The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
On September 29, 1982 this Court entered judgment on the
original jury verdicts in favor of 112 individual plaintiffs*fn1
and against United Air Lines, Inc. ("United"). On October 26 this
Court amended those judgments by entering judgments for double
damages based on the jury's special interrogatory answer finding
United's violation of the Age Discrimination in Employment Act
("ADEA") to have been willful.
John W. Buoy ("Buoy") has moved for summary judgment against
United, contending this Court's earlier judgments and Buoy's
November 17, 1982 Affidavit ("Buoy Aff.") establish United's
liability for violations of his rights under ADEA. Although
Buoy's use of Fed.R.Civ.P. ("Rule") 56 is unorthodox, for the
reasons stated in this
memorandum opinion and order Buoy's motion is granted.*fn2
In 1981 Buoy received the court-authorized Notice of the
pendency of the Monroe and Higman class actions. That Notice
contained (at 2-3) the following paragraph (footnote in
If you are among the persons to whom this notice is
addressed and you wish to become an additional party
plaintiff, you should file your consent to be made a
party plaintiff with the Clerk of the Court. It is
entirely your own decision whether or not to do so
and, if you do elect to become a party plaintiff,
whether you prefer to be represented by the present
plaintiffs' attorneys*fn1 or by an attorney of your
choosing. If you file a consent through a separate
attorney, your Notice of Consent should be under the
caption of the cases as listed above, should contain
your name, address, telephone number, date of birth,
date of signing and signature, and should state: "I
hereby consent to be a party plaintiff in this case."
Footnote 1 to the Notice identified the attorneys for the
plaintiffs then of record and said: "If you wish them to
represent you, you should write them directly."
Buoy timely filed with the Clerk of Court a written consent to
be a party plaintiff. However, he neither communicated with the
attorneys already of record for the prior plaintiffs nor arranged
for separate representation. As a result Buoy's presence was
never called to this Court's attention, and his claims did not go
to the jury.
Buoy's present effort may arguably be viewed in either of two
ways: as a party plaintiff seeking the benefit of the judgment
against United, or as a non-party plaintiff invoking principles
of offensive collateral estoppel. Both perspectives entitle him
First, the opt-in provisions of 29 U.S.C. § 216(b) and 626(b)
literally make those who exercise that right parties to
representative actions they have joined. See Woods v. New York
Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982). Though Buoy did
not heed the Notice by designating counsel to act for him, he did
comply with the statutory consent requirement. That was enough to
make him a plaintiff. As a plaintiff he has derived the benefit
of the jury's determinations adverse to United, just as he would
have borne the burdens of the jury's determinations had they been
favorable to United and against the plaintiffs.*fn3 And Buoy
Aff. ¶ 1 asserts — and United does not contest — the one
essential element of Buoy's claim the jury did not determine:
that he was forcibly retired under United's Age 60 Policy.
Together the jury's determinations and Buoy's uncontested
affidavit place him on a par (save for the question of damages)
with the parties whose claims actually went to the jury.
Suppose however that were not the case — that Buoy came into
this case in a partially flawed way that did not make him
a full-fledged plaintiff here.*fn4 In that event he still asks
to bar United from relitigating what it has fought and lost in
its contest with the unquestioned plaintiffs. Such a contention
looks much like the classic offensive collateral estoppel
argument, and it bears at least brief analysis.
As a technical matter a summary judgment motion may not really
be just the right vehicle for an argument like Buoy's.*fn5 That
point aside, in the usual offensive collateral estoppel situation
the preclusive effect of the earlier judgment will be limited to
preventing relitigation of certain discrete issues, and the
earlier judgment will not itself determine the liability of a
defendant to a later plaintiff. See Oberweis Dairy, Inc. v.
Associated Milk Producers, Inc., 553 F. Supp. 962, 965 (N.D.Ill.
1982). But again Buoy has filled that ordinary gap between
precluded issues and established liability by filing his
United first contends (Ans. Mem. 2-3) Buoy lacks "standing" to
move for summary judgment because he never became a party to
these consolidated actions. That position must be rejected out of
hand, for it would unreasonably treat Buoy's unequivocal and
timely consent as a total nullity. Even if Buoy were not a
full-fledged party (the doubtful proposition assumed arguendo for
this part of this opinion), surely he opted into this case
sufficiently to acquire standing to assert his interest.
United's contention (Ans. Mem. 4-5) Buoy was a "wait-and-see"
plaintiff is equally without merit. That concept stems from the
Supreme Court's direction such a plaintiff should not benefit
from the offensive use of collateral estoppel, Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 330-31, 99 S.Ct. 645, 651, 58 L.Ed.2d
552 (1979). It simply has no application to Buoy: He leaped in
and did not wait. Buoy is more the invisible plaintiff than the
calculating one described in Parklane Hosiery. See R. Mem. 4-6.
Finally United contends (Ans. Mem. 5-6) it can litigate against
Buoy a defense this Court held waived by its failure to plead
that defense in its Higman Answer.*fn6 That might perhaps be a
tenable argument in the garden-variety offensive collateral
estoppel case, in which the name of the game is issue preclusion
and not claim preclusion. But the simple answer here is in the
specific language of the Notice governing Buoy's opt-in consent
(see n. 3). This Court's ...