Estate of Mary D. Maggos - Page 19

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               cert. denied, 501 U.S. 1260, 111 S.Ct. 2915, 115                       
               L.Ed.2d 1078 (1991) (internal quotation marks omitted).                
               “[F]ederal law governs the application of judicial                     
               estoppel in federal court.”  Rissetto, 94 F.3d at 603.                 
               The Courts of Appeals are divided into what has been                   
          described by the Court of Appeals for the Ninth Circuit as the              
          majority and minority positions.14  See Rissetto v. Plumbers &              
          Steamfitters Local 343, 94 F.3d 597 (9th Cir. 1996).  In Yanez v.           
          United States, 989 F.2d 323, 326 (9th Cir. 1993) (quoting Morris            
          v. California, 966 F.2d 448, 452-453 (9th Cir. 1992)), the court            
          characterized the positions, stating:                                       
               “The majority of circuits recognizing the doctrine hold                
               that it is inapplicable unless the inconsistent                        
               statement was actually adopted by the court in the                     
               earlier litigation * * *  The minority view, in                        
               contrast, holds that the doctrine applies even if the                  
               litigant was unsuccessful in asserting the inconsistent                
               position, if by his change of position he is playing                   
               ‘fast and loose’ with the court....  In either case,                   
               the purpose of the doctrine is to protect the integrity                
               of the judicial process. * * *”                                        
               This case is appealable to the Court of Appeals for the                
          Ninth Circuit; as a consequence, we apply the doctrine as                   
          enunciated by the Court of Appeals for the Ninth Circuit.                   

               14The Court of Appeals for the Tenth Circuit has firmly                
          established that it will not be bound by the doctrine of judicial           
          estoppel.  See Rascon v. U.S.W. Communications, Inc., 143 F.3d              
          1324 (10th Cir. 1998); see also the position of the Court of                
          Appeals for the District of Columbia Circuit expressed in United            
          Mine Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469,             
          477 (D.C. Cir. 1993) (noting that this circuit has “not                     
          previously embraced” judicial estoppel).                                    

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