findings of fact on equitable claims in a condemnation action to dismiss by collateral stoffel the discrimination claims that federal discrimination claims which new west  had filed against against juliet claims which congress we submit as has mandated be tried by a jury the issue here is whether the discretion afforded the court by park lane and beacon theatres and the district courts on application of the federal rules can deprive new west of a jury trial  thing as a compulsory defense i think the reason i'm asking is is because he looks like the choice to present these arguments in the condemnation action was entirely new west's so new west having presented this is an argument in that action obviously wasn't going to get a jury trial and the condemnation action and now wants a second bite at the apple but new west could have had a jury trial just by not presenting these defenses commission action except your honor for the fact that affirmative defenses unless asserted in a kind of nation action under the rules are deemed to be waived and we most certainly waive it as defenses to the condemnation action well and but you've already told me they aren't compulsory counterclaim so they could be asserted in a separate piece of litigation that's just what it means to say they are not compulsory counterclaims whether no counter claims are provided for at all and then yes in consequence they are presentable in a separate action they are if unless they've been deemed waived by virtue of the fact that they weren't presented in a prior action that was my own i'm just saying there compulsory counterclaims do you have any authority for the proposition that an f h a claim is barred by not being presented as a defense in a condemnation action the authority we have is that a firm of the answer is either yes or no problem what you're saying is that the seventh amendment entitle you to present the same argument twice and i'm that's hard to see at the end our concern judge is that had we not presented them as affirmative defenses we certainly would have met an objection that they'd been waived by now if there was some florida before that proposition that would stand you in good stead that's why i look for it that's why i'm now asking you what's the authority for that proposition no authority as you're on a court of the land seems to me the cornerstone of your current argument that you have to make this defense in the condemnation and i just don't know any authority for that proposition and you haven't cited any i couldn't find any i've and if there isn't any then well well there we are we're tossed back to general waiver principles your honor and it with respect to issues not raised are deemed waived and i submit that the general waiver law on affirmative defenses in any action is if not asserted that they can be deemed wave and we're confident that counsel for the council would most certainly have taken that position so case and the condemnation case i believe is critical in determining whether park lane applies to this case and supports the application of collateral stoppel in march of two thousand and five new west filed a complaint against monetary damages for discrimination on the fair housing act this case was assigned to judge normal more than six months later joel had filed an equitable condemnation action which was removed to this court judge normal then including significantly that the cases were quite susceptible of disposition in a single proceeding judge normal was granted and as a way size you ever ask whether it would agree not serve waiver defense if the f h a defense was withdrawn getting a stipulation from opposing counsel could have avoided any risk on this issue my understanding since two thousand and five at issue here is his application of collateral stoppel under circumstances where he could have preserved the jury trial right we submit there were no imperative why do you think the supreme court was wrong the park lane case involved a congressional mandate to try an f c c case and s e c enforcement action first you know regardless of a parallel private action and w supreme court you're disagreeing with office you know you you could have asked the supreme court maybe you did ask the supreme court to reverse our instruction that the condemnation action be tried first but we did direct the district judge to do that because it had been far too long to weigh and the principal reason that had been far too long delayed was your defense under the f h a and your honor you did direct them to do that to recognize that the jury issue finding made in an earlier equitable action in a bench trial precludes effect in a later legal action and this is just a matter of the courts discretion in deciding whether to consolidate these trials and conduct them with a jury because use of offensive collateral stoffel but to grant tort courts broad broad discretion to determine when it should be applied they were not to say that the general rule should be that of cases where the application of the offense of collateral  which was the only issue that the court divided on and partly we were the only issue here is whether the up to the jury trial issue is one that precludes the granting of collateral stuff right judge that's the problem here because they don't have to be right i mean what if it not had not been judge not often both excellent have an argument about the seventh amendment i submit it's the absence of the congressional mandate the absence of the imperative circumstances required by parking would have even had to deal with it and portland didn't so limited the general language and perfectly recognizes the general principle of claims before one court claims in an action yes these actions had different numbers and for certain purposes they were certainly distinct but for all intents and purposes college consolidated together since two thousand and five they were x except in form they were one action here it was the action of th matters of course it does put put here all the claims certainly if they can is not limited to simply the technical term of same action and resubmit that the actual language of in the same action that was beacons reference to to rule eighteen it became court went on to seriously consider the discretion of truck courts to sequence claims and and concluded be very narrowly congressional mandate to proceed with a bankruptcy proceeding separately and catchin the petition of their voluntarily did submit his claim in bankruptcy which he didn't have to do we could have waited and had a jury trial later here we  submit that we had no option but to search those affirmative fences or we would have been they would have been deemed waived in a subsequent proceeding and that's why new west did it so it's really the absence of that s t c congressional mandate the absence of the case in a long case but a jury trial is an important thing and discrimination claims are critical congress declared that those claims should be five be tried to a jury here rather than using every opportunity available to  try to give new west a jury trial on the federal discrimination claims adopted to try them and selves as we morning honors at least the core and stephanie jones arguing on behalf of the police here this case really is like park lane and one fact that was not raised by opposing counsel that i think it's worth pointing out is that it was only before the eminent domain action was only before judge normal to the extent that it was because of kind of an unusual circumstance it was originally filed in the circuit court of will county and as a eminent domain case normally will be and the expectation at the time when juliet filed it is that there would be a relatively expedited proceeding before the judge in state court on what's called the traverse section and that domain matter and only after that would there be a jury trial on the damages or on essentially the you know the the value of the property and what has in fact happened though is that because hud was a mortgage holder the case got removed to federal court and then got put before judge nergal who was presiding over the related case  there's no question that as with park lane the two cases here are separate matters an eminent domain case is a separate action to a fair housing act case and in fact this case not and in fact the city argued strenuously before the lower court that the fair housing act should not be tried in the eminent domain action it was the city's position there was no need to reach all those issues and they don't  possibility of waiver and did i think so your honor and at the time the city wanted them and their domain case resolved and would have agreed and argued that the fair housing should be tried later there are cases where fair housing act claims arising out of amyt domain is tried is a separate matter one example is the hispanics united versus village of addison case which dealt with kind of a series of eminent domain actions by the village of addison that were challenged and said to represent they are a fair housing act violation here not only did the new west feel and need to choose to voluntarily choose to inject the fair housing act into the emmett domain case because its real desire here was to enjoying or prevent the eminent domain action it actually alleged interference in the mark to market process with a claim that joliet should not have gotten involved with that now clearly those issues are separate and this court recognized that in in two thousand and seven when the statement was made that really joliet eminent domain action should be tried first it might resolve some of the issues in the separate action and then you know other issues perhaps would then be up in question such as whether or not more pennington precluded the arguments about the mark to market process you know even the questions about the mark to market process were presented in case there were findings of fact entered as to them they became part of the conclusions of law and new west has not challenge that any of the matters involved in the current case were not actually decided in the eminent domain action which you know i might have thought would be the argument they would make but no they didn't argue any of that they've simply claimed that under beacon theatre which dealt solely with claims arising out of the same action that somehow means that the judge lost all discretion not to consolidate a fair housing act with a eminent domain matter even one that had circumstances been slightly different as the mortgage holders would have definitely been tried in the state court and there's no argument that if the state court had tried those issues that they would not have been collateral estoppel to the extent they were raised there chose to raise their so to suggest that that means contrary to park lane that this ruling and beacon theater should be expanded so that any time a judge has the ability to consolidate cases and that even setting aside the argument as to whether or not it would be appropriate to consolidate affirmative claims with an eminent domain action by setting that aside this would suggest that a judge has an obligation consolidated a sense you could remove all  discretion that is really classic that a judge has the right to determine whether or not to consolidate claims and it also then would raise the question ok if they happen to be before the same judge is there an obligation to consolidate well then is there an obligation to for the court to put them before the same judge you know how far does this expansive argument reach and to suggest that this is initially that had to do with whether or not that really had to do simply with the affirmative with the offensive use of collateral stoffel in a not mutual situation because the point was that it couldn't have been mutual because they were able to be part of the other auction none of that is really at issue here and the irony is the focus on on beacon theaters is that the problem and beacon theater was that essentially by preemptively filing a case raising the same issue saying hold that we did not violate the sherman act that the judge then could if if if that was permitted could then try any case essentially as an equitable action first before reaching the before reaching the merits of the claim that's clearly a problem and that is really what the ruling in beacon theatres relates to here it's almost like a reverse because essentially after new west knew that an eminent domain action was likely to be file they incorporated into this action after a request for an injunction against the eminent domain matter so they essentially want to open the doors the idea that they could raise well they say we're going to open the door to the matter that they would always be able to get two bites of the apple that they would be able if they put all of their defenses in the  effort will be done to preserve a right to a jury trial or whether it will be overridden by the application of certain rules beacon theater is recognized that with the advent of the federal rules the neat categories of claims were broken down there were just second born legal and so forth but that certain both could be joined from one proceeding as practice is evolved many claims are now joined and if not one case one proceeding the significant thing is the control of the federal judge but control over all aspects of this case and rather than taking the steps to preserve the jury right took the steps