Tag Archives: claim preclusion

Second Circuit Has “Serious Doubts” as to Whether Federal Claim Preclusion “Can Ever Be Used Offensively to Compel a Judgment”

In Thermal Surgical, LLC v. Brown, No. 24-127 (2d Cir. Aug. 8, 2025), the Second Circuit expresses “serious doubts as to whether [federal claim] preclusion can ever be used offensively to compel a judgment rather than resist a claim,” though it winds up vacating and remanding the decision here on other grounds. Plaintiff Thermal SurgicalContinue reading “Second Circuit Has “Serious Doubts” as to Whether Federal Claim Preclusion “Can Ever Be Used Offensively to Compel a Judgment””

Tenth Circuit Holds That Federal Claim Preclusion Applies to Supplemental State-Law Claim Dismissed Without Prejudice in First Federal Action, If Plaintiff Could Have Originally Asserted Diversity Jurisdiction Over That Claim

In Markley v. U.S. Bank NA, No. 24-1163 (10th Cir. June 24, 2025), the Tenth Circuit opens up a potential trap for the unwary, holding that if “a party could have litigated a claim in a prior lawsuit by asserting diversity jurisdiction but fails to do so,” then that claim is precluded in a secondContinue reading “Tenth Circuit Holds That Federal Claim Preclusion Applies to Supplemental State-Law Claim Dismissed Without Prejudice in First Federal Action, If Plaintiff Could Have Originally Asserted Diversity Jurisdiction Over That Claim”