concurring in part and dissenting in part.
I concur in parts I and II of the court’s opinion in this case. I dissent from the holding in part III that Sun Oil’s general invocation of “res judicata” in its amended answer suffices to overcome Sun’s acquiescence in the maintenance by Davis of concurrent actions in state court and federal court.
Section 24 of the Restatement of Judgments (2d) (1982), which articulates the rule against claim-splitting, provides that it is subject to the exceptions described in § 26. Consequently, when the Ohio Supreme Court “expressly adherefd] to the modern application of the doctrine of res judicata ” found in §§ 24-25, see Grava v. Parkman Township, 73 Ohio St.3d 379, 653 N.E.2d 226, 229 (1995), it also adopted § 26 of the Restatement, which provides, in pertinent part:
EXCEPTIONS TO THE GENERAL RULE CONCERNING SPLITTING
(1) When any of the following circumstances exists, the general rule of § 24 does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant:
(a) The parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant' has acquiesced therein....
The accompanying comment states in part:
A main purpose of the general rule stated in § 24 is to protect the defendant from being harassed by repetitive actions based on the same claim. The rule is thus not applicable where the defendant consents, in express words or otherwise, to the splitting of the claim____ Where the plaintiff is simultaneously maintaining separate actions based upon parts of the same claim, and in neither action does the defendant make the objection that another action is pending based on the same claim, judgment in one of the actions does not preclude the plaintiff from proceeding and obtaining judgment in the other action. The failure of the defendant to object to the splitting of the plaintiffs claim is effective as an acquiescence in the splitting of the claim.
Sun filed an amended answer to the Davises’ RCRA suit on March 22, 1994, asserting, among other defenses, that “Plaintiff’s claims are barred by the doctrine of waiver,” and “Plaintiffs claims are barred by the doctrine of res judicata.” The question arises whether this was an objection, or a sufficient one, to the Davises’ claim-splitting. I conclude that it was not, and that Sun thereby in effect acquiesced in the bringing of the federal action. See, e.g., In re Super Van Inc., 92 F.3d 366, 371 (5th Cir.1996); Clements v. Airport Auth. of Washoe County, 69 F.3d 321, 328 (9th Cir.1995); Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1072-73 (3d Cir.1990); Calderon Rosado v. General Elec. Circuit Breakers, Inc., 805 F.2d 1085, 1087 (1st Cir.1986).
Conceivably the mention of waiver suggests that the Davises waived their opportunity to bring the RCRA claim in state court, but that is a speculation never borne out in Sun’s briefs below. As for the defense of res judicata, it is true that claim-splitting falls under that broad heading. But Sun’s brief below suggests that by claiming this defense, *614it was not complaining of claim-splitting, but was advancing its theory of full remedies discussed above at 610-612.1
I note, too, the boiler-plate nature of Sun’s amended answer. Here it is useful to look to the rules pertaining to the pleading of affirmative defenses. I recognize, of course, that Fed R. Civ. P. 8(e) provides that “[n]o technical forms of pleadings or motions are required.” But requiring an affirmative defense to be stated in an intelligible manner is not a mere formalism. While the rule against splitting claims is essential to the repose to which defendants are ultimately entitled, it must be applied fairly to plaintiffs, as well. An essential aspect of that fairness is adequate notice of the nature of the affirmative defense. “Res judicata and collateral estoppel are affirmative defenses that must be pleaded---- The purpose of such pleadings 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.” Blonder-Tongue Labs., Inc. v. University of Ill. Found,., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). “An affirmative defense may be pleaded in general terms and will be held to be sufficient, and therefore invulnerable to a motion to strike, as long as it gives plaintiff fair 'notice of the nature of the defense.” 5 Charles Alan Wright & Arthur R. Miller, 5 Federal Practice and Procedure § 1274 (emphasis added). “Rule 8(c), by requiring defendant to plead his defense or risk waiving it, also selves the purpose of giving the opposing party notice of the defense and an opportunity to argue why his claim should not be barred completely.” Id. at § 1270. “Another highly relevant consideration [as to whether a theory must be pleaded as an affirmative defense] is whether plaintiff will be taken by surprise by the assertion at trial of a defense not pleaded affirmatively by the defendant.” Id. at § 1271. “The requirement that affirmative defenses be specifically pleaded is based on notions of fair play. A party should not have to deal with an extraneous issue in a lawsuit unless it is specifically brought to his attention.... More important, what matters is not whether the magic words ‘affirmative defense’ appears in pleadings, but whether the Court and the parties were aware of the issues involved.” Baker v. City of Detroit, 483 F.Supp. 919, 921 (E.D.Mich.1979), aff'd on other grounds sub nom. Bratton v. City of Detroit, 704 F.2d 878, vacated on rehearing, 712 F.2d 222 (6th Cir.1983).
In short, I do not think that Sun’s cloudy answer sufficed — if such was its intent at all — to put the Davises on fair notice that Sun objected to the Davises’ maintenance of separate state and federal actions. A useful comparison can be found in Diversified Foods, Inc. v. First Nat’l Bank of Boston, 985 F.2d 27, 29 (1st Cir.1993), where, in answering the complaint in the successive federal suit, the defendants “included as a defense the assertion that the borrowers ‘have improperly split their causes of action, having previously filed in another court another complaint arising out of the same transaction or series of transactions.’ ” The court held that defendants who had presented such a plain objection could hardly be found to have acquiesced in the split claim.
The prejudice to the Davises is obvious. If they had perceived such an objection, then they could have repaired to state court before the entry of judgment, seeking to amend their complaint to include a RCRA count. Or they could have asked the district court to strike the defense, and mustered arguments at. that time in favor of exclusive federal jurisdiction.
The difficulty for the Davises was compounded by the fact that no court, so far as I can tell, had ever held that RCRA cases could be brought in state court, and that numerous courts had either held or assumed that jurisdiction was exclusively federal.2 *615Nor do we find any report of a RCRA citizen action ever being brought in an Ohio court. The district court’s holding on this matter is at least plausible, but I cannot say that resolution of that question is sufficiently plain under Yellow Freightand Holmes to have put the Davises fairly on notice that they could bring the RCRA allegation in Ohio court. See Diversified Foods, 985 F.2d at 31 (recognizing that a good-faith belief in exclusive federal jurisdiction might excuse a failure to bring a federal claim as part of a previous state-court action, but rejecting that excuse where the belief in exclusive federal jurisdiction was “formed in the face of two circuit decisions to the contrary.”) Indeed, if the district court held strong views on this matter, it might have alerted the parties, or perhaps have asked them to brief the issue. As it was, for the year and a half prior to the state court judgment, the Davises’ federal and state claims were pending simultaneously. The district court requested and received periodic status reports. It was reasonable for the Davises to believe that, once the state court proceeding was over, they could proceed with their RCRA complaint in federal court. The record shows (and Sun confirmed at oral argument), that, other than the vague statements in its amended answer, Sun never voiced an objection to the Davises’ splitting of the claims.
Thus, I would hold that the Davises’ RCRA suit was not barred by the application of Ohio’s rule against claim-splitting, and may proceed, I therefore respectfully dissent.
. This court has had occasion to comment on the confusion caused by the use of the broad term "res judicata,” and to "express our hope that future litigants, in the interests of precision and clarity, will formulate arguments which refer solely to issue or claim preclusion and which refrain from using the predecessors of those terms, whose meanings have become so convoluted.” Barnes v. McDowell, 848 F.2d 725, 728 n. 5 (6th Cir.1988).
. See Middlesex County Bd. of Chosen Freeholders v. New Jersey, 645 F.Supp. 715, 719 (D.N.J.1986); Jilot v. Colorado, 944 P.2d 566, 568-69 *615(Colo.App,1996)(unpublished pending appeal). A number of other courts have stated or assumed that RCRA jurisdiction is exclusively federal. Together, the effect of these cases is an emphatic consensus that RCRA jurisdiction is exclusively federal. Yet none of the cases apply with full rigor the analytic framework erected by the Supreme Court in the line of cases beginning with Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981) and culminating in Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990).
The Eighth Circuit has flatly stated that “RCRA places exclusive jurisdiction in federal courts for suits brought pursuant to section 6972(a)(1)....” Blue Legs v. Bureau of Indian Affairs, 867 F.2d 1094, 1098 (8th Cir.1989). Thus, it was not necessary, or even possible, to exhaust certain tribal remedies, as normally required. True, Blue Legs preceded by two years the stringent language of Yellow Freight noted by this court in Holmes. Nonetheless, since Yellow Freight, Blue Legs has repeatedly been cited as good law— though, again, generally without much jurisdictional analysis under Yellow Freight. See, e.g., Fletcher v. United States, 116 F.3d 1315, 1327 (10th Cir.1997); Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1502 (10th Cir.1997); Reservation Tel. Coop. v. Three Affiliated Tribes of the Fort Berthold Reservation, 76 F.3d 181, 185-86 (8th Cir.1996). Other courts have, without citing Blue Legs, reached the same conclusion. See White & Brewer Trucking, Inc. v. Donley, 952 F.Supp. 1306 (C.D.Ill.1997) (Burford abstention inappropriate when federal action in which abstention is sought contains RCRA claims, over which federal courts have exclusive jurisdiction).