On receipt and consideration of an appeal in the above-styled case; and
Noting that the District Judge entered an order dismissing the cause of action on grounds of res judicata; and
Noting that summary judgment had previously been granted in relation to a complaint reciting the same operative facts as are involved in the instant complaint, but that appellant argues that his second cause of action should not be barred because it involves a different legal theory; and
On inspection of the two complaints, this court being convinced that the legal theory now sought to be advanced could have been advanced as a part of the original complaint and that the doctrine of res judicata bars this action, as found by the District Judge,
Now, therefore, the judgment of the District Court is affirmed. Coogan v. Cincinnati Bar Association, 431 F.2d 1209 (6th Cir. 1970). See particularly Williamson, Trustee v. Columbia Gas and Electric Corp., 186 F.2d 464, 469-70 (3d Cir. 1950), cert. denied, 341 U.S. 921, 71 S.Ct. 743, 95 L.Ed. 1355 (1951).
Atherton v. Anderson, 86 F.2d 518 (6th Cir. 1936), does not control this case in view of the significant changes in pleading practice in federal courts since Atherton was decided. See Federal Rules of Civil Procedure, Rules 7, 10 and 18.
Entered by order of the Court.