green
Positive treatment
Quoted verbatim 3×
48.8 score
“finality' in the context here relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.”
Treatment trajectory · 1961 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers.
How cited ↗
discussed
Cited "but see"
MTS, Inc. v. 200 East 87th Street Associates
But see Don King Productions, Inc. v. Douglas, 742 F.Supp. 741, 754 (S.D.N.Y.1990) (exceptions to finality requirement exist “where a ruling is rendered ‘practically’ final owing to factors demonstrating ‘that it was not avowedly tentative’ ”) (quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961), cert. denied, 368 U.S. 986 , 82 S.Ct. 601 , 7 L.Ed.2d 524 (1962)).
discussed
Cited "but see"
Scheiner v. Wallace
But see Don King Productions, Inc. v. Douglas, 742 F.Supp. 741, 754 (S.D.N.Y.1990) (exceptions to finality requirement exist “where a ruling is rendered ‘practically’ final owing to factors demonstrating ‘that it was not avowedly tentative’”) (quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961), cert. denied, 368 U.S. 986 , 82 S.Ct. 601 , 7 L.Ed.2d 524 (1962)).
discussed
Cited as authority (quoted)
Lakah v. UBS AG
he general policy of preventing relitigation applies with peculiar force to issues preliminary to arbitration.
discussed
Cited as authority (quoted)
Snow v. Countrywide Home Loans, Inc. (In Re Snow)
finality' ... may mean little more than that the litigation of a particular issue has reached such a stage that a court sees really no good reason for permitting it to be litigated again.
examined
Cited as authority (quoted)
Michael Dyndul v. Irena Dyndul
finality' in the context here relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.
cited
Cited as authority (rule)
In Re The Estate Of Gudrun Agusta Gary, Steven Gianesini, App. V. Tyler Gianesini, Resp.
Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961), cert. denied, 368 U.S. 986 (1962), quoted in Cunningham, 61 Wn.
discussed
Cited as authority (rule)
Awan v. Mather
Dawson v. Lummus Co., 82 S. Ct. 601 (1962)). 144 Bell v. Taylor, 827 F.3d 699, 707 (7th Cir. 2016) (alteration in original) (citation omitted). 145 See Mills v. City of Covina, 921 F.3d 1161, 1169 (9th Cir. 2019); Lummus, 297 F.2d at 89; Intell.
discussed
Cited as authority (rule)
Washburn v. Clark
Where the Circuit Court’s decision on the validity of the sale of the Property was “adequately deliberated and firm,” and the Divorce Proceeding has fully concluded, there is “no really good reason for permitting it to be litigated again.” Morgan, 510 A.2d at 270 (quoting In Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961)) (finding that issue preclusion barred the relitigation of a court determination after a divorce that the marital home would be sold by a trustee rather than subject to partition).
discussed
Cited as authority (rule)
Washburn v. Nunez
Where the Circuit Court’s decision on the validity of the sale of the Property was “adequately deliberated and firm,” and the Divorce Proceeding has fully concluded, there is “no really good reason for permitting it to be litigated again.” Morgan, 510 A.2d at 270 (quoting Jn Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961)) (finding that issue preclusion barred the relitigation of a court determination after a divorce that the marital home would be sold by a trustee rather than subject to partition).
cited
Cited as authority (rule)
Palmer/Kane LLC v. Benchmark Education Company LLC
Co., Inc., 297 F.2d 80, 89 (2d Cir.1961), cert. denied, 368 U.S. 986 (1962)) (denial of summary judgment deemed insufficiently final to warrant issue preclusion).
discussed
Cited as authority (rule)
Zapata v. HSBC Holdings plc, a United Kingdom corporation
(2×)
As set forth above, when determining whether to accord interlocutory orders preclusive effect, courts are instructed to consider broad factors such as “the nature of the decision (i.e., that it was not avowedly tentative), the adequacy of the hearing, and the opportunity for review.” Lummus, 297 F.2d at 89.
discussed
Cited as authority (rule)
Bates v. Simpson
Co., 297 F.2d 80, 89 (2d Cir. 1961 )); Zdanok, 327 F.2d at 955 (same), or on whether the ruling prior to final judgment was “necessarily based upon a determination that constitutes an insuperable obstacle to the plaintiff's success on the merits,” see John Morrell & Co., 913 F.2d at 563 -64 (quoting Miller Brewing Co. v. Jos.
discussed
Cited as authority (rule)
United States v. Walker
Co., 297 F.2d 80, 89 (2d Cir.1961), it has been settled that a judgment that is not ‘final’ in the sense of 28 U.S.C. § 1291 can nonetheless be considered ‘final’ in the sense of precluding further litigation of issues that were actually determined in such a judgment.” See TM Patents, L.P. v. IBM Corp., 72 F.Supp.2d 370, 375-76 (S.D.N.Y. 1999).
discussed
Cited as authority (rule)
Blue Dog at 399 Inc. v. BP 399 Park Avenue LLC (In re Blue Dog at 399 Inc.)
(Mar. 3 Hearing, at 7:19-7:20.) It is true that “in limited situations, a decision on a motion for preliminary injunction may be deemed sufficiently final to have preclusive effect depending ‘upon such factors as the nature of the decision (i.e., that it was not avowedly tentative), the adequacy of the hearing, and the opportunity for review.’ ” Id. (citing Lu mmus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961); Don King Prods., Inc. v. Douglas, 142, F.Supp. 741, 754-55 (S.D.N.Y.1990), on reargument, 742 F.Supp. 786 (S.D.N.Y.1990)).
discussed
Cited as authority (rule)
Alzheimer's Institute of America v. Eli Lilly & Co.
(2×)
also: Cited "see, e.g."
Rather, “the proper query ... is whether the court’s decision on the issue as to which preclusion is sought is final.” Id. (emphasis in original) (citing Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961) (Friendly, J.)).
discussed
Cited as authority (rule)
Feng Li v. Peng ex rel. Estate of Peng
Finality "may mean little more than that the litigation of a particular issue has reached such a stage that a> court sees no really good reason for permitting it to be litigated again.” Id. at 412 n. 8 (quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961), cert. denied, 368 U.S. 986 , 82 S.Ct. 601 , 7 L.Ed.2d 524 (1962)).
cited
Cited as authority (rule)
Wills v. Radioshack Corp.
Co., 297 F.2d 80, 89 (2d Cir.1961), cert. denied, 368 U.S. 986 , 82 S.Ct. 601 , 7 L.Ed.2d 524 (1962)).
examined
Cited as authority (rule)
Fresenius USA, Inc. v. Baxter International, Inc.
(3×)
also: Cited "see"
Co., 297 F.2d 80, 89 (2d Cir.1961)).
discussed
Cited as authority (rule)
Fresenius USA, Inc. v. Baxter International, Inc.
(2×)
Id. at 822–23 (quoting Lummus Co., 297 F.2d at 89).
discussed
Cited as authority (rule)
Jose J. Loera, Jr. v. United States
The doctrine of collateral estop-pel, an offshoot of res judicata, teaches that a judge’s ruling on an issue of law or fact in one proceeding binds in a subsequent proceeding the party against whom the judge had ruled, provided that the ruling could have been (or was, but unsuccessfully) challenged on appeal, or if not that at least it was solid, reliable, and final rather than “intended to be tentative.” Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961).
discussed
Cited as authority (rule)
Iowa Supreme Court Attorney Disciplinary Board v. Richard Scott Rhinehart
Co., 297 F.2d 80, 89 (2d Cir.1961); see also Robinette v. Jones, 476 F.3d 585, 589-90 (8th Cir.2007) (holding interlocutory ruling on contested immunity defense in prior action voluntarily dismissed by plaintiff precluded relitigation of same issue in subsequent action). “[T]he finality requirement for issue preclusion has become less rigorous.” Robinette, 476 F.3d at 589 (citing cases applying issue preclusion “to matters resolved by preliminary rulings”).
discussed
Cited as authority (rule)
Bryan v. State Farm Mutual Automobile Insurance
Judge Friendly, writing for the court, said: ‘Whether a judgment, not ‘final’ in the sense of 28 U.S.C. § 1291 [for purposes of appeal], ought nevertheless be considered ‘final’ in the sense of precluding further litigation of the same issue, turns upon such factors as the nature of the decision (i.e., that it was not avowedly tentative), the adequacy of the hearing, and the opportunity for review. ‘Finality’ in the context here relevant may mean little more than that the litigation of a particular issue has reached *595 such a stage that a court sees no really good reason for p…
examined
Cited as authority (rule)
Clark v. Zwanziger (In Re Zwanziger)
(4×)
Co., Inc., 297 F.2d 80, 89 (2d Cir. 1962)). [33] Zdanok v. Glidden Co., 327 F.2d 944, 955 (2d Cir. 1964) (internal quotation marks omitted). [34] See Stone v. Williams, 970 F.2d 1043, 1055-56 (2d Cir.1992) (state supreme court decision final for preclusion purposes on issue of paternity even though case was remanded to the state trial court for further proceedings); Zdanok, 327 F.2d at 955 (appellate decision has preclusive effect in later federal action on certain issues of liability even though appellate decision remanded case for further proceedings); GAF Corp. v. Eastman Kodak Co., 519 F.S…
discussed
Cited as authority (rule)
United States v. Kashamu
In Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961) (Friendly, J.), we read that “whether a judgment, not ‘final’ in the sense of 28 U.S.C. § 1291 , ought nevertheless be considered ‘final’ in the sense of precluding further litigation of the same issue, turns upon such factors as the nature of the decision (i.e., that it was not avowedly tentative), the adequacy of the hearing, and the opportunity for review. ‘Finality’ in the context here relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court…
cited
Cited as authority (rule)
AEY, Inc. v. United States
Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961), cert. denied, 368 U.S. 986 , 82 S.Ct. 601 , 7 L.Ed.2d 524 (1962).
discussed
Cited as authority (rule)
Indagro S.A. v. Bauche S.A.
A decision is sufficiently final for issue preclusion purposes where litigation of the issue in the first case “reached such a stage that a court sees no really good reason for permitting it to be litigated again.” Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961) (Friendly, J.).
discussed
Cited as authority (rule)
Algonquin Power Income Fund v. CHRISTINE FALLS OF NEW YORK, INC.
(2×)
also: Cited "see"
Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961).
discussed
Cited as authority (rule)
Doyle v. Smith
Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961) cert. den., 368 U.S. 986 , 82 S.Ct. 601 , 7 L.Ed.2d 524 (whether a judgment, not "final," within meaning of a statute pertaining to appeals from final decisions of district courts, ought nevertheless be considered "final," in the sense of precluding further litigation of the same issue, is dependent upon such factors as nature of the decision, adequacy of the hearing, and opportunity for review.) " 'Finality'... may mean little 'more than that the litigation of a particular issue has reached such a stage that a court se…
cited
Cited as authority (rule)
Rambus Inc. v. Hynix Semiconductor Inc.
Co., 297 F.2d 80, 89 (2d Cir.1961)).
discussed
Cited as authority (rule)
Christine Falls of New York, Inc. v. Algonquin Power Corp. (In Re Franklin Industrial Complex, Inc.)
Co., 297 F.2d 80, 89 (2d Cir.1961), Defendants contend that 1) Judge McCurn conducted no eviden-tiary hearings; 2) there was no trial on the merits; 3) evidence submitted was based on affidavits of attorneys lacking personal knowledge; and 4) the decision was not upheld on appeal.
cited
Cited as authority (rule)
Asahi Glass Co. v. Toledo Engineering Co.
Co., 297 F.2d 80, 89 (2d Cir.1961).
discussed
Cited as authority (rule)
Ann Robinette Eric Robinette v. William Jones Richard Fentiman Tim Gassen Joshua Landis Merritt M. Beck, III City of Centralia, Missouri
Co., 297 F.2d 80, 89 (2d Cir.1961)) (internal alteration omitted). 4 In Robinette I, the district court had thoroughly analyzed and decided Beck’s immunities on all claims, the immunities of the police officers in their official capacities on all claims, and Centralia’s sovereign immunity from the state tort claims.
discussed
Cited as authority (rule)
Bess v. Spitzer
See NLRB, 171 F.3d at 109 ; see also Winters v. Lavine, 574 F.2d 46, 66-67 (2d Cir.1978) *201 (holding that alternative grounds for determination supported application of collateral estoppel); Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961) (Friendly, J.) (“‘Finality’ in the [preclusion] context ... may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.”).
discussed
Cited as authority (rule)
Rabbi Jacob Joseph School v. Province of Mendoza
Co., 297 F.2d 80, 89 (2d Cir.1961), cert. denied, 368 U.S. 986 , 82 S.Ct. 601 , 7 L.Ed.2d 524 (1962) (whether a judgment that was nonfinal under 28 U.S.C. § 1291 might nonetheless be considered final for purposes of preclusion "turns upon such factors as the nature of the decision (i.e., that it was not avowedly tentative), the adequacy of the hearing, and the opportunity for review”). 3 . 28 U.S.C. § 1447 (c) states that a "motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of remov…
discussed
Cited as authority (rule)
AM General Corp. v. DaimlerChrysler Corp.
Commodity Futures Trading Comm’n v. Board of Trade, 701 F.2d 653, 657-658 (7th Cir.1983) (recognizing that findings made during a preliminary injunction hearing could be given preclusive effect) (citing Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2nd Cir.1961)).
discussed
Cited as authority (rule)
Sentinel Trust Company v. Universal Bonding Insurance Company
Oil & Refining Co., 297 F.2d 80, 87 (2d Cir.1961); In re Brown, 951 F.2d at 569 . 55 In Employees Own Fed. v. City of Defiance, 752 F.2d 243 (6th Cir.1985), a state trial court entered findings of fact and conclusions of law adverse to the plaintiff Credit Union, but allowed it to file an amended complaint within 20 days.
cited
Cited as authority (rule)
Sentinel Trust Co. v. Universal Bonding Insurance
Oil & Refining Co., 297 F.2d 80, 87 (2d Cir.1961); In re Brown, 951 F.2d at 569 .
discussed
Cited as authority (rule)
Seminole Nation of Oklahoma v. Norton
However, "[wjhether a judgment, not final in the sense of 28 U.S.C. § 1291 ought nevertheless be considered 'final' in the sense of precluding further litigation of the same issue, turns upon such factors as the nature of the decision ..., the adequacy of the hearing, and the opportunity for review.” Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961), ce rt. denied 368 U.S. 986 , 82 S.Ct. 601 , 7 L.Ed.2d 524 (1962).
cited
Cited as authority (rule)
Wininger v. SI Management L.P.
Co., 297 F.2d 80, 89-90 (2d Cir.1961).
discussed
Cited as authority (rule)
Patricia Siemer v. Donald Nangle
This may mean " 'little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.' " John Morrell, 913 F.2d at 563 (quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961), cert. denied, 368 U.S. 986 (1962)).
discussed
Cited as authority (rule)
In Re: Donald Nangle, Debtor, Patricia A. Siemer v. Donald Nangle
This may mean “ ‘little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.’ ” John Morrell, 913 F.2d at 563 (quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961), cert. denied, 368 U.S. 986 , 82 S.Ct. 601 , 7 L.Ed.2d 524 (1962)).
discussed
Cited as authority (rule)
Henglein v. Colt Industries Operating Corp.
We quoted approvingly from Judge Friendly’s opinion in Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.1961): “ ‘Finality’ in the context here relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.” Id. at 412 n. 8.
discussed
Cited as authority (rule)
Horsehead v. Paramont Comm Inc
"Finality" in the context her e relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again. 297 F.2d at 89 (internal citations omitted); accord, Sherman v. Jacobson, 247 F. Supp. 261, 268 (S.D.N.Y. 1965) (" `final' in the res judicata or collateral estoppel sense is not identical to `final' in the rule governing the jurisdiction of appellate courts").
discussed
Cited as authority (rule)
Horsehead Industries, Inc. v. Paramount Communications, Inc.
“Finality” in the context here relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again. 297 F.2d at 89 (internal citations omitted); accord, Sherman v. Jacobson, 247 F.Supp. 261, 268 (S.D.N.Y.1965) (“ ‘final’ in the res judicata or collateral estoppel sense is not identical to ‘final’ in the rule governing the jurisdiction of appellate courts”).
cited
Cited as authority (rule)
Kollmorgen Corp. v. Yaskawa Electric Corp.
Co., 297 F.2d 80, 89 (2d Cir.1961).
cited
Cited as authority (rule)
Lewis v. Rosenfeld
Co., 297 F.2d 80, 89 (2d Cir.1961) (stating that a decision may be “final” in the context of issue preclusion even though it is not yet “final” for purposes of appeal under 28 U.S.C. § 1291 ).
discussed
Cited as authority (rule)
Lewis v. Rosenfeld
(2×)
also: Cited "see"
Co., 297 F.2d 80, 89 (2d Cir.1961) (citation omitted); see also Restatement (Second) of Judgments § 13 cmt. b (1982) (“The fact that h judgment is treated as final for purposes of res judicata does not necessarily mean that it is final for other purposes, for example, priority among lienors on property.”).
cited
Cited as authority (rule)
Tracar, S.A. v. Silverman (In re American Preferred Prescription, Inc.)
Co., 297 F.2d 80, 89 (2d Cir.1961), Judge Friendly noted that a judgment that is not final for appellate purposes may nonetheless be considered final in the sense of precluding further litigation.
Retrieving the full opinion text from the archive…
Aaron Bruce GREGORY, Appellant,
v.
UNITED STATES Government, Appellee
v.
UNITED STATES Government, Appellee
6830.
Court of Appeals for the Tenth Circuit.
Nov 30, 1961.
297 F.2d 80
No appearance for appellant., Benjamin E. Franklin, Asst. U. S. Atty., Topeka, Kan. (Newell A. George, U. S. Atty., Kansas City, Kan., on the brief), for appellee.
Pickett, Hill, Christenson.
Cited by 17 opinions | Published
PER CURIAM.
This is an appeal from an order denying appellant permission to proceed in forma pauperis in an action wherein he seeks to restrain the aggregation of separate criminal sentences which were to be served consecutively.
On July 1, 1955, appellant was sentenced by the United States District Court for the Northern District of Oklahoma to serve concurrently sentences of five years and two years for violations of the Dyer Act, 18 U.S.C.A. § 2311 et seq. On September 27, 1955, the United States District Court for the Northern District of Texas sentenced Gregory to a term of two years for violation of the Federal Escape Act, 18 U.S.C.A. § 751, to be served consecutively with the sentences he was then serving. Upon delivery to the United States Penitentiary at Leavenworth, Kansas, his consecutive sentences, totaling seven years, were aggregated for the purpose of computing good time deductions. There is no merit to the contention that such aggregation of the sentences was illegal. 18 U.S.C.A. § 4161. Gibson v. Looney, 10 Cir., 258 F.2d 879; Hurst v. Zarter, 10 Cir., 195 F.2d 526; United States ex rel. Johnson v. O’Donovan, 7 Cir., 178 F.2d 810; Grant v. Hunter, 10 Cir., 166 F.2d 673.
Affirmed.