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United States District Court, Northern District of Illinois, E.D

March 18, 1983


The opinion of the court was delivered by: Shadur, District Judge.


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 original):

  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 to relief.

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 affidavit.

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 decision on the waiver issue was made under that ground rule, applicable alike to the opt-in plaintiff and to United:

  [Y]ou will be bound by the judgment of the court on
  all issues in the case, whether it is favorable or
  unfavorable to you.

See R. Mem. 6-9.

Indeed even in the usual collateral estoppel situation United's position is untenable. It has not shown why it should be allowed to litigate with Buoy the waived defense it could not relitigate with any of the Higman plaintiffs. Nor has it shown why it should be allowed to relitigate the question whether the defense was waived. See Restatement (Second) of Judgments §§ 27-29 (1982).

In short, even were this case one for offensive collateral estoppel the very considerations of fairness and judicial economy that supported the Supreme Court's adoption of that doctrine in Parklane Hosiery, 439 U.S. at 329-31, 99 S.Ct. at 650-51, counsel granting Buoy's motion in this action. United had the opportunity to litigate — both fully and fairly — all the issues raised in Higman, and there is no identified unfairness in precluding it from relitigating any of those issues against Buoy. Id. at 331-33, 99 S.Ct. at 651-52. Moreover, United has not challenged Buoy's assertion he was forcibly retired, the gravamen of the Higman Complaint and the one individualized liability issue the jury did not determine as to Buoy.


Whatever view is taken of the effect of Buoy's opt-in notice, this Court finds there is no genuine issue of fact material to the question of United's liability to Buoy under ADEA. Buoy is therefore entitled to judgment on the issue of liability alone. This Court will await the motion of either Buoy or United suggesting the appropriate means of dealing with the issues of relief: Buoy's claimed damages and any prayer for reinstatement.

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