Whack Attack! Montana Supreme Court First Ever to Issue Whack-A-Mole Smackdown In Published Majority Opinion

If you've been practicing law for more than a handful of years, you've seen the "whack-a-mole" style of litigation: Try one thing, then another, then another; there exists a path around every tree in Elastic Morality Forest, and the possibilities are endless! The sun does not shine at night (Alaskans exempt), but if a blistering midnight sunburn gets you past summary judgment, draft the affidavit while I grab my stamp.

For those of you that feel cabined by truth and common sense, the time for celebration is here. The Montana Supreme Court has gifted to frustrated jurisprudentials (it's a word, starting now) everywhere the first-ever majority published opinion to mete out a "whack-a-mole" smack-down. Touris v. Flathead County , 2011 MT 165, ¶ 22, 361 Mont. 172, 258 P.3d 1. In Touris, a plaintiff on his third trip to the Supremes argued that res judicata did not bar the continued prosecution of his claims because, under Restatement (Second) of Judgements s 26, he had previously "split" them between separately-filed causes. Sending that Zero to its firey grave, the Supreme Court observed:

¶ 22 [T]his is not a claim-splitting case but, rather, one in which the original complaint was drafted so broadly that the judgment in that action precluded the second action . . . A plaintiff cannot continually seek re-litigation of issues under the guise of 'claim-splitting.' To accept Touris' position would frustrate a purpose of res judicata, protecting defendants from repetitive lawsuits, and instead encourage a veritable whack-a-mole of contemporaneously-filed duplicative lawsuits based upon identical claims.

¶ 23 Affirmed.

That's right -- "a veritable whack-a-mile of contemporaneously-filed duplicative lawsuits based upon identical claims" is the last sentence of the opinion, and the PG-rated version of this blog thinks that's pretty B.A. Others have previously expressed similar frustrations, but no one has ever had the gavels to come out and say what we've always known: the law abhors moles, particularly those who've been whacked once already. See e.g., TR Investors, LLC v. Genger, 2010 WL 2901704, *12 (Del. Ch. 2010) (acknowledging the defendant's game of "whack a mole" and further brilliantly noting that "[i]t is possible, nevertheless, to sift through the heaping stew pot filled with every conceivable exculpatory theory that ever crossed his lawyers' inventive minds that Genger's lawyers have cooked up and identify the chunkier ingredients."); but see Kenko Corp. v. Cincinnati, 917 N.E.2d 888, par. 40 (Ohio App. 2009) (noting in a concurrence that "I thought we had put that foolishness safely to rest in McVey and Hacker. But it seems a whack-a-mole situation -- the argument keeps popping up. Unfortunately, the dissent will just keep encouraging the moles.").

We were amazed and slightly discouraged to learn that a Westlaw search of "whack-a-mole" yields just six measley results -- including Touris -- and believe that the time has finally come to start unleashing whack-a-mole-style beatdowns at appropriate times and places. Don't abuse this new-found and soon-to-be-cherished penumbral right; you can immunize a mole to this sort of extermination technique if you fail to properly dose and deploy. So whack the mole, don't become one.