The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge.
MEMORANDUM OPINION AND ORDER
Upon receipt of the Fed.R.Civ.P. ("Rule") 56 motion filed by Direct Marketing Concepts, Inc. ("Direct Marketing"), by which it seeks to dismiss the two-count Counterclaim brought against it by Robert Barefoot ("Barefoot"), this Court promptly issued the attached April 11, 2003 memorandum order ("Order") that both set the time for Barefoot's response and attempted to focus his counsel's attention on the issues that had to be dealt with if he were to survive the motion. Barefoot's counsel has just filed a timely responsive Memorandum in Opposition. Because Barefoot's submission fails at several levels and because it is difficult to rank its flaws in their order of importance, this memorandum opinion and order will simply tick them of f as they appear in the Memorandum.
In part Order at 4-5 excused Barefoot from having "to comply fully with the detailed requirements of this District Court's LR 56.1" (which has been adopted to implement Rule 56), because Direct Marketing's motion is legally-oriented rather than factbased. Accordingly Barefoot's counsel has properly eschewed such LR 16.1 compliance, instead substituting his Statement of Facts at Mem. 2-5. But in setting out Barefoot's version of events in the Background portion of that statement (Mem. 2-3), Barefoot's counsel apparently fails to realize that the statement simply buttresses Direct Marketing's position that Barefoot's merits-oriented assertions confirm their parallelism to the assertions and arguments that he and his counsel had previously tendered to the United States District Court for the Central District of California in what his Memorandum refers to as the "California Action" (a label that will be used here as well). That of course is precisely one of the components that is integral to Direct Marketing's preclusion argument on which its Rule 56 motion is based.
When Barefoot's counsel then turns from the Statement of Facts section to the Memorandum's section captioned Argument, the first contention advanced there is this (Mem. 6):
The California District Court Improperly Directed the Barefoot Claims
But that position is totally frivolous when urged on this Court: It too actually confirms Direct Marketing's point that Barefoot is trying to relitigate in this lawsuit the identical issue on which he lost in the California Action. This Court does not of course sit in review on District Judge Manuel Real, who dealt with that lawsuit and that issue — such review is reserved to the Court of Appeals for the Ninth Circuit, before which the question of the propriety of Judge Real's order requiring arbitration is pending. If Barefoot's counsel had wanted to fashion an argument in favor of (rather than against) preclusion, he could scarcely have done a better job.
Next, the contentions advanced at Mem. 8-12 (its final section, headed "Barefoot's Counterclaim Should Not Be Dismissed Here," are problematic in more than one way. To begin with, even though Barefoot's counsel attempts to "put new wine into old bottles"*fn1 by seeking to distinguish the types of claims that were advanced in the California Action from those presented in the present Counterclaim, what that argument does not face up to is that Judge Real's ruling necessarily upheld the validity of the arbitration clause in. the contract between Barefoot and Direct Marketing. And that of course subsumed the question whether a contract existed at all in the sense sufficient to create an obligation to arbitrate Barefoot's disputes with Direct Marketing (although it did not necessarily determine the ultimate enforceability of, or possible defenses to, the contract itself). With those things being so, Barefoot cannot relitigate those matters here for the reasons already articulated in the Order (which need not be repeated here). In that respect Barefoot's counsel misses entirely the point of the Order's collateral reference to the Prima Paint and Sweet Dreams decisions (Order at 3), which simply pointed to those cases as possible support for Judge Real's decision (an issue, once again, as to which the Order expressly refrained from reviewing on the merits).*fn2
Lastly, although Mem. 9-11 seeks to dispute the potential applicability of claim preclusion as a basis for rejecting Barefoot's Counterclaim, such a holding is unnecessary to the resolution of Direct Marketing's motion. Instead it is enough to say that issue preclusion applies because Barefoot — having lost not only the battle of enforceability of the arbitration clause (Order at 4) but also, in doing so, having lost the other battle referred to in the preceding paragraph — cannot renew those battles in this forum. And as Order at 4 and the authorities cited there confirm, that is unaffected by the pendency of the appeal from Judge Real's decision.
There is no genuine issue of material fact as to the sustainability or nonsustainability of Barefoot's Counterclaim, and Direct Marketing is entitled to a judgment as a matter of law in that respect. Direct Marketing's Rule 56 motion for dismissal of the Counterclaim is granted. One last point: Nothing has been said in Direct Marketing's motion or supporting materials that seeks to attach finality ...