RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206

File Name: 05a0278p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

L INDA G ILBERT , et al., Plaintiffs-Appellants,

v.

J OHN D. F ERRY
, J R ., et al., Defendants-Appellees. X - - - -

> , - - N No. 04-1207

Filed: June 24, 2005

Before: BOGGS, Chief Judge; KENNEDY and MARTIN, Circuit Judges.

_________________ ORDER

_________________ On March 24, 2005, Plaintiffs filed a petition for rehearing of our decision in Gilbert v. Ferry , 401 F.3d 411 (6th Cir. 2005). In lightof the Supreme Court’s decision in Exxon Mobil Corporation v. Saudi Basic Industries Corporation , 125 S. Ct. 1517 (2005), we grant the Plaintiffs’ petition for rehearing and we vacate section II.A. of our opinion, which relates to the application of the Rooker/Feldman doctrine.

However, we continue to affirm the district court’s dismissal of Plaintiffs’ action on the alternative basis. That is, although the district court (in light of Exxon ) had jurisdiction over Plaintiffs’ claims, Younger abstention would also support the district court’s action. See Exxon

, 125 S. Ct. at 1526-27 (noting that although “the pendenc y of an action in [a] state court is no bar to proceedings concerning the same matter in [a] [f]ederal court having jurisdiction[,] [c]omity or abstention doctrines may, in various circumstances, permit or require the federal court to stay or dismiss the federal action in favor of the state- court litigation.”) (internal quotations and citations omitted).

We further conclude that collateral estoppel precludes the maintenance of the Plaintiffs’ action. As the Court explained in Exxon , the disposition of an ongoing federal action (that was filed before the entry of judgment in a parallel stat e court case) is governedby preclusion law once a parallel state court adjudication is complete, as it is here. 125 S. Ct. at 1527.

We recognize that collateral estoppel is an affirmative defense which is ordinarily deemed waived if not raised in the pleadings. The Defendants did not raise collateral estoppel to the district court. However, “[f]ailure to raise an affirm ative defense by responsive pleading does not always result in waiver.” Smith v. Sushka , 117 F.3d 965, 969 (6th Cir. 1997) (citing Moore, Owen, Thomas & Co. v. Coffey , 992 F.3d 1439, 1445 (6th Cir. 1993)). Rather , we may overlook waiver and address the preclusion issue. Clements v. Airport Auth. of Washoe County , 69 F.3d 321, 329 (9th Cir. 1995); see also Smith , 117 F.3d at 969 (holding that th e district court did not abuse its discretion in allowing

1No. 04-1207 Gilbert, et al. v. Ferry, et al. Page 2

1 The Plaintiffs filed their petition for rehearing before the Court issued its opinion in Exxon . After the Court issued its Exxon opinion, the Plaintiffs then filed a motion to vacate our opinion in Gilbert and remand to the district court. In response to this motion, the Defendants noted not only that Gilbert should be affirmed on the basis of Younger abstention (the alternative ground announced in the opinion), but also that collateral estoppel precluded the maintenance of the Plaintiffs’ federal claims. In reply to the Defendants’ response, the Plaintiffs simply argued that collateral estoppel did not apply because there had been no prior state court j udgment. They did not argue that the Defendants had waived their right to raise collateral estoppel. This further supports our decision to consider the issue. defense of collateral estoppel to be raised in motion for summary judgment). The purposes of collateral estoppel are to shield litigants (and the judicial system) from the burden of re-litigating identical issues and to avoid inconsistent results. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4403 at 11-18. If the prevailing party in a previous action fails to raise collateral estoppel as a defense to a subsequent acti on, and if the parties in fact re-litigate the issue, then the party who failed to raise collateral estoppe l should be deemed to have waived it since the purpose served by collateral estoppel (to prevent the re-litigation of issues) has been fatally compromised. In this case, at the time the Plaintiffs filed their complaint in federal court, there had been no state judgment, and thus no ground for the Defendants to ha ve raised collateral estoppel. Shortly thereafter, a state court judgment was re ndered (when the Michigan Supreme Court justices denied the Plaintiffs’ motion to recuse). At this point, the Defendants could have raised collateral estoppel. Although they did not raise collateral estoppel, the Defendants did raise the Rooker/Feldman doctrine. The basis upon which the Defendants’ Rooker/Feldman argument rests is the same basis upon which the Defendants’ collateral estoppel argument would have rested (if they had raised it), namely, that the issue in dis pute in the Plaintiffs’ federal claims was previously decided in state court. Since the Defendants raised the fact that the issue in dispute in federal court had been previously litigated in state court in an effort to prevent its re- litigation, and since “[w]here the plaintiffs have had a full and fair opportunity to actually litigate the issue and did in fact litigate it, they can not ordinarily be prejudiced by subse quently being held to the prior determination[,]” we will apply collateral estoppel in this case desp ite the Defendants’ failure to raise the issue properly. 1 Clements, 69 F.3d at 330.

As the Court re-iterated in Exxon , the “Full Faith and Credit Act . . . requires the federal court to ‘give the same preclusive effect to a st ate-court judgment as another court of that State would give.’” Exxon , 125 S. Ct. at 1527 (quoting Parsons Steel, Inc. v. First Alabama Bank , 474 U.S. 518, 523 (1986)). In Michigan, “for collateral estoppel to apply three elements must be satisfied: (1) ‘a question of fact essential to th e judgment must have been actually litigated and determined by a valid and final judgment’; (2) ‘thesame parties must have had a full [and fair] opportunity to litigate the issue;’ and (3) ‘there must be mutuality of estoppel.’” Monat v. State Farm Ins. Co. , 469 Mich. 679, 681 (2004) (quoting Storey v. Meijer, Inc., 431 Mich. 368, 373 n.3 (1988)) (alteration in original and footnote omitted).

As to the mutuality requirement, the Monat court held that mutuality was not required when collateral estoppel was being used defensively. 469 Mich. at 691 (“[W]e believe that the lack of mutuality of estoppel should not preclude the us e of collateral estoppel when it is asserted defensively to prevent a party from relitigating an issue that such party has already had a full and fair opportunity to litigate in a prior suit.”). Since the Defendants are using defensive collateral estoppel in this case, mutuality is not required.

We also conclude that the other two requirement s have been met. First, the issue raised in the Plaintiffs’ federal claims was actually litigated and determined by a valid and final judgment. “When an issue is properly raised, . . . submitted for determination, and is determined, the issue is actually litigated . . . .” Restatement (Second) of Judgments § 27 cmt. d (1982). In this case, the Plaintiffs moved to recuse the Defendant jus tices from sitting on cases involving the Plaintiffs because, they argued, the probability of actual bi as on part of the Defendant justices towardNo. 04-1207 Gilbert, et al. v. Ferry, et al. Page 3

2 Although the issue was decided through a motion to recuse , rather than a motion for judgment or after trial, that does not militate against the conclusion that the Plaintiffs had a full opportunity to litigate the issue.

3 The question presented for review in Plaintiffs Grav es’ and Amedure’s petition for a Writ of Certiorari was as follows: “Have the Petitioners been deprived of their . . . Due Process [rights] under the Fourteenth Amendment, by the refusal of . . . Michigan Supreme Court [justices] to recuse themselves, and in deciding an appeal when they have openly expressed prejudice and bias toward an attorney involved in the case?” Plaintiffs’ counsel was too high to be constitutionally tolerable. This issue was determined against them when the motions to recuse were denied. Mo reover, this is the same issue that the Plaintiffs raised in their federal claim.

In determining whether the matter presented inthe second action and that presented in the first are the same, we consider the argument a nd evidence advanced in the second proceeding and that advanced in the first. Id . at cmt. c. The Plaintiffs pres ented the same argument and evidence in both claims, namely, that the Defendant justices failure to recuse themselves violated their constitutional right to a fair trial before an impartial tribunal since the Defendant justices had an improper pecuniary interest in a case before them involving (some of) the Plaintiffs and that the justices had expressed professional animus toward the Plaintiffs’ counsel (who was also a Plaintiff in this case). Moreover, the fact that the Defendant justices denied the motions to recuse only after the Plaintiffs filed their federal complaint does not counsel against the invocation of collateral estoppel. When there are two simultaneously pe nding actions, the first action to reach judgment “becomes conclusive in the other action.” Id. at cmt. l. Therefore, the Defendant justices’ denials of the motions to recuse constitute a valid a nd final judgment, which invoked collateral estoppel principles in the still-pending federal action.

Finally, the Plaintiffs had a full and fair opportunity to litigate the issue. 2 The Plaintiffs had a more than adequate opportunity to raise their c onstitutional challenge in state court, as evidenced by the fact that their lengthy brief in support of th eir motion to recuse contained the same arguments and assertions as presented in their complaint filed in federal court. In determining whether a party has had a full and fair opportunity to litigate, the Monat court instructed that a court should look to the factors set forth in §§ 28-29 of the Restat ement (Second) of Judgments. 469 Mich. at 847 n.2. These sections provide factors that, if found, support the finding that the re- litigation of an issue in a subsequent action between parties is not precluded even though the issue has been actually litigated and determined by a final and valid judgment. After considering these factors, we conclude that they do not support such a finding.

For instance, § 28(1) provides that if the “party against whom preclusion is sought could not, as a matter of law, have obtaine d review of the judgment in the initial action,” then re-litigation of the issue in a subsequent action should be permitted. In this case, the Plaintiffs could (and some in fact did) seek review of the stat e court’s adverse determination of their motions to recuse by seeking certiorari to the United States Supreme Court. See Graves v. Warner Bros. , 469 Mich. 853 (Mich. Oct. 10, 2003), cert. denied , 124 S. Ct. 2884 (2004). 3 Moreover, re-litigation of the issue is not required since the issue is one of law and the two actions involve claims that are not substantially unrelated; nor is re-litigation of the issue require d as the Plaintiffs did not have a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action. Restatement (Second) of Judgments § 28(2)-(3).No. 04-1207 Gilbert, et al. v. Ferry, et al. Page 4

For the foregoing reasons, we AFFIRM the di smissal of Plaintiffs’ action on the ground of Younger abstention, and conclude that collateral estoppel would preclude the maintenance of Plaintiffs’ action.

Further, we deny the petition for rehearing in all other respects.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

____________________________________ Clerk