Alexander Terekhov wrote: [...] > Both courts ruled (and erred) on the issue of injury (standing). It's > the same legal situation as with a case asserting patent infringement > (for example) filed by someone not owning enforceable rights. > > Try reading > > http://www.ll.georgetown.edu/FEDERAL/judicial/fed/opinions/02opinions/02-1555.html
RedHat and Novell filed reply brief in Wallace appeal action. It's exciting! Can't believe it!!! (quoting CONCLUSION) ----- the District Court's dismissal of Plaintiffs claims should be affirmed on the grounds that relitigation of the issue of antitrust injury is barred by collateral estoppel based on the final judgment entered by the District Court in the FSF Action. ----- AND THAT'S IT! No other argument(s) from RedHat and Novell. Seems they forgot to mention a couple of things in their collateral estoppel claim: "The collateral estoppel doctrine bars the relitigation of an issue of law or fact that was litigated and decided in a prior case between the same parties or their privies. See Havoco of Am., Ltd. v. Freeman, Atkins & Coleman, Ltd., 58 F.3d 303, 307-08 (7th Cir. 1995)"; Kraushaar v. Flanigan, 45 F.3d 1040, 1050 (7th Cir. 1995). "As the Supreme Court of the United States has stated: "Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation." Montana v. United States, 440 U.S. 147, 153 (1979). "A suit dismissed for lack of jurisdiction cannot also be dismissed 'with prejudice'; that's a disposition on the merits, which only a court with jurisdiction may render." Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) This rule has deep common law roots, and is preserved now in Fed. R. Civ. P. 41(b). See Costello v. United States, 365 U.S. 265, 285-86 (1961). Rule 41(b) provides as follows: (b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. (emphasis added). Brereton v. Bountiful City Corp., -- F.3d --, No. 05-4067, 2006 WL 182063, at *2 (10th Cir. 2006) regards, alexander. _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
