Alaa Elkharwily v. Franciscan Health System

In Elkharwily v. Franciscan Health System, No. Case No. C17-5838-RBL {Elkharwily It) Plaintiff pleaded incidents of fraud on the court which occurred after he had raised other and earlier incidents of fraud on the court in post-trial motion in Elkharwily I and after the district court in Elkharwily I had ruled on them. The district court in Elkharwily IIdismissed the second case entirely on res judicata grounds. The dis­ trict court in Elkharwily II did not follow the “bright line” of the Ninth Circuit which forecloses application of res judicata where a subsequent case involves facts and claims not existing and could not possibly have been brought at the time of commencing the earlier adjudication. The Court of Appeals likewise did not follow nor did it address the law argued by Elkharwily regarding the “bright line” rule and affirmed the dis­ trict court judgments. The lower courts, even within the same circuits, have expressed conflicting views on this rule. There is no statement of the law by The Supreme Court precluding lower courts from imposing res judi­ cata dismissals where facts not existing at the time of filing the previous action are alleged in a second action, or in a case such as this, at the time post trial relief was requested in the previous lawsuit. This Court is petitioned to use this case as a vehicle to establish “the bright line” rule in the federal courts and prevent gross miscarriage of justice in my case and others. Thus, the question presented is: Whether federal courts must refuse to dismiss on res judicata grounds a second claim against the same defendant that is based on different facts, evidence, and or claims that did not exist nor could have been pos­ sibly brought at the time of filing a prior claim, thus