green
Positive treatment
Issue: adequacy inquiryMD ↗
Issue: adequacy warningMA ↗
Issue: second prong testNJ ↗
Issue: adequacy warningWA ↗
Quoted verbatim 1×
29.4 score
G Cite
cited 8× by 8 distinct cases, 1976–2023 · 5 courts ·
…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.
at p. 89
⚠ not in text
cited 6× by 6 distinct cases, 1987–2021 · 3 courts ·
…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.
at p. 89
⚠ not in text
cited 6× by 6 distinct cases, 1985–2013 · 2 courts ·
…ought nonetheless 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.
⚠ not in text
Topic ↗
Treatment trajectory · 1961 → 2026 · click a year to view as-of
1961
1993
2026
Top citers, strongest first. 50 distinct citers.
How cited ↗
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.
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.
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).
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)
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…
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)
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…
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)
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.
cited
Cited as authority (rule)
MacFarlane v. Village of Scotia, NY
Co., 297 F.2d 80, 89 (2d Cir.1961), cert. denied *65 sub nom.
discussed
Cited as authority (rule)
TM Patents, L.P v. International Business MacHines Corp.
(2×)
Co., 297 F.2d 80, 89 (2d Cir.1961), it has been settled that a judgment that is not “final” in the sense of *376 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.
cited
Cited as authority (rule)
United States v. McGann
Co., 297 F.2d 80, 89 (2d Cir.1961) (Friendly, J.), cert. denied, 368 U.S. 986 (1962).
discussed
Cited as authority (rule)
J.R. Clearwater Inc., Jeff Young Russell King, Intervenor-Plaintiffs, and Frank Falgiani and Marius Griffo v. Ashland Chemical Co.
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), and the Restatement (Second) Judgments for the proposition that something less than section 1291 finality is sufficient for purposes of issue preclusion.
cited
Cited as authority (rule)
Northwest Airlines, Inc. v. Astraea Aviation Services, Inc.
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)
Freer v. Weinstein (In Re Weinstein)
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); Chemetron Corp. v. Business Funds, Inc., 682 F.2d 1149, 1191 (5th Cir.1982) (“ ‘[F]inality’ in the offensive collateral estoppel context is ‘fully litigated.’ ”).
discussed
Cited as authority (rule)
Kay-R Electric Corporation v. Stone & Webster Construction Co., Inc., and the Federal Insurance Company
Co., Inc., 297 F.2d 80, 89 (2d Cir.1961), cert. denied, 368 U.S. 986 , 82 S.Ct. 601 , 7 L.Ed.2d 524 (1962) has said that “finality” for purposes of collateral estoppel “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,” the court mentioned as matters to be considered “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.” There is-of course no opportunity to review a …
cited
Cited as authority (rule)
DeCoamo v. ILGWU
However, his main concern in Lummus was with ______ "the baneful effect" of permitting appeals from "order[s] refusing a stay of arbitration." 297 F.2d at 86.
cited
Cited as authority (rule)
DeCoamo v. ILGWU
However, his main concern in Lummus was with "the baneful effect" of permitting appeals from "order[s] refusing a stay of arbitration." 297 F.2d at 86.
cited
Cited as authority (rule)
Delbert W. Coleman and Karen A. Graham v. Commissioner of Internal Revenue
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)
Ossman v. Diana Corp.
The Eighth Circuit rejected the defendant union’s argument. 16 While this circuit has not squarely confronted this issue, we believe that finality for purpose of appeal ... is not necessarily the finality that is required for issue preclusion purposes_■ “[W]e see no reason why in an appropriate case a ruling that is final on the issue of liability should not preclude the party against whom the decision ran from presenting further evidence on the issue there finally determined.” Id. (footnote and citations omitted); see also In re Brown, 951 F.2d 564, 569 (3d Cir.1991) *876 (“[T]he ef…
discussed
Cited as authority (rule)
United States of America State of New York v. Alcan Aluminum Corporation, Defendant-Third-Party-Plaintiff-Appellee-Cross-Appellant v. Cornell University, Third-Party-Defendant-Appellant-Cross-Appellee
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); accord Sherman v. Jacobson, 247 F.Supp. 261, 268 (S.D.N.Y.1965); see also Stauffer Chem., 464 U.S. at 180 , 104 S.Ct. at 583 (White, J., concurring in result) (estoppel is a "flexible, judge-made doctrine"). 21 In this case, we are satisfied that the liability ruling made by the Northern District was sufficiently final to be entitled to estoppel effect.
discussed
Cited as authority (rule)
United States v. Alcan Aluminum 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); accord Sherman v. Jacobson, 247 F.Supp. 261, 268 (S.D.N.Y.1965); see also Stauffer Chem., 464 U.S. at 180 , 104 S.Ct. at 583 (White, J., concurring in result) (es-toppel is a “flexible, judge-made doctrine”).
examined
Cited as authority (rule)
Goodheart Clothing Company, Inc. v. Laura Goodman Enterprises, Inc., Laura Goodman and Benjamin Goodman
(4×)
also: Cited "see"
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), we considered whether a judgment that was nonfinal under 28 U.S.C. § 1291 (1988) might nonetheless be considered final for purposes of preclusion, 1 and concluded that the 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." Amalgamated Sugar Co. v. NL Indus., Inc., 825 F.2d 634 , 642 (2d Cir.), cert. denied, 484 U.S. 992 , 108 S.Ct. 511 , 98 L.Ed.2d 511 (1987), was decided on oth…
discussed
Cited as authority (rule)
Avondale Shipyards, Inc., Cross-Appellant v. Insured Lloyd's, Cross-Appellee
Co., 297 F.2d 80, 87-90 (2d Cir.1961), cert. denied, 368 U.S. 986 , 82 S.Ct. 601 , 7 L.Ed.2d 524 (1962); Zdanok v. Glidden Co., 327 F.2d 944, 955 (2d Cir.), cert. denied, 377 U.S. 934 , 84 S.Ct. 1338 , 12 L.Ed.2d 298 (1964); Miller Brewing Co. v. Jos.
cited
Cited as authority (rule)
Americana Fabrics, Inc. v. L & L Textiles, Inc.
Co., 297 F.2d 80, 89 (2d Cir.), cert. denied, 368 U:S. 986, 82 S.Ct. 601 , 7 L.Ed.2d 524 (1961).
discussed
Cited as authority (rule)
Jean Hayes and Citizens National Bank v. Allstate Insurance Company and Allstate Indemnity Company
(2×)
Co., 297 F.2d 80, 84-85 (2d Cir.1961) (Friendly, J.); Clark v. Kraftco Corp., 447 F.2d 933, 935 (2d Cir.1971); University Life Ins.
cited
Cited as authority (rule)
Hunter Douglas Inc. v. Sheet Metal Workers International Association, Local 159
Co., 297 F.2d 80, 89-90 (2 Cir.1961), cert. den. 368 U.S. 986 , 82 S.Ct. 601 , 7 L.Ed.2d 524 (1962).
cited
Cited as authority (rule)
University Life Insurance Company of America v. Unimarc Ltd. And George C. Huff
Co., 297 F.2d 80, 84-85 (2d Cir.1961), that otherwise section 1292(a)(1) would allow piecemeal appeals, which would impair one of the principal advantages claimed for arbitration— speed.
discussed
Cited as authority (rule)
Acton Corporation v. Borden, Inc.
This theory is inapplicable here, however, for courts have specifically written that a proceeding to compel arbitration under 9 U.S.C. § 4 is not a suit for “injunctive” relief; rather they have called it a suit for a “unique statutory remedy,” John Thompson Beacon Windows, Ltd. v. Ferro, Inc., 232 F.2d at 369 ; Lum-mus Co. v. Commonwealth Oil Refining Co., Inc., 297 F.2d at 85.
cited
Cited as authority (rule)
Church of Scientology of California v. Linberg
In Lummus Co., supra, the court noted that the prior judgment had in fact been litigated on appeal, even though in the typical case the order entered would not have been appealable. 297 F.2d at 90.
discussed
Cited as authority (rule)
Georgakis v. Eastern Air Lines, Inc.
(2×)
Quoting from the Lummus case, Judge Friendly, writing for the court in Zdanok , also related that “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. 327 F.2d at 955 (quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d at 89).
discussed
Cited as authority (rule)
Sherman v. Jacobson
In discussing the problem, Judge Friendly pointed out (297 F.2d at 89): 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.
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.