green
Positive treatment
Quoted verbatim 5×
65.0 score
G Cite
cited 2× by 2 distinct cases ·
…dismissal by the court sua sponte on res judicata grounds . . . is permissible in the interest of judicial economy where both actions were brought before the same court.
at p. 436
✓
cited 2× by 2 distinct cases, 2024–2025 · 2 courts ·
…dismissal by the court sua sponte on res judicata grounds, however, is permissible in the interest of judicial economy where both actions were brought before the same court.
at p. 436
✓
Treatment trajectory · 1980 → 2026 · click a year to view as-of
1980
2003
2026
Top citers, strongest first. 50 distinct citers.
How cited ↗
discussed
Cited as authority (verbatim quote)
Marrero v. Mayor Johnson and the Dallas City Municipality
dismissal by the court sua sponte on res judicata grounds, however, is permissible in the interest of judicial economy where both actions were brought before the same court.
discussed
Cited as authority (verbatim quote)
Welsh v. Lamb County
dismissal by the court sua sponte on res judicata grounds, however, is permissible in the interest of judicial economy where both actions were brought before the same court.
discussed
Cited as authority (verbatim quote)
DEFORTE v. THE BOROUGH OF WORTHINGTON
dismissal by the court sua sponte on res judicata grounds . . . is permissible in the interest of judicial economy where both actions were brought before the same court.
discussed
Cited as authority (verbatim quote)
TOWNSEND v. THE BOROUGH OF WORTHINGTON
dismissal by the court sua sponte on res judicata grounds . . . is permissible in the interest of judicial economy where both actions were brought before the same court.
examined
Cited as authority (verbatim quote)
Taxation With Representation of Washington v. Donald T. Regan, Secretary of the Treasury
(2×)
(e)ven though fed.r.civ.p. 8(c) denominates res judicata as an affirmative defense(,) (d)ismissal by the court sua sponte on res judicata grounds ... is permissible in the interest of judicial economy where both actions were brought before the same court
cited
Cited as authority (rule)
Landrys L L C et al v. Chubb Bermuda Insurance Ltd
Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980).
discussed
Cited as authority (rule)
Stein v. McDonough
Sept. 30, 2007) (citing Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (“Although dismissal of a complaint for lack of jurisdiction does not adjudicate the merit [sic] so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims.”)).
discussed
Cited as authority (rule)
Ellis v. Pinckley
(2×)
also: Cited "see"
The first is relevant here and permits “dismissal by the court sua sponte on res judicata grounds in the interest of judicial economy where both actions were brought before the same court.” Id. (quoting Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980)) (internal punctuation omitted).
discussed
Cited as authority (rule)
Cooksey v. Port Arthur Police Department
The first exception permits “[d]ismissal by the court sua sponte on res judicata grounds ... in the interest of judicial economy where both actions were brought before the same court.” McIntyre, 754 F. App'x at 264 (citing Mowbray v. Cameron Cnty., Tex., 274 F.3d 269, 281 (5th Cir. 2001); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980)).
cited
Cited as authority (rule)
Philippeaux v. United States of America
Id. (quoting Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980).
cited
Cited as authority (rule)
Jesus v. Lamar Company
Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980).
cited
Cited as authority (rule)
R&R Motorsports, LLC v. Textron Specialized Vehicles, Inc.
Keith Co., 754 F. App'x 262 , 264-65 (5th Cir. 2018) (per curiam) (quoting Mowbray v. Cameron Cnty., 274 F.3d 269, 281 (5th Cir. 2001) (quoting Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980)).
cited
Cited as authority (rule)
Asai v. Obstetrics & Gynecology Associates, Inc.
Membership Corp. v. City of Calhoun, 989 F.2d 429, 433 (11th Cir. 1993) (citing Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980)).
discussed
Cited as authority (rule)
Williams v. City of Savannah
Notwithstanding, while not raised by Defendants, Plaintiffs claims against Defendants Savannah and Port Wentworth are barred by res judicata.2 “The doctrine of res judicata, or claim 2 “[D]ismissal by the court sua sponte on res judicata grounds . . . is permissible in the interest of judicial economy where both actions were brought before the same court.” Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980); see Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1…
discussed
Cited as authority (rule)
Brown v. McConnell
The first exception allows “[d]ismissal . . . in the interest of judicial economy where both actions were brought before the same court.” Mowbray v. Cameron Cty., Tex., 274 F.3d 269 , 281–82 (5th Cir.2001 (quoting Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980)); United Home Rentals, Inc. v. Tex. Real Estate Comm’n, 716 F.2d 324, 330 (5th Cir.1983).
discussed
Cited as authority (rule)
Saqr v. Filak
Membership Corp. v. City of Calhoun, Ga., 989 F.2d 429, 433 (10th Cir. 1993) (“Although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merits so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims.” (quoting Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980))).
discussed
Cited as authority (rule)
Harrington v. City of Shiner, Texas
“Although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merit[s] so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims.” Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (per curiam).
discussed
Cited as authority (rule)
(PS) Ortiz v. Markey
See Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759 , 767 n. 11 (9th Cir. 2007) 4 (applying California preclusion law); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (holding 5 that dismissal of a complaint for lack of jurisdiction “adjudicate[s] the court’s jurisdiction, and a 6 second complaint cannot command a second consideration of the same jurisdictional claims.”) 7 (citations omitted); Comer v. Murphy Oil USA, Inc., 718 F.3d 460, 469 (5th Cir. 2013) 8 (“Although a jurisdictional ruling is technically not an adjudication on the merits, it has long been 9 the rule that princ…
discussed
Cited as authority (rule)
Chance Clyce v. Nadine Butler
Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (quoting Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 , 402–03 (1940)); see also Lariscey v. Smith, 66 F.3d 323 , 1995 WL 535008, at *2 (5th Cir. 1995) (finding privity between government defendants who “were either the same persons or agencies or employees of the federal government” sued for their “civil RICO enterprise” depriving a prisoner of his invention and its revenues).
discussed
Cited as authority (rule)
Foster
The second exception holds that ‘where all of the relevant facts are contained in the record before us and all are uncontroverted, we may not ignore their legal effect, nor may we decline to consider the application of controlling rules of law to dispositive facts, simply because neither party has seen fit to invite our attention by technically correct and exact pleadings.’”) (quoting Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) and American Furniture Co. v. International Accommodations Supply, 721 F.2d 478, 482 (5th Cir. Unit A Mar. 1981)), cert. denied, 535 U.S. 1055 (2002); see a…
discussed
Cited as authority (rule)
Bolus v. Carnicella, Esquire
Co. v. U.S. Dep’t of Labor, 891 F.2d 1211, 1212 (6th Cir. 1989) (“[A] district court may invoke the doctrine of res judicata in the interests of, inter alia, the promotion of judicial economy.”) (emphasis added); McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir. 1986); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. Consequently, the Court declines to address the Supremacy Clause and comity questions necessary to resolving the merits of Plaintiffs’ motion.
discussed
Cited as authority (rule)
Skinner v. GPCH-GP, Inc.
There are two exceptions to this rule, Lacroix v. Marshall Cty, 409 F. App’x 794, 798 (5th Cir. 2011), one of which permits a court to dismiss an action sua sponte on res judicata grounds where both actions were brought before the same court, Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980).
discussed
Cited as authority (rule)
The Estate of I.C.D. v. Beaumont ISD
See Herrera v. Wyoming, ___ U.S. ___, 139 S. Ct. 1686 , 1701 n.5 (2019) (citing Arizona v. California, 530 U.S. 392, 412 (2000)); Mowbray v. Cameron Cty., 274 F.3d 269, 281 (5th Cir. 2001), cert. denied, 535 U.S. 1055 (2002); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980).
discussed
Cited as authority (rule)
Diane McIntyre v. Ben E. Keith Company
The first exception permits “[d]ismissal by the court sua sponte on res judicata grounds . . . in the interest of judicial economy where both actions were brought before the same court.” Mowbray, 274 F.3d at 281 (alterations in original) (quoting Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980)).
discussed
Cited as authority (rule)
Integrated Financial Associates, Inc. v. Blanchard (In re Blanchard)
On the Merits A dismissal for lack of subject matter jurisdiction is not “on the merits” of “the underlying substantive question”; however, it is “on the merits” of the “issues necessary for the determination of jurisdiction.” See Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759 , 767 n. 11 (9th Cir.2007) (applying California preclusion law); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (holding that dismissal of a complaint for lack of jurisdiction does not adjudicate the merits of the substance of the asserted claim, but that “it does adjudicate the court’s jurisdict…
discussed
Cited as authority (rule)
Karen Tucker v. Secretary Health and Human Ser
Membership Corp. v. City of Calhoun, 989 F.2d 429, 432-33 (11th Cir.1993) (dismissal of complaint for lack of jurisdiction adjudicates court's jurisdiction, and second complaint cannot command second consideration of same jurisdictional claim); Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (2d Cir.1983) (although appellate court in affirming dismissal for lack of subject matter juris- ■ diction did so "without prejudice,” this statement did not defeat effect of judgment with respect to issue preclusion on issues of jurisdiction); Oglala Sioux Tribe of Pine Ridge Indian Reservation v. Homes…
discussed
Cited as authority (rule)
Clodfelter v. Republic of Sudan
Co. v. U.S. Dep’t of Labor, 891 F.2d 1211, 1212 (6th Cir.1989) (“[A] district court may invoke the doctrine of res judicata in the interests of, inter alia, the promotion of judicial economy.” (emphasis added)); McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir.1986); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980).
discussed
Cited as authority (rule)
Comer v. Murphy Oil USA, Inc.
Accordingly, “[although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merit so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims.” Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (per curiam) (affirming the district court’s sua sponte dismissal, on the basis of res judicata, of a complaint raising claims that had been dismissed for lack of jurisdiction in a previously filed case). 10 In sum, t…
discussed
Cited as authority (rule)
Ned Comer v. Murphy Oil USA, Inc.
Accordingly, “[a]lthough the dismissal of a complaint for lack of jurisdiction does not adjudicate the merit so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims.” Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (per curiam) (affirming the district court’s sua sponte 10 Case: 12-60291 Document: 00512241394 Page: 11 Date Filed: 05/14/2013 No. 12-60291 dismissal, on the basis of res judicata, of a complaint raising claims tha…
discussed
Cited as authority (rule)
Jefferson v. Community Bank (In re Jefferson)
Co., No. 06-31178, 2008 WL 3086783 , at *5 (5th Cir. Aug. 6, 2008) (unpublished); see Borgships, Inc. v. Ferrera, 163 F.3d 1356 , 1998 WL 857875, *3 (5th Cir.1998) (discussing Baris v. Sulpicio Lines, Inc., 74 F.3d 567 (5th Cir.1996), in which the Fifth Circuit affirmed dismissal based on forum non conveniens doctrine as on the merits of the f.n.c. issue but not on the merits of the entire claim for res judicata purposes); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (dismissal for lack of jurisdiction does not adjudicate merits thus no res judicata on substance of claim asserted).
cited
Cited as authority (rule)
Comer v. Murphy Oil Usa, Inc.
Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980).
discussed
Cited as authority (rule)
Shurick v. Boeing Co.
Although Federal Rule of Civil Procedure 8(c) classifies claim preclusion as an affirmative defense, “[d]ismissal by the court sua sponte on res judicata grounds ... is permissible in the interest of judicial economy where both actions were brought before the same court.” Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980); cf. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (era banc) (”[T]he decisions of the United States Court of Appeals for the [former] Fifth Circuit ... shall be binding as precedent in the Eleventh Circuit .... ”).
discussed
Cited as authority (rule)
Carlos Shurick v. The Boeing Company
We therefore requested supplemental briefing on the question and turn now to the substance of the issue.2 1 See 28 U.S.C. §§ 1332 , 1441. 2 Although Federal Rule of Civil Procedure 8(c) classifies claim preclusion as an affirmative defense, “[d]ismissal by the court sua sponte on res judicata grounds . . . is permissible in the interest of judicial economy where both actions were brought before the same court.” Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980); cf. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (“[T]he decisions of the United States Court of…
discussed
Cited as authority (rule)
Texas Architectural Aggregate, Inc. v. ACM-Texas, LLC (In re ACM-Texas, Inc.)
Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (finding a Court’s sua sponte dismissal on res judicata grounds permissible although Rule 8(c) of the Federal Rules of Civil Procedure designates res judicata as an affirmative defense).
discussed
Cited as authority (rule)
In Re Acm-Tex., Inc.
Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (finding a Court's sua sponte dismissal on res judicata grounds permissible although Rule 8(c) of the Federal Rules of Civil Procedure designates res judicata as an affirmative defense).
discussed
Cited as authority (rule)
Richards v. SEN
(2×)
also: Cited "see"
Membership Corp. v. City of Calhoun, 989 F.2d 429, 433 (11th Cir.1993) (“ ‘Although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merits so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims’ ”) (quoting Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980)).
discussed
Cited as authority (rule)
Johnson v. LaSalle Bank National Ass'n
Membership Corp. v. City of Calhoun, Ga., 989 F.2d 429, 433 (11th Cir.1993)(“Although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merits so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims.”); Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir. 1987)(“A ruling granting a motion to dismiss for lack of subject matter jurisdiction is not on the merits; its res judicata effect is limited to the qu…
discussed
Cited as authority (rule)
Frank C. Minvielle LLC v. Atlantic Refining Co.
(2×)
Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (per curiam).
cited
Cited as authority (rule)
Dawson Farms, LLC v. Farm Service Agency
See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 , 60 S.Ct. 907 , 84 L.Ed. 1263 (1940); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980).
discussed
Cited as authority (rule)
John v. United States
Membership Corp. v. City of Calhoun, 989 F.2d 429, 433 (11th Cir.1993) (subject matter jurisdiction); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (jurisdiction); cf. Okoro v. Bohman, 164 F.3d 1059, 1062-64 (7th Cir.1999) (allowing party to avoid bar of collateral estoppel from dismissal of prior action ruled frivolous because bar applied only to the precise ground of dismissal).
discussed
Cited as authority (rule)
People of Bikini v. United States
Membership Corp. v. City of Calhoun, 989 F.2d 429, 433 (11th Cir.1993) (subject matter jurisdiction); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (jurisdiction); cf. Okoro v. Bohman, 164 F.3d 1059, 1062-64 (7th Cir.1999) (allowing party to avoid bar of collateral estoppel from dismissal of prior action ruled frivolous because bar applied only to the precise ground of dismissal).
discussed
Cited as authority (rule)
White v. School Bd. of Hillsborough County
As Defendant notes, the doctrine of claim preclusion does not apply in this case because “the dismissal of a complaint for lack of jurisdiction does not adjudicate the merit so as to make the case res judicata.” Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980).
discussed
Cited as authority (rule)
Kansas City So Rwy v. Can Natl/IL Ctrl RR
(2×)
Mowbray v. Cameron County, Tex., 274 F.3d 269, 281 (5th Cir. 2001), cert. denied, 535 U.S. 1055 (2002) (citing Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980)).
discussed
Cited as authority (rule)
Saladino v. United States
Membership Corp. v. City of Calhoun, 989 F.2d 429, 433 (11th Cir.1993) (subject matter jurisdiction); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (jurisdiction); cf. Okoro v. Bohman, 164 F.3d 1059, 1062-64 (7th Cir.1999) (allowing party to avoid bar of collateral estoppel from dismissal of prior action ruled frivolous because bar applied only to the precise ground of dismissal).
cited
Cited as authority (rule)
Patrick v. KOEPKE CONST. v. WOODSAGE CONST.
In re Medomak Canning, 922 F.2d 895 , 904 (1st Cir.1990); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980).
cited
Cited as authority (rule)
Patrick V. Koepke Construction, Inc. v. Woodsage Construction Co.
In re Medomak Canning, 922 F.2d 895 , 904 (1st Cir.1990); Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980).
discussed
Cited as authority (rule)
Hung Duc Bui v. IBP, Inc.
Membership Corp. v. City of Calhoun, Georgia, 989 F.2d 429, 432-33 (11th Cir.1993) (dismissal of prior suit for lack of subject matter jurisdiction bars relitigation of jurisdictional question); GAF Corporation v. United States, 818 F.2d 901, 912-13 (D.C.Cir.1987) (judgment ordering dismissal for lack of jurisdiction will preclude relitigation of precise issue of jurisdiction that led to initial dismissal); Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d 1407, 1411-1413 (8th Cir.1983) (dismissal of suit for lack of federal subject matter jurisdiction precludes relitigation of the same iss…
discussed
Cited as authority (rule)
Carrollsburg v. Anderson
Although “res judicata is an affirmative defense that must be pleaded, not raised sua sponte,” Mowbray v. Cameron County, Texas, 274 F.3d 269, 281 (5th Cir.2001) (citation omitted), a trial court may raise res judicata grounds sua sponte “in the interest of judicial economy where, [as here,] both actions were brought before the same court.” Id. (citing Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980) (other citation omitted)).
discussed
Cited as authority (rule)
Mowbray v. Cameron County, TX
The first exception allows “[djismissal by the court sua sponte on res judicata grounds ... in the interest of judicial economy where both actions were brought before the same court.” Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980); accord United Home Rentals, Inc. v. Tex. Real Estate Comm’n, 716 F.2d 324, 330 (5th Cir.1983).
discussed
Cited as authority (rule)
Jones v. Law Firm of Hill and Ponton
In North Georgia Electric Membership Corporation, the Eleventh Circuit stated: Although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merits so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims. 989 F.2d at 432—433 (quoting Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir.1980)); see also Cutler v. Hayes, 818 F.2d 879, 888 (D.C.Cir.1987) (standing may not be relitigated); Restatement (Second) of Judgment…
Retrieving the full opinion text from the archive…
Joe BOONE and Mary Alice Boone, Plaintiffs-Appellants,
v.
Jerome KURTZ, Commissioner of Internal Revenue and David C. Loesel Et Al., Defendants-Appellees
v.
Jerome KURTZ, Commissioner of Internal Revenue and David C. Loesel Et Al., Defendants-Appellees
79-2822.
Court of Appeals for the Fifth Circuit.
May 23, 1980.
Taylor W. O’Hearn, Shreveport, La., Joseph A. Boone, Irwinton, Ga., for plaintiffs-appellants., Denver L. Rampey, Jr., U. S. Atty., Macon, Ga., M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Chief, App. See., Jonathan S. Cohen, Francis J. Gould, Tax Div., Dept. of Justice, Washington, D. C., for defendants-appellees.
Roney, Kravitch, Tate.
Cited by 97 opinions | Published
PER CURIAM:
Joe and Mary Alice Boone filed a complaint alleging violations of their Fourth and Fifth Amendment rights in the procedure followed by defendants in assessing an income tax deficiency.
Several months earlier, they had filed a complaint which they concede was “almost identical” to the one before the district court. The court dismissed the earlier complaint for lack of jurisdiction, and the order of dismissal was not appealed.
The prior “almost identical” complaint having been dismissed for lack of jurisdiction, the district court dismissed this complaint under the doctrine of res judicata.
The earlier suit was brought against Loe-sel, an IRS revenue agent, and two unnamed IRS agents. The second suit added Kurtz, Commissioner of the IRS, as a defendant. “There is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government.” Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03, 60 S.Ct. 907, 917, 84 L.Ed. 1263 (1940); see Mervin v. FTC, 591 F.2d 821, 830 (D.C. Cir. 1978).
Although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merit so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court’s jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims. Mulcahy v. United States, 388 F.2d 300 (5th Cir. 1968); Shaw v. Merritt-Chapman & Scott Corp., 554 F.2d 786 (6th Cir.), cert. denied, 434 U.S. 852, 98 S.Ct. 167 (1977); Sanchez v. Caribbean Carriers Ltd., 552 F.2d 70 (2d Cir.), cert. denied, 434 U.S. 853, 98 S.Ct. 168, 54 L.Ed.2d 123 (1977); see Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963).
The record on appeal is incomplete, containing neither the complaint nor the order of dismissal in the earlier action. Both actions, however, were before the same court. The district court sua sponte dismissed on res judicata grounds even though Fed.R.Civ.P. 8(c) denominates res judicata as an affirmative defense. Dismissal by the court sua sponte on res judicata grounds, however, is permissible in the interest of judicial economy where both actions were brought before the same court. See Hicks v. Holland, 235 F.2d 183 (6th Cir.), cert. denied, 352 U.S. 855, 77 S.Ct. 83, 1 L.Ed.2d 66 (1956); cf. W. E. Hedger Transportation Corp. v. Ira S. Bushey & Sons, Inc., 186 F.2d 236 (2d Cir. 1951) (motion to dismiss).
AFFIRMED.