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Sua sponte consideration of issue preclusion generally
should be limited to circumstances where the parties are given an
opportunity to address the applicability of the doctrine to a
particular issue. See Nevada Employees Association, Inc. v.
Keating, 903 F.2d 1223, 1225-1226 (9th Cir. 1990); McClain v.
Apodaca, supra at 1033; see also Blonder-Tongue Labs., Inc. v.
University of Ill. Found., 402 U.S. 313, 350 (1971) (“The purpose
of * * * [requiring claim preclusion and issue preclusion to be
pleaded] is to give the opposing party notice of the plea of
estoppel and a chance to argue, if he can, why the imposition of
an estoppel would be inappropriate.” (emphasis added)). The
Court need not subject the issue preclusion decision to the
rigors of the adversarial process, however, if doing so would be
futile. Cf., e.g., McKinney v. Oklahoma Dept. of Human Servs.,
925 F.2d 363, 365 (10th Cir. 1991) (District Court may sua sponte
dismiss a complaint under Fed. R. Civ. P. 12(b)(6) without notice
and an opportunity to respond when it is “patently obvious” that
claimant could not prevail); Baker v. Director, U.S. Parole
Commn., 916 F.2d 725, 726-727 (D.C. Cir. 1990) (same); Omar v.
Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (where
counterclaimant cannot possibly win relief because its theory was
the same as its defense to a claim, which defense was rejected
after a hearing, the trial court did not err in effectively
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