Marrese v. Orthopedic Surgeons,
470 U.S. 373 (1985)

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U.S. Supreme Court

Marrese v. Orthopedic Surgeons, 470 U.S. 373 (1985)

Marrese v. American Academy of Orthopaedic Surgeons

No. 83-1452

Argued December 4, 1984

Decided March 4, 1985

470 U.S. 373


After being denied membership in respondent American Academy of Orthopaedic Surgeons, petitioner orthopaedic surgeons each filed an action in an Illinois Circuit Court, alleging that the denial of membership violated their associational rights under Illinois common law. After the Illinois Appellate Court ultimately held that the complaint in one action failed to state a cause of action, the Circuit Court then dismissed the other complaint. Subsequently, petitioners filed an action in Federal District Court, alleging that the denial of membership constituted a boycott in violation of § 1 of the Sherman Act. Respondent filed a motion to dismiss on the ground that claim preclusion barred the federal antitrust claim because the state actions concerned the same facts and were dismissed with prejudice. The District Court denied the motion, holding, in reliance on federal law, that the state judgments did not bar the Sherman Act claim. Thereafter, the District Court held respondent in criminal contempt for refusing to comply with a discovery order as to its membership application files. Respondent then appealed from the contempt order, and, while this appeal was pending, the District Court certified its denial of the motion to dismiss for immediate appeal. The Court of Appeals authorized an interlocutory appeal and ordered it consolidated with the appeal from the contempt order. Ultimately, the Court of Appeals held that, as a matter of federal law, claim preclusion barred the federal antitrust action, and reversed the contempt order because the discovery order was invalid.


1. The Court of Appeals had jurisdiction to review the District Court's denial of the motion to dismiss. The pendency of the appeal from the contempt order did not prevent the District Court from certifying such denial for immediate appeal. Pp. 470 U. S. 378-379.

2. The courts below erred in not considering Illinois law in determining the preclusive effect of the state judgments. Pp. 470 U. S. 379-386.

(a) Title 28 U.S.C. § 1738 which provides that state judicial proceedings

"shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken"

-- requires a federal court to look

Page 470 U. S. 374

first to state law in determining the preclusive effects of a state court judgment. Kremer v. Chemical Construction Corp., 456 U. S. 461. The fact that petitioners' antitrust claim is within the exclusive jurisdiction of the federal courts does not necessarily make § 1738 inapplicable in this case. While a state court will have no occasion to address the question whether a state judgment has issue or claim preclusive effect in a later action that can be brought only in federal court, a federal court may nevertheless rely in the first instance on state preclusion principles to determine the extent to which an earlier state judgment bars subsequent litigation. Pp. 470 U. S. 379-382.

(b) Reference to state preclusion law may make it unnecessary to determine if a federal court, as an exception to § 1738, should refuse to give preclusive effect to a state court judgment. Here, unless application of Illinois preclusion law suggests that petitioners' federal antitrust claim is barred, there will be no need to decide if there is an exception to § 1738. This Court will not create a special exception to § 1738 for federal antitrust claims that would give state court judgments greater preclusive effect than would the courts of the State rendering judgment, and that effectively holds as a matter of federal law that a plaintiff can bring state law claims initially in state court only at the cost of forgoing subsequent federal antitrust claims. Pp. 470 U. S. 383-386.

726 F.2d 1150, reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, POWELL, and REHNQUIST JJ., joined. BURGER, C.J., filed an opinion concurring in the judgment, post, p. 387. BLACKMUN and STEVENS, JJ., took no part in the consideration or decision of the case.

Page 470 U. S. 375

Primary Holding

Preclusion does not apply from a judgment in a state court to a federal antitrust claim if it could not have been raised in state court.


The Academy denied admission to Marrese, an orthopaedic surgeon. His action in state court under Illinois law was dismissed, and he then brought a federal antitrust claim. He would not have been able to raise the federal antitrust theories in state court because federal courts have exclusive subject matter jurisdiction over those actions. The Academy sought to dismiss the case under res judicata, but the trial court found that it did not apply.



  • Sandra Day O'Connor (Author)
  • William Joseph Brennan, Jr.
  • Byron Raymond White
  • Thurgood Marshall
  • Lewis Franklin Powell, Jr.
  • William Hubbs Rehnquist

When deciding whether preclusion applies, a federal court is required under 28 U.S.C. Section 1738 to examine the law of the state in which the judgment originated. It is unclear whether Illinois law required preclusion of an issue that is not within the jurisdiction of the court hearing the prior action. Most states do not allow this, so it is likely that the trial court ruled correctly. However, a further determination is needed on remand.


  • Warren Earl Burger (Author)

Unless state law requires this result, federal courts should not create a rule that preclusion is inappropriate if the issue could not have been fully and fairly litigated in the earlier action.


  • Harry Andrew Blackmun (Author)
  • John Paul Stevens

Case Commentary

The effect of res judicata is not always as rigidly applied now as it was in this case, especially in situations when it would lead to an unjust result. This doctrine is most often observed in the context of splitting a cause of action into two parts.

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