile Products, Inc. v. Remmert, 216 Kan.
138, 140, 531 P.2d 435 [1975]).
We have described the rationale behind the doctrine as "one of public policy. It is
to the interest of the state that there be an end to litigation and an end to the hardship on a
party being vexed more than once for the same cause." 236 Kan. at 519 (citing Wells v.
Ross, 204 Kan. 676, 678, 465 P.2d 966 [1970]). Nevertheless, we have emphasized that
courts applying res judicata principles must employ a flexible, common-sense
construction that recognizes the reality of a given situation in order to sustain its primary
15
goals, which are rooted in the requirements of justice and sound public policy. 236 Kan.
at 519 ("This rule is one of public policy . . . . The doctrine of res judicata is, therefore, to
be given a liberal application but not applied so rigidly as to defeat the ends of justice.");
Wells, 204 Kan. at 678 (the doctrine must "be given a liberal application but not applied
so rigidly as to defeat the ends of justice"); Swigart v. Knox, 165 Kan. 410, 423, 196 P.2d
246 (1948) (Cowan, J., dissenting) ("The application of the doctrine of res judicata is not
inflexible. It is a rule of convenience and necessity but, like all such rules, is not to be
applied so rigidly as to defeat the ends of justice.").
Our most recent pronouncement on this issue reiterates the importance of giving
the doctrine a flexible, common-sense construction:
"When applying the rule, Kansas courts must be mindful of the equitable
principles animating the doctrine. Thus, courts must consider the substance of both the
first and subsequent action and not merely their procedural form. See Comm'rs of Wilson
Co. [v. McIntosh], 30 Kan. [234,] 238, 1 P. 572 [(1883)] ('We think there is a growing
disposition to enlarge the scope of the doctrine of res judicata, and to place more regard on
the substance of the decision than on the form of the proceedings.'). The doctrine may be
liberally applied, but it requires a flexible and common-sense construction in order to
vindicate its fundamental goals which are embedded in the requirements of justice and
sound public policy. [Citations omitted.] This framework neither favors nor disfavors the
application of the rule in any particular case. It merely requires that before the doctrine is
either invoked or rejected, a court must conduct a case-by-case analysis that moves
beyond a rigid and technical application to consider the fundamental purposes of the rule
in light of the real substance of the case at hand." Cain, 302 Kan. at 434-35.
See also Bogguess v. State, 306 Kan. 574, 580, 395 P.3d 447 (2017) (citing above Cain
analysis in determining whether court should apply res judicata to preclude consideration
of merits of subsequent claim); Steckline Communications, Inc. v. Journal Broadcast
Group of KS, Inc., 305 Kan. 761, 770, 388 P.3d 84 (2017) (citing Cain to hold that courts
16
should be cognizant of policies animating res judicata doctrine and abstain from applying
it in formulaic manner).
Our holding in Jackson Trak is consistent with these principles. In that case, the
plaintiff filed an action in Phillips County District Court for possession of the defendant's
equipment. Before receiving judicial approval, the plaintiff seized the defendant's
equipment. The defendant then filed an application for mandatory injunction and replevin
of property but specifically reserved the right to determine the issue of defective work in
an arbitration proceeding. Although the district court found the plaintiff followed the
contractual procedure when seizing the property, it declined to determine any issues that
were subject to arbitration under the contracts. The defendant then initiated a request for
arbitration. After the arbitrators were selected, the plaintiff objected to the arbitrators'
power to award damages for "conversion" of the defendant's equipment because the
district court already had decided that issue. The arbitrators overruled the objection and
found for the defendant on all issues and awarded damages.
The defendant later sought confirmation of the arbitration award in the Sedgwick
County District Court. The plaintiff objected to the defendant's motion and moved to
vacate the award, but the district court affirmed the arbitration award. The plaintiff
appealed the confirmation order, claiming the arbitrators lacked jurisdiction to award
damages for the seizure of the equipment based on res judicata. We ultimately affirmed
the Sedgwick County District Court's decision, finding that res judicata did not apply:
"We note, however, that the doctrine of res judicata is held not to apply to issues
raised in the previous case which were not decided by the court or jury. Hence, the
doctrine of res judicata does not preclude relitigation of an issue raised by the pleadings
in the prior action, but not considered either by stipulation of the parties or otherwise.
More importantly, a judgment is not res judicata as to any matters which a court
expressly refused to determine, and which it reserved for future consideration, or which it
17
directed to be litigated in another forum or in another action." (Emphases added.) 242
Kan. at 691.
In Stanfield and Rhoten, however, we abandoned—without any discussion of—the
res judicata principles set out in Jackson Trak. For the first time, we used the federal
transactional approach, adopted by the Tenth Circuit as set forth in the Restatement
(Second) of Judgments §§ 24 and 25, to determine a claim preclusion issue. Stanfield,
263 Kan. at 401 (recognizing the Tenth Circuit has adopted the transactional approach);
Rhoten, 290 Kan. at 109-10 (same). A review of our analysis in both Stanfield and Rhoten
suggests that we used the Tenth Circuit's transactional approach because we believed the
footnote in the United States Supreme Court's opinion in Heck required us to use it.
Stanfield, 263 Kan. at 396 (quoting Heck, 512 U.S. at 488 n.9 ["[s]tate courts are bound
to apply federal rules in determining the preclusive effect of federal-court decisions on
issues of federal law"]); Rhoten, 290 Kan. at 106 (same). But as explained above, we
failed to notice the limitation set forth in italics: that the rule announced in Heck applied
only to federal-question cases. As also explained above, we now rely on the postStanfield analysis in Semtek to conclude that, like preclusion issues presented in diversity
jurisdiction cases, federal common law requires us to apply our own state law when a
federal court has declined to exercise supplemental jurisdiction over a state law claim.
Although it is not clear whether it played a part in the decision to apply the
transactional approach adopted by the Tenth Circuit, we summarily stated in both
Stanfield and Rhoten that state res judicata principles do not differ significantly from the
federal transaction approach. Stanfield, 263 Kan. at 396 (quoting Restatement [Second]
of Judgments § 87, Comment a, p. 315 ["(T)here (is) little difference in the doctrine of
res judicata as expounded in state and federal courts . . . so that it is usually a moot
question whether the effect of a federal judgment is determined by federal law or state
law."]); Rhoten, 290 Kan. at 106 (same). Beyond summarily referencing the Restatement
18
(Second) of Judgments § 87, we provided no support in either Stanfield or Rhoten for the
proposition that state law and federal law on res judicata are essentially the same.
But they are not essentially the same. Kansas courts apply a flexible and commonsense construction of res judicata that considers not just the procedural posture but the
substance of both the first and subsequent action. In Jackson Trak, we explained the
nuanced application of res judicata required when some claims for relief have been
dismissed for lack of jurisdiction and others have been decided on the merits. 242 Kan. at
690-91. Unlike Kansas common law, the federal transactional approach "focuses on the
facts underlying the separate legal theories, and a 'claim arising from the same
"transaction or series of connected transactions" as a previous suit, which concluded in a
valid and final judgment, will be precluded.'" Rhoten, 290 Kan. at 109-110 (citing Hatch
v. Boulder Town Council, 471 F.3d 1142 [10th Cir. 2006] [quoting Restatement (Second)
of Judgments § 24]). Federal courts examine whether the facts are related in time, space,
origin, or motivation and whether they would form a convenient trial unit. See also
Stanfield, 263 Kan. at 401 (citing Clark v. Haas Group, Inc., 953 F.2d 1235, 1236-37
[10th Cir. 1992]; Lowell Staats Min. Co. v. Philadelphia Elec. Co., 878 F.2d 1271, 1274
[10th Cir. 1989] ["We have adopted the transactional approach of the Restatement
(Second) of Judgments . . . to determine what is a single 'cause of action.'"]).
Simply put, the formulaic and rigid transactional approach adopted by the Tenth
Circuit from the Restatement conflicts with well-established Kansas principles of res
judicata that have developed in our common law and specifically conflict with
application of those principles in Jackson Trak, where we explained the nuanced
application of res judicata required when some claims for relief have been dismissed for
lack of jurisdiction and others have been decided on the merits. 242 Kan. at 690-91.
Given this conflict, we disapprove of any language in our prior caselaw stating that
Kansas and federal res judicata law are indistinguishable.
19
Application of Kansas res judicata law
We have determined Kansas claim preclusion law applies. We have reviewed the
development of the doctrine in our caselaw, which requires us to employ a flexible,
common-sense construction grounded in justice and public policy. We now apply Kansas
law to the facts presented here. See Cain, 302 Kan. at 434 (stating elements of claim
preclusion as [1] same cause of action or claim; [2] same parties; [3] claims in the current
case were or could have been raised in the prior action; and [4] final judgment on the
merits of the prior action).
In Kansas, the claim or cause of action is defined in terms of the factual
circumstances of the controversy rather than the legal theory or remedial statute on which
the suit is grounded. See Wells, 204 Kan. at 678-79; see also Schmeck v. City of Shawnee,
231 Kan. 588, 590, 647 P.2d 1263 (1982) ("'"cause of action" is the concurrence of the
facts giving rise to an enforceable claim'"); Burnison v. Fry, 199 Kan. 277, 281, 428 P.2d
809 (1967) (same); Peterson v. Bachar, 193 Kan. 161, 167, 392 P.2d 853 (1964) (same);
Shirk v. Shirk, 186 Kan. 32, 36, 348 P.2d 840 (1960) (same); Foster v. Humburg, 180
Kan. 64, 67, 299 P.2d 46 (1956) (same).
Using this definition, we first must decide whether Herington's current lawsuit in
state court alleging state law tort claims arises out of the same factual circumstances as
the federal lawsuit alleging civil rights violations. We find that they do. Both claims
allege Williamson engaged in wrongful conduct when he fatally shot Lanning after a
high-speed car chase and foot pursuit. As to the second and third elements of claim
preclusion, we also find that both lawsuits involve the same parties and that the state law
tort claims in the current case were raised in the federal court case. But the fourth
element—a final judgment on the merits—has not been met here.
20
The federal court could have exercised supplemental jurisdiction over Herington's
state law claims because they were filed in conjunction with Herington's federal question
claims. Supplemental jurisdiction promotes judicial efficiency and fairness to the parties
by allowing related federal and state claims to be resolved in a single action. United Mine
Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218
(1966). But the decision to exercise supplemental jurisdiction rests in the federal court's
discretion. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed. 2d
1097 (2006) (when a federal court dismisses federal claims, it "generally retains
discretion to exercise supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, over
pendent state-law claims"); Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349, 108
S. Ct. 614, 98 L. Ed. 2d 720 (1988) (recognizing "a distinction between the power of a
federal court to hear state-law claims and the discretionary exercise of that power").
When deciding whether to exercise supplemental jurisdiction, a federal court considers
"the values of judicial economy, convenience, fairness, and comity." 484 U.S. at 349; see
Wittner v. Banner Health, 720 F.3d 770, 781 (10th Cir. 2013) ("[W]e have said the court
should consider retaining state claims when, 'given the nature and extent of pretrial
proceedings, judicial economy, convenience, and fairness would be served by retaining
jurisdiction.'").
A federal court may decline to exercise supplemental jurisdiction in certain
instances, including when the court has dismissed all the claims that initially supplied
federal jurisdiction. See 28 U.S.C. § 1367(c)(3). Under these circumstances, federal
courts are often cautious about exercising federal jurisdiction over claims grounded in
state law. Cohill, 484 U.S. at 350 n.7 ("[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over the
remaining state-law claims."); Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir.
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2011) ("'When all federal claims have been dismissed, the court may, and usually should,
decline to exercise jurisdiction over any remaining state claims.'") (quoting Smith v. City
of Enid, 149 F.3d 1151, 1156 [10th Cir. 1998]). Thus, federal courts may choose to
dismiss without prejudice any remaining state law claims, leaving them to be refiled in
state court. See United Mine Workers, 383 U.S. at 726-27 ("[I]f the federal claims are
dismissed before trial . . . the state claims should be dismissed as well. Similarly, if it
appears that the state issues substantially predominate, . . . the state claims may be
dismissed without prejudice and left for resolution to state tribunals."); Gold v. Local 7
United Food & Commercial Workers Union, 159 F.3d 1307, 1311 (10th Cir. 1998) (when
federal court declines supplemental jurisdiction under 28 U.S.C. § 1367, "[t]he proper
course of conduct . . . is to dismiss the state law claims without prejudice, in order to
permit them to be brought in state court"), overruled on other grounds by Styskal v. Weld
County Comm'rs, 365 F.3d 855 (10th Cir. 2004). A federal court's dismissal of state law
claims will generally not operate to bar a plaintiff from refiling the claims in state court.
See 46 Am. Jur. 2d, Judgments § 527 ("The inclusion of the term 'without prejudice' in a
judgment of dismissal ordinarily indicates the absence of a decision on the merits, leaving
the parties free to litigate the matter in a subsequent action."); 13D Wright, Miller &
Cooper, Federal Practice and Procedure: Jurisdiction § 3567.3 (3d ed. 2021) ("[W]hen a
court declines supplemental jurisdiction in a case filed initially in federal court, it should
dismiss the state-law claims without prejudice . . . . This course permits the plaintiff to
refile in state court."); 18 Federal Practice and Procedure: Jurisdiction § 4412 (3d ed.
2021) ("[N]o penalty should be inflicted if a deliberate effort to combine [all parts of a
single claim or cause of action] has been expressly rejected."); 18A Federal Practice and
Procedure: Jurisdiction § 4436 (3d ed. 2021) ("Discretionary refusal to exercise
supplemental jurisdiction likewise does not preclude a subsequent action on state-law
claims in a state court.").
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Where, as here, a federal court declines to exercise supplemental jurisdiction over
state law claims and dismisses those claims without prejudice, we hold there has been no
final judgment on those state law claims, and the Kansas common law doctrine of res
judicata does not preclude a litigant from bringing those claims in state court. Our
holding is consistent with the federal cases cited in the preceding paragraph, which
recognize the caution utilized by federal courts to exercise federal jurisdiction over state
law claims. And just as important, our holding is consistent with well-established Kansas
common law rules. See Jackson Trak, 242 Kan. at 690-91 (relying on Kansas common
law principles to hold that a judgment is not res judicata as to matters which a court
expressly refused to determine and reserved for future consideration).

Outcome: Accordingly, we reverse the decisions of the Court of Appeals and the district
court and remand the case to the district court with directions to address the merits of Herington's state law claims.

Plaintiff's Experts:

Defendant's Experts:

Comments: