and took the stand to testify at length about his injuries.
In support of their contentions about Diaz's status as a party,
both defendants and Diaz cite Warth v. Seldin, 422 U.S. 490, 95
S.Ct. 2197, 45 L.Ed.2d 343 (1975), in which the Supreme Court
discussed the standing of an association to sue on behalf of
itself and its members. Under the principles enunciated in Warth,
SACC was in fact able to assert the associational rights of all
its members, Diaz included. There is no question that SACC
purported to do this, both in its complaint and at trial. See,
e.g., SACC Trial Transcript at 363-64 ("As I have often
explained, we are suing because when the organization's rights
were violated, all of its members' freedom of association to
associate with a group that they belonged to was also violated.
All the members of the Spanish Action Committee had their
individual associational rights violated.") However, Diaz argues
that Warth also holds that an association has no standing to sue
for damages which are unique to a single member. See Warth, 422
U.S. at 515-16, 95 S.Ct. at 2213-14. Thus, Diaz asserts, SACC
could not have represented him at trial, because his injuries
differed from those of other members.
Given the holding in Warth that an association member must join
an action as a separate party to recover particularized damages,
we cannot say that Diaz was, in this sense, a party in the SACC
case. Nevertheless, the fact remains that SACC represented Diaz's
First Amendment right of association in the earlier litigation.
It is apparent, then, that cases such as Warth which address only
issues of standing shed little light on the questions of
preclusion present in this case.*fn2 We thus turn to the case
law dealing directly with preclusion issues.
Several recent cases illustrate "a loosening of the traditional
and sometimes artificial limitations on the application of res
judicata and collateral estoppel doctrines." Gerrard v. Larsen,
517 F.2d 1127, 1134 (8th Cir. 1975); see also United States v.
ITT Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir. 1980); Jackson
v. Hayakawa, 605 F.2d 1121, 1126 (9th Cir. 1979), cert. denied,
445 U.S. 952, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980). For example,
in Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59
L.Ed.2d 210 (1979), the Supreme Court held that one who is not a
party still may be bound by a prior action if he had a sufficient
interest in and control over the action. Id., 440 U.S. at 154, 99
S.Ct. at 974. Other courts have gone even further, not requiring
a nonparty to have control over the earlier litigation, but
simply inquiring whether the nonparty fairly and actively
participated in the first action. E.g., Pinto Trucking Service,
Inc. v. Motor Dispatch, Inc., 649 F.2d 530, 532 (7th Cir. 1981);
ITT Rayonier, 627 F.2d at 1003; Gerrard, 517 F.2d at 1135;
Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned
Sailing Vessel, 459 F. Supp. 507, 518 (S.D.Fla. 1978), aff'd,
621 F.2d 1340 (5th Cir. 1980), aff'd in part and reversed in part,
458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982); see also 18
C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure
§ 4456 (1981) ("Any [association] member who actively
participated in the first action should also be barred, without
insisting on the same degree of involvement that is required by
ordinary standards of participation and control.") (footnote
omitted); 1B J. Moore, J. Lucas & T. Currier, Moore's Federal
Practice ¶ 0.411 (2d ed. 1984).
In holding a nonparty bound because of his participation in an
earlier proceeding, some courts have spoken of an expanding
motion of privity. E.g., Gerrard, 517 F.2d at 1134 (fair and
adequate participation in the prior adjudication is "functional
privity"). Other authorities, including the Restatement
(Second) of Judgments, have abandoned the term "privy"
altogether. See Montana, 440 U.S. at 154 n. 5, 99 S.Ct. at 974 n.
5. Regardless of the nomenclature used, we believe Diaz is barred
by the SACC action from bringing this case.
We have already noted that Diaz participated extensively in the
SACC trial. He was one of SACC's primary witnesses, and his
injuries were identified with the injuries suffered by SACC and
its other members.*fn3 His presence in court at counsel table as
SACC's representative, while perhaps not enough to make him a
party, demonstrates how closely related Diaz's and SACC's
interests were. Indeed, as explained above, some of his interests
were actually represented by SACC in the earlier action.
There is no doubt that Diaz knew about the SACC case from its
inception. However, Diaz has offered no good reason for failing
to join that action as a separate party to seek whatever special
damages to which he may have been entitled.*fn4 To the contrary,
when asked why Diaz did not sue on his own behalf before now, his
attorney (who also represented SACC earlier) stated, "Mr. Diaz
didn't want to, your Honor." Such reticence is not without its
costs. As the Eighth Circuit observed,
In this era of overcrouded dockets the courts have
a positive duty to restrict needless relitigation of
issues. As Justice White has noted, "[t]he broader
question is whether it is any longer tenable to
afford a litigant more than one full and fair
opportunity for judicial resolution of the same
issue." Blonder-Tongue Laboratories Inc. v.
University of Illinois Foundation, supra, 402 U.S.
 at 328, 91 S.Ct.  at 1442 [28 L.Ed.2d 788
Gerrard, 517 F.2d at 1134.
Various courts have either held or suggested that the
opportunity to intervene may be enough to bind a person not a
party. See, e.g., Provident Tradesmens Bank & Trust Co. v.
Patterson, 390 U.S. 102, 114, 88 S.Ct. 733, 740, 19 L.Ed.2d 936
(1968); Penn-Central Merger and N. & W. Inclusion Cases,
389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723 (1968); Cummins Diesel
Michigan, Inc. v. The Falcon, 305 F.2d 721 (7th Cir. 1962);
Treasure Salvors, 459 F. Supp. at 516. Unlike the nonparties in
some of these cases, however, Diaz did not merely have notice of
the other proceeding. Diaz actively participated in the SACC
case, so preclusion of his action is even more appropriate.
We agree with the Eighth Circuit that "[i]n light of the
changing application of the concepts of res judicata and
collateral estoppel, the question of who should be bound by a
prior adjudication ought to be resolved on a case by case basis
by an examination of underlying facts and circumstances rather
than by reliance solely upon the formal status of persons against
whom an estoppel is asserted." Gerrard, 517 F.2d at 1135
(citation omitted). The underlying facts and circumstances of
this case lead the Court to the inescapable conclusion that Diaz
should be bound by the SACC action. Accordingly, defendants'
motion to dismiss is granted. It is so ordered.