The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
On August 13, 1981 our Court of Appeals dismissed the appeal
of defendant American Academy of Orthopaedic Surgeons
("Academy") from this Court's order denying Academy's motion
for a preliminary injunction seeking to bar discovery by
plaintiffs R. Anthony Marrese and Michael R. Treister ("Drs.
Marrese and Treister"). In note 1 of its unpublished order in
No. 81-1570 (7th Cir. Aug. 13, 1981) the Court invited
reconsideration of the prior order of this Court, 496 F. Supp. 236
(N.D.Ill. 1980), which had been made a principal part of
the oral argument on the aborted appeal:
1 In its motion to dismiss, the Academy argued,
inter alia, that this suit was barred by the
doctrine of res judicata because of previous
litigation brought by plaintiffs against the
Academy in the Circuit Court of Cook County,
Illinois. See Treister v. Academy of Orthopaedic
Surgeons, 78 Ill.App.3d 746 [33 Ill.Dec. 501]
396 N.E.2d 1225 (1st Dist. 1979), leave to appeal
denied, 79 Ill.2d 630. The district court held
plaintiffs' antitrust claims were not barred by res
judicata because they could not have been raised in
state court. The propriety of this ruling is not
before this Court. However, we presume that the
motion to dismiss will be renewed and reconsidered
in light of the Supreme Court's recent decision in
Federated Department Stores, Inc. v. Moitie, ___
U.S. ___, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981).
This Court has sua sponte accepted the Court of Appeals'
invitation as a directive. However it does not view
Federated as calling for a different conclusion from that
previously reached on the res judicata issue — and with all
respect to the Court of Appeals' suggestion, this Court does
not believe its adherence to its original position is simply a
matter of "coming out the same door it went in."
Brown I was a federal antitrust action that "tracked almost
verbatim the allegations of the Government's [Sherman Act]
complaint" (___ U.S. at ___, 101 S.Ct. at 2426). Once the
District Court for the Northern District of California had thus
acquired jurisdiction of the parties it had the power to
consider not only the federal antitrust action but also any
essentially identical state claims that Brown may have had
against Federated and its co-defendants. That being so the
District Court's dismissal of Brown's action "in its entirety"
on the merits, when it became final, foreclosed all claims that
Brown had asserted or might have asserted before the federal
court. As Justice Rehnquist put it for the Court in Federated,
___ U.S. at, ___, 101 S.Ct. at 2427:
There is little to be added to the doctrine of
res judicata as developed in the case law of this
Court. A final judgment on the merits of an
action precludes the parties or their privies
from relitigating issues that were or could have
been raised in that action. Commissioner v. Sunnen,
333 U.S. 591, 597 [68 S.Ct. 715, 92 L.Ed. 898]
(1948); Cromwell v. County of Sac, 94 U.S. 351,
352-353 [24 L.Ed. 195] (1877).
It was therefore fitting and proper for the Supreme Court to
reverse the Court of Appeals, which had "conceded that the
`strict application of the doctrine of res judicata' required
that Brown II be dismissed" but nonetheless out of equitable
considerations had sought to create an unwarranted and
"unprecedented departure from accepted principles of res
But as this Court pointed out in its earlier opinion in this
case, Drs. Marrese's and Treister's federal antitrust issues
against Academy — which this Court is called on to adjudicate
in this action — are not, as the Supreme Court put it in
Federated, "issues that were or could have been raised in that
action" — the state court action presented to the first forum
that ruled on disputes between the parties. Had Drs. Marrese
and Treister sought to insert their federal antitrust claim
into their state court complaint they could not have done so,
for "jurisdiction of federal antitrust suits is exclusively in
the federal courts." Kurek v. Pleasure Driveway & Park District
of Peoria, 583 F.2d 378, 379 (7th Cir. 1978). Therefore when
the Illinois state courts dismissed Drs. Marrese's and
Treister's lawsuits for failure to state a cause of action
under Illinois law:
(1) They could not have been deciding that Drs.
Marrese and Treister had failed to state a cause
of action under the federal antitrust laws.
Accordingly issue preclusion — collateral estoppel
— does not bar the federal claim before this
(2) They could not be deemed to have foreclosed
a claim that Drs. Marrese and Treister by
definition could not have asserted before then.
Accordingly the doctrine of res judicata does not
bar the federal claim before this Court.
If Academy has other authority to advance in support of its
position, not already submitted in its first presentation of
the issues to this Court, the Court will welcome the
opportunity to consider such authority. If not, it ...