Legal Opinion · Dissent
Agg v. Flanagan
Court of Appeals for the Sixth Circuit
Decided August 25, 1988No. Nos. 87-3389, 87-3428Published
1DissentContie, Senior Circuit Judge
In my opinion, this case should be remanded to the district court for consideration of the issue of claim preclusion. Accordingly, I would not reach the merits of this case on appeal. For this reason, I respectfully dissent.
Several courts sua sponte have raised the issue of res judicata or claim preclusion despite Federal Rule of Civil Procedure 8(c) which states that a party should plead res judicata as an affirmative defense. See, e.g., McClain v. Apodaca, 793 F.2d 1031, 1032-33 (9th Cir.1986) (bankruptcy court sua sponte raised issue of res judicata; affirmed on appeal); Minneapolis Auto…
2Cases cited16 opinions
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- Hicks Ex Rel. Feiock v. FeiockSupreme Court of the United States · 1988
- Jack W. McClain v. Gilbert Apodaca, Kent Rogers, Coronado Financial Corporation and Audio Security, Inc., Edward M. Link and Carl F. AgrenCourt of Appeals for the Ninth Circuit · 1986
- Sheila Vinson v. Campbell County Fiscal Court Nickie Hornsby and William StollCourt of Appeals for the Sixth Circuit · 1987
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