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Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)

From: Alexander Terekhov
Subject: Re: Hey Terekhov: Wallace lost. Who'd guess.... ;)
Date: Tue, 18 Jul 2006 10:44:45 +0200

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

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)


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