Civil Procedure — issue preclusion

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United States Court of Appeals

Civil

Civil Procedure — issue preclusion

Where the substance of a plaintiff’s RICO claims were already litigated in a state-court receivership action, the doctrine of issue preclusion bars the claims.

“We see nothing ‘fundamentally unfair’ about applying issue preclusion to bar Virnich’s claims. To address the listed factors: (1) the parties inform us that the receivership court’s order is being appealed; (2) the questions of law in the receivership action and in the section 134.01 conspiracy action are factually indistinct, each turning on whether imposition of the receivership was proper; (3) nothing suggests that there were significant differences in the quality or extent of the proceedings in state or federal court; (4) the defendants did not have a lower burden of persuasion in seeking imposition of the receivership or in seeking waiver; and (5) Virnich had plenty of incentive to obtain full and fair adjudication of his allegations of impropriety in the initial action. He chose instead to withdraw and then to sit on those allegations in state court. He has attempted to bite this apple not just twice but three times. The doctrine of issue preclusion bars him from doing so.”

Affirmed.

10-3271 Virnich v. Vorwald

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Hamilton, J.