Kelly v. Merrill Lynch, 985 F.2d 1067 (11th Cir. 1993). · Go Syfert
Kelly v. Merrill Lynch, 985 F.2d 1067 (11th Cir. 1993). Cases Citing This Book View Copy Cite
“he issue is not just one of preventing the piecemeal litigation that occurs when parties simulta 1108 neously assert claims in several forums, but of protecting prior judgments.”
101 citation events (49 in the last 25 years) across 28 distinct courts.
Strongest positive: California v. Randtron (caed, 1999-10-12)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 47 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) California v. Randtron (2×) also: Cited as authority (rule)
E.D. Cal. · 1999 · signal: see also · quote attribution · 1 verbatim quote · confidence high
a party can waive res judicata by consenting to split the claim into two suits.
examined Cited as authority (quoted) Klay v. United Healthgroup, Inc. (3×) also: Cited as authority (rule), Cited "see, e.g."
11th Cir. · 2004 · quote attribution · 1 verbatim quote · confidence low
he issue is not just one of preventing the piecemeal litigation that occurs when parties simulta 1108 neously assert claims in several forums, but of protecting prior judgments.
cited Cited as authority (rule) Branum v. Midland Credit Management, Inc.
E.D. Mo. · 2022 · confidence medium
Litig., 38 F.3d 380, 382 (8th Cir.1994); Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993); Miller Brewing Co. v. Fort Worth Distrib.
discussed Cited as authority (rule) Credit Suisse AG v. Graham
S.D.N.Y. · 2021 · confidence medium
Litig., 672 F.3d 113 , 141 n.20 (2d Cir. 2011) (leaving open the question whether the All Writs Act might give a district court “the authority to enjoin arbitration to prevent re-litigation.”) (quoting Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir. 1993)). collateral attack doctrine “is not a question or arbitrability, but is a legal question to be determined by the court.” Oppenheimer & Co v. Pitch, 15 N.Y.S.3d 307, 308 (1st Dep’t 2015).
discussed Cited as authority (rule) Nicole Slone v. J. Michael White
11th Cir. · 2020 · signal: cf. · confidence medium
Cf. Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir. 1993) (holding that the district court properly refused to compel arbitration of claims that were barred by res judicata).
discussed Cited as authority (rule) Camper v. Lyft Tennessee, Inc.
M.D. Tenn. · 2019 · confidence medium
In this regard, Lyft misplaces reliance on Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir. 1993) for the proposition that the All Writs Act gives authority to the court to enjoin arbitration to prevent re-litigation of maters already addressed, and Sheldon Co. Profit Sharing Plan and Trust v. Smith, 858 F. Supp. 663, 667 (W.D.
discussed Cited as authority (rule) Allstate Insurance v. Elzanaty
E.D.N.Y · 2013 · confidence medium
We thus do not decide whether the dictates of the All Writs Act might, in another case without the type of jurisdictional retention present here, give a district court “the authority to enjoin arbitration to prevent re-litigation, ” Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993), rev’d in part on other grounds by Howsam [v. Dean Witter Reynolds, Inc.], 537 U.S. 79 , 123 S.Ct. 588 [ 154 L.Ed.2d 491 (2002) ].
discussed Cited as authority (rule) Ameriprise Financial Services, Inc. v. Beland
2d Cir. · 2011 · confidence medium
We thus do not decide whether the dictates of the All Writs Act might, in another case without the type of jurisdictional retention present here, give a district court "the authority to enjoin arbitration to prevent re-litigation,” Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir. 1993), rev’d in part on other grounds by Howsam, 537 U.S. 79 , 123 S.Ct. 588 .
cited Cited as authority (rule) Hafer v. VANDERBILT MORTG. AND FINANCE, INC.
S.D. Tex. · 2011 · confidence medium
Litigation, 38 F.3d 380, 383 (8th Cir.1994); Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993); Miller Brewing Co. v. Fort Worth Distrib.
discussed Cited as authority (rule) Wms, Inc. v. Alltel Corp.
N.C. Ct. App. · 2007 · confidence medium
Ed. 2d 565 (1993), in which the Eleventh Circuit rejected the contention that res judicata was an issue to be decided by the arbitrators, and instead held that “the better rule is that courts can decide res judicata.” Kelly, 985 F.2d at 1069.
cited Cited as authority (rule) Collins v. D.R. Horton, Inc.
D. Ariz. · 2003 · confidence medium
Litigation, 38 F.3d 380, 383 (8th Cir.1994); Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993); Miller Brewing Co. v. Fort Worth Distrib.
discussed Cited as authority (rule) In re American Honda Lit v.
4th Cir. · 2003 · confidence medium
Hence, we have recognized that "[t]he All Writs Act empowers a federal court to enjoin parties before it from attempting to relitigate decided issues and to prevent collateral attack of its judgments." Farmers Bank v. Kittay (In re March), 988 F.2d 498, 500 (4th Cir. 1993); see also Henson v. Ciba-Geigy Corp., 261 F.3d 1065 , 1068 (11th Cir. 2001) ("[A] district court has the authority . . . to enjoin a party to litigation before it from prosecuting an action in contravention of a settlement agreement over which the district court has retained jurisdiction."), aff'd sub nom., Syngenta Crop Pro…
discussed Cited as authority (rule) Miller v. Brooks
4th Cir. · 2003 · confidence medium
Hence, we have recognized that “[t]he All Writs Act empowers a federal court to enjoin parties before it from attempting to reliti-gate decided issues and to prevent collateral attack of its judgments.” Farmers Bank v. Kittay (In re March), 988 F.2d 498, 500 (4th Cir.1993); see also Henson v. Ciba-Geigy Corp., 261 F.3d 1065 , 1068 (11th Cir.2001) (“[A] district court has the authority ... to enjoin a party to litigation before it from prosecuting an action in contravention of a settlement agreement over which the district court has retained jurisdiction”), aff'd sub nom., Syngenta Crop…
discussed Cited as authority (rule) Demint v. Nationsbank Corp.
M.D. Fla. · 2002 · confidence medium
See also Henson v. Ciba-Geigy Corp., 261 F.3d 1065 , 1068 (11th Cir.2001) ("[A] district court has the authority ... to enjoin a party to litigation before it from prosecuting an action in contravention of a settlement agreement over which the district court has retained jurisdiction."); Wesch v. Folsom, 6 F.3d 1465, 1470 (11th Cir.1993) (noting that the All-Writs Act, 28 U.S.C. § 1651 , "empowers federal courts to issue injunctions to protect or effectuate their judgments.”); Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993) ("The All-Writs Act ... g…
discussed Cited as authority (rule) Sunbelt Cranes Construction & Hauling, Inc. v. Gulf Coast Erectors, Inc.
M.D. Fla. · 2002 · confidence medium
See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 , 101 S.Ct. 2424 , 69 L.Ed.2d 103 (1981); Kelly v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 985 F.2d 1067, 1070 (11th Cir.1993); Foxx, 46 F.Supp.2d at 1273 .
discussed Cited as authority (rule) Henson v. Ciba-Geigy Corporation
11th Cir. · 2001 · confidence medium
Litig., 103 F.3d 1317 , 1324 (7th Cir. 1996); White v. Nat’l Football League, 41 F.3d 402 , 409 (9th Cir. 1994); Wesch v. Folsom, 6 F.3d 1465, 1470 (11th Cir. 1993); Kelly v. Merrill Lynch, Pierce, Fenner & Smith, 985 F.2d 1067, 1069 (11th Cir. 1993).
discussed Cited as authority (rule) Henson v. Ciba-Geigy Corporation
11th Cir. · 2001 · confidence medium
Litig., 103 F.3d 1317 , 1324 (7th Cir.1996); White v. Nat’l Football League, 41 F.3d 402, 409 (9th Cir.1994); Wesch v. Folsom, 6 F.3d 1465, 1470 (11th Cir.1993); Kelly v. Merrill Lynch, Pierce, Fenner & Smith, 985 F.2d 1067, 1069 (11th Cir.1993).
discussed Cited as authority (rule) Gibbs v. Republic Tobacco, L.P.
M.D. Fla. · 2000 · confidence medium
See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 , 101 S.Ct. 2424 , 69 L.Ed.2d 103 (1981); Kelly v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 985 F.2d 1067, 1070 (11th Cir.1993); Foxx v. Dalton, 46 F.Supp.2d 1268, 1273 (M.D.Fla.1999).
cited Cited as authority (rule) Foxx v. Dalton
M.D. Fla. · 1999 · confidence medium
Stores v. Moitie, 452 U.S. 394, 398 , 101 S.Ct. 2424 , 69 L.Ed.2d 103 (1981); Kelly v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 985 F.2d 1067, 1070 (11th Cir.1993).
cited Cited as authority (rule) Weaver v. Florida Power & Light Co.
11th Cir. · 1999 · confidence medium
We upheld an injunction of an arbitration on res judicata grounds in Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993).
discussed Cited as authority (rule) John Hancock Mutual Life Insurance Company John Hancock Distr Larry Carter v. Thomas W. Olick (2×) also: Cited "see"
3rd Cir. · 1998 · confidence medium
Litig., 38 F.3d 380, 382 (8th Cir.1994); Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993); Miller Brewing Co. v. Fort Worth Distrib.
discussed Cited as authority (rule) John Hancock Insur. Co. v. Olick (2×) also: Cited "see"
3rd Cir. · 1998 · confidence medium
Litig., 38 F.3d 380, 382 (8th Cir. 1994); Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir. 1993); Miller Brewing Co. v. Forth Worth Distrib.
cited Cited as authority (rule) Weaver v. Florida Power & Light Co.
S.D. Fla. · 1997 · confidence medium
Kelly v. Merrill Lynch, 985 F.2d at 1069.
discussed Cited as authority (rule) Westmoreland Capital Corp. v. Findlay
W.D.N.Y. · 1996 · confidence medium
Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1068-69 (11th Cir.1993) (holding that the district court had the authority to enjoin arbitration); Tai Ping Insurance Co. v. M/V Warschau, 731 F.2d 1141, 1144 (5th Cir.1984) (same); L.F.
cited Cited as authority (rule) Wolf v. Gruntal & Co.
1st Cir. · 1995 · confidence medium
Gruntal cites Kelly v. Merrill Lynch, Pierce, Fenner & Smith, 985 F.2d 1067, 1069-70 (11th Cir.), cert. denied, 114 S. Ct 600 (1993), to no avail.
cited Cited as authority (rule) In Re Y & A Group Securities Litigation
8th Cir. · 1994 · confidence medium
See John Morrell, 913 F.2d at 559-64; Kelly, 985 F.2d at 1069; Miller Brewing, 781 F.2d at 496, 501 .
cited Cited as authority (rule) Ewart v. Y & A Group, Inc.
8th Cir. · 1994 · confidence medium
See John Morrell, 913 F.2d at 559-64; Kelly, 985 F.2d at 1069; Miller Brewing, 781 F.2d at 496, 501 .
discussed Cited "see" California v. Randtron
9th Cir. · 2002 · signal: see · confidence high
See Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993) (citing RESTATEMENT (SECOND) OF JUDGMENTS § 26 cmt. a.) (“A party can waive res judicata by consenting to split the claim into two suits.”); see also United States ex rel.
discussed Cited "see" People of the State of California City of Lodi v. Randtron, a Dissolved California Corporation, People of the State of California City of Lodi, and American Stores Properties, Inc. Lucky Stores, Inc. Holz Rubber Company, Inc., Intervenors-Appellees v. Randtron, a Dissolved California Corporation, and Oldco Holz, a Suspended Bankrupt and Defunct California Corporation
9th Cir. · 2002 · signal: see · confidence high
See Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir. 1993) (citing RESTATEMENT (SECOND) OF JUDGMENTS &#167 26 cmt. a.) ("A party can waive res judicata by consenting to split the claim into two suits."); see also United States ex rel.
discussed Cited "see" People of the State of California City of Lodi v. Randtron, a Dissolved California Corporation, People of the State of California City of Lodi, and American Stores Properties, Inc. Lucky Stores, Inc. Holz Rubber Company, Inc., Intervenors-Appellees v. Randtron, a Dissolved California Corporation, and Oldco Holz, a Suspended Bankrupt and Defunct California Corporation
9th Cir. · 2002 · signal: see · confidence high
See Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993) (citing RESTATEMENT (SECOND) OF JUDGMENTS § 26 cmt. a.) ("A party can waive res judicata by consenting to split the claim into two suits."); see also United States ex rel.
discussed Cited "see" California v. Randtron
9th Cir. · 2001 · signal: see · confidence high
See Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993) (citing Restatement (Second) Op Judgments § 26 cmt. a.) (“A party can waive res judicata by consenting to split the claim into two suits.”); see also United States ex rel.
cited Cited "see" Fabricant v. Roebuck
S.D. Fla. · 2001 · signal: see · confidence high
See Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1070 (11th Cir.1993) (applying Restatement (Second) of Judgments § 26). .
discussed Cited "see" In Re: Cendant Corp (2×)
3rd Cir. · 2001 · signal: see · confidence high
See Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1068-69 (11th Cir. 1993).
discussed Cited "see" Weaver v. Florida Power & Light Co.
11th Cir. · 1999 · signal: see · confidence high
See Montes v. Shearson Lehman Bros., Inc., 128 F.3d 1456, 1461 (11th Cir. 1997). 6 Having concluded that FPL has an adequate remedy at law, we must also conclude that the district court abused its discretion in granting its motion for injunctive relief.10 The district court’s order granting the motion is therefore REVERSED. 10 We upheld an injunction of an arbitration on res judicata grounds in Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir. 1993).
discussed Cited "see" Industrial Risk Insurers, Barnard & Burk Group, Inc., Barnard and Burk Engineers and Constructors, Inc., Isi, Inc., American Home Assurance Co., Defendants-Third-Party v. M.A.N. Gutehoffnungshutte Gmbh, Third-Party-Defendant-Appellee-Cross-Appellant. Holland & Knight, Mark E. Grantham v. Industrial Risk Insurers, Barnard & Burk Group, Inc., Barnard and Burk Engineers and Constructors, Inc., Isi, Inc., American Home Assurance Co., Defendants-Third-Party
3rd Cir. · 1998 · signal: see · confidence high
See Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1068-69 (11th Cir.1993) (holding that federal courts have power to enjoin arbitration of state common law claims in cases in federal court); see also Societe Generale de Surveillance, S.A. v. Raytheon European Management and Sys.
discussed Cited "see" Nitram, Inc. v. Industrial Risk
11th Cir. · 1998 · signal: see · confidence high
See Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1068-69 (11th Cir. 1993) (holding that federal courts have power to enjoin arbitration of state common law claims in cases in federal court); see also Societe Generale de Surveillance, S.A. v. Raytheon European Management and Sys.
discussed Cited "see" Industrial Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH
11th Cir. · 1998 · signal: see · confidence high
See Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1068-69 (11th Cir. 1993) (holding that federal courts have power to enjoin arbitration of state common law claims in cases in federal court); see also Societe Generate de Surveillance, S.A. v. Raytheon European Management and Sys.
discussed Cited "see" Puerto Rico Maritime Shipping Authority v. Federal Maritime Commission
1st Cir. · 1996 · signal: accord · confidence high
We do not enter the fray, as do the parties, for under the principle of claim preclusion, “ ‘a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.’ ” Manego v. Orleans Bd. of Trade, 773 F.2d 1, 5 (1st Cir.1985) (quoting Allen v. McCurry, 449 U.S. 90, 94 , 101 S.Ct. 411, 415 , 66 L.Ed.2d 308 (1980) (emphasis supplied)), cert. denied, 475 U.S. 1084 , 106 S.Ct. 1466 , 89 L.Ed.2d 722 (1986); accord Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1070 (11th Cir.), c…
discussed Cited "see" Puerto Rico Maritime v. Federal Maritime Com
1st Cir. · 1996 · signal: accord · confidence high
We do not enter the fray, as do the parties, for under the principle of claim preclusion, "'a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised ______________________ -8- 8 in that action.'" Manego v. Orleans Bd. of Trade, 773 F.2d ______ ____________________ 1, 5 (1st Cir. 1985) (quoting Allen v. McCurry, 449 U.S. 90 , _____ _______ 94 (1980) (emphasis supplied)), cert. denied, 475 U.S. 1084 _____ ______ (1986); accord Kelly v. Merrill Lynch, Pierce, Fenner & ______ _____ ______________________________…
discussed Cited "see" Hall v. Burger King Corp.
S.D. Fla. · 1995 · signal: see · confidence high
Here, even a cursory review of the pleadings in this and the Atlanta actions reveals that Agad and Balagamwala’s claims are not only identical in name, but in substance. 38 Notably, plaintiffs’ counsel acknowledged at oral argument before this Court on April 10, 1995 that the claims in both actions are substantially identical. 39 Moreover, “it is black-letter law that res judicata ... bars all claims that were or could have been advanced in support of the cause of action on the occasion of its former adjudication [citations omitted], not merely those that were adjudicated.” Nilsen v. C…
cited Cited "see" Wesch v. Folsom
11th Cir. · 1993 · signal: see · confidence high
See Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993); Kinnear-Weed Corp. v. Humble Oil & Ref.
cited Cited "see" Wesch v. Folsom
11th Cir. · 1993 · signal: see · confidence high
See Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir.1993); Kinnear-Weed Corp. v. Humble Oil & Ref.
cited Cited "see, e.g." Constellium Rolled Products v. United Steel, Paper and Forest
4th Cir. · 2021 · signal: see also · confidence medium
Litig., 38 F.3d 380, 382 (8th Cir. 1994); see also, e.g., Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir. 1993); Miller Brewing Co. v. Fort Worth Distrib.
discussed Cited "see, e.g." in Re W. Dow Hamm, III Corporation and W. Dow Hamm, III
Tex. App. · 2007 · signal: compare · confidence low
Compare Wong at 72-79 (recognizing prior-court-judgment exception and arguing why exception makes sense) with Klay , 376 F.3d at 1101 (recognizing, on basis of Howsam , abrogation of pre- Howsam authority of Kelly v. Merrill Lynch, Pierce, Fenner & Smith , 985 F.2d 1067 (11th Cir. 1993), in which Eleventh Circuit Court of Appeals had applied prior-court-judgment exception). 12.
discussed Cited "see, e.g." W. Dow Hamm III Corp. v. Millennium Income Fund, L.L.C.
Tex. App. · 2007 · signal: compare · confidence low
Compare Wong at 72-79 (recognizing prior-court-judgment exception and arguing why exception makes sense) with Klay, 376 F.3d at 1101 (recognizing, on basis of Howsam, abrogation of pre-Howsam authority of Kelly v. Merrill Lynch, Pierce, Fenner & Smith, 985 F.2d 1067 (11th Cir.1993), in which Eleventh Circuit Court of Appeals had applied prior-court-judgment exception). 12 .
cited Cited "see, e.g." Bill Greever Corp. v. Tazewell National Bank
Va. · 1998 · signal: see also · confidence medium
See also Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069-70 (11th Cir. 1993).
discussed Cited "see, e.g." Stulberg v. Intermedics Orthopedics, Inc.
N.D. Ill. · 1998 · signal: see, e.g. · confidence medium
See, e.g., Kelly v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1068 (11th Cir.1993) (plaintiffs initiated arbitration proceedings after district court granted summary judgment); Miller Brewing Co. v. Fort *1069 Worth Distrib.
Retrieving the full opinion text from the archive…
Fed. Sec. L. Rep. P 97,443 Frank Kelly, Maria Kelly, Juan Antonio Brando, Berta Laserna, Rafael David Poleo Isava, Ellio Ciocca, Daniel Prado Flores, Max Gomez, William MacKay Antonia MacKay Gonzalo Barquero, Abraham Stefan, Osvaldo Cordova, Rudy Zepeda, Thomas Bovee, Ricardo Sucre and Agropecuaria Millon, C.A.
v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., a Delaware Corporation
91-5927.
Court of Appeals for the Eleventh Circuit.
Mar 15, 1993.
985 F.2d 1067

985 F.2d 1067

Fed. Sec. L. Rep. P 97,443
Frank KELLY, Maria Kelly, Juan Antonio Brando, Berta
Laserna, Rafael David Poleo Isava, Ellio Ciocca, Daniel
Prado Flores, Max Gomez, William Mackay, Antonia Mackay,
Gonzalo Barquero, Abraham Stefan, Osvaldo Cordova, Rudy
Zepeda, Thomas Bovee, Ricardo Sucre and Agropecuaria Millon,
C.A., Plaintiffs-Appellants,
v.
MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., a Delaware
Corporation, Defendant-Appellee.

Nos. 91-5927, 91-6085.

United States Court of Appeals, Eleventh Circuit.

March 15, 1993.

Thomas H. Seymour, Harry R. Schafer, Scott E. Perwin, Kenny, Nachwalter, Seymour, Arnold & Critchlow, P.A., Miami, FL, for plaintiffs-appellants.

Bennett Falk, Peter Buscemi, Morgan, Lewis & Bockius, Miami, FL, for defendant-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, DYER, Senior Circuit Judge.

PER CURIAM:

[*~1067]1

This case asks whether the district court properly enjoined arbitration proceedings on the basis of res judicata. We affirm.

2

Plaintiffs had accounts with defendant Merrill Lynch. In 1987, plaintiffs filed a complaint based on SEC Rules 10b-5 and 10b-16 in district court.[1] After about two years of discovery, plaintiffs dismissed the 10b-16 claim. The court ultimately granted summary judgment to defendant on the remaining Rule 10b-5 claim. We affirmed. Kelly v. Merrill Lynch, 948 F.2d 1297 (1991).

3

Shortly after the district court granted defendant summary judgment, plaintiffs started arbitration of four state common law claims. The state claims alleged essentially the same conduct as the earlier litigation. Defendant moved the district court for a preliminary injunction against the arbitration. Plaintiffs' response included a motion to compel arbitration.

4

The district court granted the injunction. The district court concluded that 28 U.S.C. § 2283 gives federal courts the power to issue injunctions to protect their own judgments and that res judicata barred the arbitration claim.

I.

5

We must first decide whether the district court had the power to enjoin arbitration at all. The Anti-Injunction Act, 28 U.S.C. § 2283, says that federal courts can only enjoin state court proceedings in certain cases, including where necessary to protect federal court judgments. Citing this provision, plaintiffs argue federal courts cannot enjoin arbitration because arbitration is not a state court proceeding. Cf. McDonald v. West Branch, 466 U.S. 284, 287-88, 104 S.Ct. 1799, 1801-02, 80 L.Ed.2d 302 (1984) (arbitration is not a state court proceeding under 28 U.S.C. § 1738).

6

The All-Writs Act, 28 U.S.C. § 1651, gives federal courts broad injunctive powers to protect their own judgments. See, e.g., Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 637 (5th Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 255 (1971); Gregis v. Edberg, 645 F.Supp. 1153, 1157 (W.D.Pa.1986), aff'd, 826 F.2d 1054 (3d Cir.1987). This power includes the authority to enjoin arbitration to prevent re-litigation. See Tai Ping Insurance Co. v. M/V Warschau, 731 F.2d 1141, 1144 (5th Cir.1984); Miller Brewing Co. v. Fort Worth Distr. Co., 781 F.2d 494 (5th Cir.1986). We think the Anti-Injunction Act merely carves out an exception to the courts' broad injunctive powers, rather than authorizing an exclusive class of injunctions. The district court had the power to enter an injunction.

II.

7

The next question is whether the district court properly resolved the res judicata defense, rather than leaving the issue for the arbitrators to resolve. The Federal Arbitration Act, 9 U.S.C. § 2, expresses a policy in favor of arbitration. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). Thus, the general rule for deciding which questions belong to the courts is that, while federal courts can decide if an issue is arbitrable or not, they cannot reach the merits of arbitrable issues. E.g., Dean Witter Reynolds v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 1241, 84 L.Ed.2d 158 (1985); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402-04, 87 S.Ct. 1801, 1805-06, 18 L.Ed.2d 1270 (1967). And doubts should be resolved in favor of arbitration, even if the result is piecemeal litigation. See Moses H. Cone, 460 U.S. at 20, 103 S.Ct. at 939; Byrd, 470 U.S. at 218-21, 105 S.Ct. at 1241-43.

[*~1067]8

Plaintiffs argue that res judicata must be left to arbitration because it is an affirmative defense that goes to the merits of their claims. See Enterprise Ass'n v. Empire Mech., Inc., 1992 WL 84689 * 2 (S.D.N.Y. April 9, 1992). We think the better rule is that courts can decide res judicata. See Miller, 781 F.2d at 501 (where state court dismissed plaintiff's claims with prejudice, and plaintiff then sought arbitration of claims that could have been brought in state suit, district court properly enjoined arbitration on the basis of res judicata); see also New York State Ass'n for Retarded Children v. Carey, 456 F.Supp. 85, 96 (E.D.N.Y.1978) (res judicata is exception to general rule requiring arbitration of issues going to the merits); City of Rochester v. AFSCME, 54 A.D.2d 257, 388 N.Y.S.2d 489, 491 (N.Y.App.Div.1976) (same). Courts should not have to stand by while parties re-assert claims that have already been resolved. See Miller, 781 F.2d at 497 n. 3 ("res judicata ... [has] probably done more to prevent useless and wasteful litigation than arbitration ever could."). The issue is not just one of preventing the piecemeal litigation that occurs when parties simultaneously assert claims in several forums, but of protecting prior judgments. Therefore, the district court properly reached the res judicata issue.

III.

[*1069]9

We turn to the merits of the res judicata defense. A party can waive res judicata by consenting to split the claim into two suits. Restatement (Second) of Judgments § 26 cmt. a. The agreement here gave both parties the right to compel arbitration of state law claims, but not federal securities claims, even if both kinds of claims arose from the same events. See Blue Gray Corps. I & II v. Merrill Lynch, 921 F.2d 267, 271 (11th Cir.1991). Plaintiffs argue that because defendant essentially agreed to arbitrate some claims but litigate others, defendant waived or should be equitably estopped from asserting res judicata.

10

We cannot read the agreement as an express or implied waiver of res judicata. The agreement simply allowed plaintiffs to institute two suits based on the same events. Nothing shows that the parties understood--or that defendant led plaintiffs to believe--that the end of first action would not preclude the start of the second.[2] Therefore, defendant was entitled to assert res judicata.

11

Res judicata bars parties from relitigating issues that were or could have been raised in the first action. Federated Dep't Stores v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981). Plaintiffs could have asserted the state claims before the district court, which would have had pendent or diversity jurisdiction over the claims.[3] The uncertainty of whether defendant would move to compel arbitration of the state claims did not justify two proceedings. Cf. Harper Plastics v. Amoco Chemicals Corp., 657 F.2d 939, 946 (7th Cir.1981) (uncertainty of whether court would assert pendent jurisdiction did not justify multiple proceedings). The district court properly decided res judicata barred the arbitration.

12

We review the district court's injunction for abuse of discretion. See Delta Air Lines, Inc. v. McCoy Restaurants, Inc., 708 F.2d 582, 587 (11th Cir.1983); Tai Ping, 731 F.2d at 1146. The district court was in the best position to decide whether the arbitration proceedings jeopardized its prior judgment. See Delta, 708 F.2d at 586. It did not abuse its discretion by concluding an injunction was necessary.[4]

13

AFFIRMED.

1

Each plaintiff had previously signed a written agreement with defendant that said:

Except to the extent that controversies involving claims arising under the federal securities laws may be litigated, any controversy between us arising out of such option transactions or this agreement shall be settled by arbitration ...

R2-151-12-13.

2

This lack of misleading conduct on defendant's part distinguishes our case from Calderon Rosado v. General Elec. Circuit Breakers, 805 F.2d 1085, 1087 (1st Cir.1986). In Calderon, both parties agreed the plaintiff would dismiss her state case and proceed exclusively in federal court, only to have the defendant later plead res judicata in the second claim

The other cases plaintiffs cite, Kendall v. Avon Prods., 711 F.Supp. 1178, 1182 (S.D.N.Y.1989), and Imperial Constr. Mgt. Corp. v. Laborers Int'l Local 96, 729 F.Supp. 1199, 1205-07 (N.D.Ill.1990), are also distinguishable. In those cases, the plaintiffs brought two actions simultaneously and the defendants did not object. It is one thing to say that when a defendant acquiesces in simultaneous suits, it impliedly agrees to let both suits proceed to resolution. It is another to say that by simply agreeing in advance of any controversy to litigate state and federal claims that might later arise in different forums, defendant agreed to let plaintiffs initiate one suit, lose, and try again in another forum.

3

That plaintiffs could have brought all their claims in district court--put differently, the district court had the power to decide all of plaintiffs' claims--distinguishes this case from Clark v. Bear Stearns & Co., 966 F.2d 1318 (9th Cir.1992). In Clark, the plaintiff brought state and federal claims in a single federal suit. Based on a pre-existing arbitration agreement, the district court ordered arbitration of the state claims, but retained jurisdiction over the federal claims. The arbitration panel later dismissed "[a]ll claims."

The Ninth Circuit held that res judicata did not bar the plaintiff from litigating the remaining federal claims in district court. Because the district court retained jurisdiction over the federal claims, the plaintiff could not have asserted them in the arbitration proceeding. Therefore, the arbitral judgment had no effect on the federal claims. Id. at 1321.

4

In a separate appeal, plaintiffs challenge the costs awarded to defendant. Because the district court neither abused nor failed to use its discretion in awarding costs to defendant, we affirm its award