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Worth It > Adaptibar > Flashcards

Adaptibar Flashcards

1
Q

Defenses to Strict Products Liability:

A

1) Assumption of the Risk
2) Misuse

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2
Q

Strict Liability in Tort

A

Strict Products Liability

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3
Q

Inadequate/Failure to Warn:

A

A type of Defective Product under Strict Products Liability

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4
Q

Commercial Seller:

A

In the business of selling the product

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5
Q

Strict Products Liability:

A

1) Defective product
2) Sold by commercial seller
3) Foreseeable user
4) Used in manner it was intended

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6
Q

Fitness for a Particular Purpose:

A

• Product only works for particular purpose
Examples:
o Hurricane windows can withstand certain wind
speeds
o Tires can only withstand speed up to a certain
mph
o Phone can only make so many phone calls

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7
Q

Merchantability:

A

Product acted as it should

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8
Q

Products Liability – Breach of Warranty:

A

Promise about product performance

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9
Q

Products Liability – Negligence:

A

Negligence in the chain caused the product to break or not work

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10
Q

Product Liability:

A

• A product breaks or doesn’t work properly • 3 Causes of Action
Negligence
Breach of warranty Strict products liability

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11
Q

Assumption of the Risk:

A
  • Defense to Strict Liability
  • Knew & Appreciated the risk
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12
Q

Abnormally Dangerous Activity:

A

Excavation
• Dynamite
• Toxic Chemicals

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13
Q

Strict Liability:

A

1) Possession of Wild Animals
2) Abnormally Dangerous Activities

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14
Q

Possession of Wild Animals:

A

Non-domesticated animals
• Injury that would normally occur
• Domestic animals with dangerous
propensities

Examples:
Wild animals:
o Lions, tigers, and bears Not Wild animals:
o Dogs and cats

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15
Q

Most warranty questions will test

A

on express warranties

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16
Q

Subject-Matter Jurisdiction:

A

1) Diversity of Citizenship 2) Federal Question

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17
Q

Amount in Controversy:

A
  • Must be in excess of $75K
  • Court must have “legal certainty”
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18
Q

Adding Claims:

A

• Plaintiff can ADD claims if one exceeds $75K
• Single Plaintiff can ADD claims against Single
Defendant to reach $75K

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19
Q

Dismissal for Improper Venue:

A

If the more convenient forum is a foreign country

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20
Q

Transfer by Consent:

A

Both parties must consent

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21
Q

Transfer of Venue – Improper Venue:

A

1) Judge must dismiss OR transfer in the interest of justice
2) Transfer to any district where the case could have originally been brought

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22
Q

Transfer of Venue – Proper Venue:

A

1) Court may TRANSFER to another district
2) For the convenience of parties & interest of
justice
3) Law of original venue will apply

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23
Q

Venue is based on where _ resides.

A

DEFENDANT

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24
Q

Venue – Corporations:

A

1) Principal place of business
2) Any district in state of incorporation

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25
Q

Proper Venue:

A

1) Where any defendant resides, if all defendants reside in same state
2) Where substantial part of events took place
ONLY IF 1 & 2 DON’T APPLY:
3) Where there is Personal Jurisdiction over defendant

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26
Q

Definition – Venue

A

The proper Federal District Court for the case

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27
Q

Remand – Timing:

A

Within 30 DAYS of filing of Notice of Removal
• Defendant has burden to show Removal was
proper

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28
Q

Definition – Remand

A

Plaintiff wants to bring case back to State Court after improper Removal

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29
Q

Multiple Claims:

A

• If one claim is removable, then the entire case can be removed

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30
Q

Diversity Cases:

A

1) Case cannot be removed more than 1 year after start
2) Defendant cannot remove if he is a citizen of forum state

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31
Q

Removal – Timing:

A

• Filed within 30 DAYS of service of Complaint

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32
Q

Who Can Remove:

A

1) Only DEFENDANT may remove 2) ALL defendants must agree

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33
Q

Removal is not allowed for

A

state agencies

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34
Q

Definition – Removal

A

When a State Court case could have originally been brought in Federal Court

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35
Q

Service of Process – Corporations:

A

1) Officer or Designated Agent
2) Anyone of sufficiently high placement
Examples:
Not high placement
o Intern
o Guy in mail room Sufficiently high placement
o Vice President
o Registered Agent o CEO Emeritus

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36
Q

Out-of-State Service of Process:

A

1) Mail
2) Newspaper if no other reasonable way

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37
Q

Proper Ways to Serve Process:

A

1) Personal Service by non-party over 18 2) At Home with person of suitable age 3) First Class Mail
4) Authorized Agent
5) State Law Methods

Remember, don’t get stung by A WASP A - Abode
W - Waiver
A - Agent
S - State method
P - Personal service

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38
Q

Service of Process & Notice:

A

• Method must give adequate NOTICE

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39
Q

100 Mile Bulge Rule:

A

1) Out-of-state service allowed within 100 mile radius
2) Only for out-of-state 3rd party defendants/indispensable parties

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40
Q

Service of Process:

A

1) Only in the state where district court sits OR 2) Anywhere allowed by long-arm statute

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41
Q

Quasi in rem Jurisdiction:

A

• Going after property to satisfy a judgment against an individual

Example:
o Trying to get judgement from Jon by getting his boat

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42
Q

In rem Jurisdiction:

A

• Jurisdiction over an object/property

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43
Q

Minimum Contacts – Corporations:

A
  • Purposeful Availment
  • Systematic & Continuous Activities
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44
Q

Minimum Contacts Standard:

A

1) Suit does not offend traditional notions of Fair Play & Justice
2) Defendant could Reasonably Anticipate litigation

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45
Q

Long-Arm Statute:

A

• Gives courts the power to reach out-of-state persons

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46
Q

If you are in the state for a different proceeding or because of fraud, the court will

A

not be able to get personal jurisdiction

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47
Q

Definition – Personal Jurisdiction:
• In personem
• Ability to bring the individual into court
General Rules:

A

1) Present/ Personally Served 2) Domiciled
3) Consent

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48
Q

Supplemental Jurisdiction & Discretion:

A

Court has DISCRETION to apply
Supplemental Jurisdiction

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49
Q

If defendant is trying to add,

If the plaintiff is trying to add,

A

AdaptiTip
• If defendant is trying to add, generally ok
• If the plaintiff is trying to add, generally not ok

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50
Q

Supplemental Jurisdiction – NOT Allowed:

A

1) Original Plaintiff vs. 3rd Party Defendant 2) Compulsory Joinder
3) Joinder of Defendants
4) Intervention

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51
Q

Supplemental Jurisdiction – Allowed:

A

1) Compulsory Counterclaim
2) Joinder in Compulsory Counterclaim 3) Cross-claim
4) Impleader of 3rd Party Defendants

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52
Q

Diversity Cases:

A

• New party cannot destroy diversity of citizenship

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53
Q

May add claims without subject-matter jurisdiction if they arise from

A

a “common nucleus of facts”

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54
Q

Federal Question Cases:

A

1) Admiralty
2) Maritime
3) Intellectual Property

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55
Q

Federal Issue as a defense is NOT

A

a federal question

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56
Q

Federal Question:

A

1) Plaintiff’s claim must be based on federal law 2) Well-Pleaded Complaint Rule: Federal issue
must be obvious

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57
Q

Joining Parties:

A

• CANNOT join a party just to obtain Diversity

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58
Q

Foreign Citizens:

A

• US Citizen + Foreign Citizen = Diversity • Two Foreign Citizens = NO Diversity

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59
Q

Class Action:

A

One named member must meet $75K

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60
Q

Multiple Plaintiffs (SMJ 75k requirements)

A
  • If Single Plaintiff meets $75K then other plaintiffs can join
  • Cannot join if no Single Claim exceeds $75K
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61
Q

Preliminary Injunction:

A

1) Notice & Hearing required 2) IRREPARABLE HARM

62
Q

Temporary Restraining Order:

A

1) No notice
2) IMMEDIATE IRREPARABLE HARM 3) Expires in no more than 14 days

63
Q

Final Pretrial Conference:

A

1) Court MAY hold conference
2) IF there is a conference, Court MUST issue
Pretrial Order
3) ONLY modified to prevent
“Manifest Injustice”

64
Q

Scheduling Conference:

A

1) Court MUST have conference to limit time 2) Must issue SCHEDULING ORDER within 90
days of filing complaint
3) CANNOT be modified unless “Good Cause”

65
Q

Conference of Parties:

A

1) Court MUST have conference
2) Parties MUST submit Discovery plan

66
Q

You cannot depose the same person more than once without

A

the court’s permission

67
Q

Interrogatories:

A
  • Only to a PARTY
  • Written/Answered in writing • Limit = 25
68
Q

Request to Admit:

A
  • Written request
  • Conclusively established
69
Q

Request to Produce:

A

Documents in the other side’s possession, control, custody

70
Q

Physical/Mental Exam:

A

1) Must be at issue 2) Court Order
3) Good Cause

71
Q

Object to a Request:

A

Information not relevant

72
Q

Protective Order:

A

• Stop Discovery for embarrassment, harassment, undue burden

73
Q

Order to Compel:

A

• Party not complying with Discovery

74
Q

What information is admissible at trial?

A

• Discoverable information is admissible at trial

75
Q

Conference of Parties:

A

1) Court MUST have conference
2) Parties MUST submit Discovery plan

76
Q

Scheduling Conference:

A

1) Court MUST have conference to limit time 2) Must issue SCHEDULING ORDER within 90
days of filing complaint
3) CANNOT be modified unless “Good Cause”

77
Q

Final Pretrial Conference:

A

1) Court MAY hold conference
2) IF there is a conference, Court MUST issue
Pretrial Order
3) ONLY modified to prevent
“Manifest Injustice”

78
Q

DISCOVERY
Discoverable:

Work Product:

Work Product – Discoverable:

Absolute Immunity:

EXPERT – Testifying:

EXPERT – NOT Testifying:

Duty to Supplement:

Depositions:

A

DISCOVERY
Discoverable:
1) Not privileged
2) Relevant
3) “Proportional to needs of the case”
Work Product:
• Generally immune from discovery
• Documents prepared in anticipation of trial
Work Product – Discoverable:
1) Substantial need
2) Cannot obtain without UNDUE HARDSHIP
Absolute Immunity:
• Mental impressions
• Conclusions
• Legal opinions/theories
EXPERT – Testifying:
1) MUST provide ID
2) Expert must prepare report
EXPERT – NOT Testifying:
• Discoverable only in “EXCEPTIONAL CIRCUMSTANCES”
Duty to Supplement:
• Duty to supplement incomplete or wrong information
• Must be done in a timely manner
Depositions:
• Party or non-party
• Written or oral
• Non-party by subpoena • Limit = 10

79
Q

Definition – Rule 11
Attorney signs to best of “knowledge, information, and belief” there is a basis for the claim

A

Key Words:
• Warranted by existing law • Evidentiary support
• No improper purpose

80
Q

Counterclaim:

A

• Defendant raises a claim back at the plaintiff

81
Q

Compulsory Counterclaim:

A

1) Same transaction or occurrence 2) Supplemental jurisdiction

82
Q

Permissive Counterclaim:

A

1) NOT same transaction or occurrence 2) Needs independent jurisdiction

83
Q

Permissive Joinder:

A

1) Single transaction or occurrence 2) Common questions of law/fact

84
Q

Compulsory Joinder:

A

• Party needs to be joined or unfair
1) Necessary Party = Impair Interest
• If cannot join due to jurisdiction –
Case may STILL PROCEED
2) Indispensable Party = Prejudice
• If cannot join due to jurisdiction –
Case must be DISMISSED

85
Q

Class Certification:

A

1) Size
2) Common Question
3) Typical
4) Representation/Conflict

86
Q

Types of Class Actions:

A
  • B1 = Impairment of Interests
  • B2 = Injunctive Relief
  • B3 = Common Question (the superior method)
87
Q

Opting Out:
• B1 & B2 =
• B3 =

A

Opting Out:
• B1 & B2 = Members MAY NOT OPT OUT
vs.
• B3 = Member MAY OPT OUT

88
Q

Notice & Class Actions:
• B1 & B2 =
• B3 =

A

Notice & Class Actions:
• B1 & B2 = Notice NOT required, in discretion
of Court
• B3 = Notice to ALL members

89
Q

Diversity in Class Actions:

A

1) Citizenship of the named representatives 2) One member must meet $75K+
OR the sum of claims is $5 million

90
Q

Appealability of Class Actions:

A

• If Certification of Class is denied – May be appealed

91
Q

Intervention as of Right:

A

1) Interest in property/transaction 2) Interest is impaired
3) NO Court permission required

92
Q

Permissive Intervention:

A

1) Claim/defense has common question of law/fact
2) Court permission IS required

93
Q

Interpleader:

A

• 1 party owes something to 2 or more people

94
Q

Statutory Interpleader:

A

1) Nationwide Service
2) ANY 2 claimants can be diverse
3) $500 or more at stake
4) Deposit money/property in Court/bond

95
Q

Rule Interpleader:

A

1) NO Nationwide Service
2) Complete Diversity between claimant & ALL
opponents
3) $75K+ requirement
4) NOT required to deposit money

96
Q

Impleader:

A

• Adding a 3rd party defendant who owes part or all of claim

97
Q

Cross Claim:

A

1) Co-party
2) Same transaction or occurrence 3) Actual damage

98
Q

AMENDMENT
Amendment as of Right:

Relation Back:

Relation Back (for PARTIES):

A

AMENDMENT
Amendment as of Right:
• Once within 21 days of service of pleading
After 21 Days:
• Need Court’s permission
• “When justice so requires”
Relation Back:
• “Arose out of the same conduct, transaction, or occurrence”

Relation Back (for PARTIES):
1) Same conduct, transaction, or occurrence 2) Within 90 days of filing the party had notice 3) Knew/should have known but for mistake
of ID

99
Q

Complaint:

Elements of the Complaint:

Specific Complaint:

Answer:

Affirmative Defenses – Pled in Answer:

A

Complaint:
• Filing of Complaint commences Statute of Limitations
• Service of the Complaint within 90 days
Elements of the Complaint:
1) Statement of Jurisdiction
2) Statement of Facts (not theory) 3) Demand for Relief
Specific Complaint:
• Fraud & Special Damages
Answer:
1) Signed by lawyer
2) Whatever is not denied is admitted 3) Served within 21 days of service of
Complaint
Affirmative Defenses – Pled in Answer:
• Contributory Negligence • Statute of Frauds
• Statute of Limitations
• Illegality
• Duress

100
Q

Larceny:

A

1) Trespassory Taking
2) Carrying Away
3) Personal Property of Another
4) With Intent to Permanently Deprive

101
Q

Example: Continuing Trespass

A

o Wrongful taking without permission
o No intent to steal at the time of taking
o Can turn into a Larceny if you decide to keep it

102
Q

Burglary:

A

Burglary:

1) Breaking & Entering
2) Dwelling of Another
3) At Nighttime
4) With Intent to Commit a Felony

103
Q

Example:
Breaking & Entering

Not a Breaking

Not a Dwelling of Another

A

Example:
Breaking & Entering
o Picking the lock
o Cutting the alarm
o Shattering the glass
o Any enlarging of the door or window
o Entering by force or fraud
o Any part of your body goes across the threshold Not a Breaking
o A wide-open door or window
Not a Dwelling of Another
o Office
o Store
o Your own home

104
Q

Burglary – Intent:

A

Burglary – Intent:
• Intent must be present at the moment of Breaking
• Felony does NOT have to be actually committed

105
Q

Larceny merges into

A

Larceny merges into Robbery

106
Q

Robbery:

Example:
Robbery

A

Robbery:
1) Trespassory Taking
2) Carrying Away
3) Property of Another
4) By Force, Intimidation, or Fear
Example:
Robbery
o Robbing a bank by holding up a gun and saying,
“Give me the money”
o Threatening someone with a sniper far away that
he can’t see Not a Robbery
o Holding someone up with a water pistol, and he laughs but gives you the money anyway

107
Q

Assault:

A

Assault:
• Intent to commit a Battery
• Intent to place another in Imminent Fear • Words are NOT enough

108
Q

Larceny by Trick:

A

Larceny by Trick:
• Obtain POSSESSION to property by False Statement
• Use as the default crime before False Pretense or Embezzlement

109
Q

False Pretenses:

Larceny by Trick

A

False Pretenses:
• Obtain TITLE to property by False Statement
Example:
Larceny by Trick
o Jon lies to you to get your car and drives it
around for a year False Pretenses
o Jon lies to you that he has to drive 100 mph to get to the hospital. You give him title and registration to your car
o Jon tricks you into signing the deed of your house over to him
o Jon sells you a fake Rolex

110
Q

Embezzlement:

A

Embezzlement:
1) Lawful Possession of Personal Property 2) Converted for own use
Example:
o You give your watch to a pawn shop to hold for 90
days. The shop sells it the next day

111
Q

Receiving Stolen Property:

A

Receiving Stolen Property:

1) Physical Possession of Stolen Property 2) Knowledge it was Stolen
3) Intent to keep

112
Q

Forgery:

A

Forgery:

1) Fraudulent making of a False Document 2) With Legal Significance
3) Intended Wrongful Use

113
Q

Accomplice Liability:

Example:

A

Accomplice Liability:
1) Specific Intent to achieve the crime
2) Aid or Abet the completion of the crime
Example:
o Driving someone to the crime
o Acting as the look-out
o Buying the gun used in the crime

114
Q

Crimes Accomplice is Guilty of:

A

Crimes Accomplice is Guilty of:
• Accomplice is guilty of ALL underlying crimes completed
• If the crime isn’t completed, Accomplice is only guilty of accomplice liability

115
Q

Accessory Before the Fact:

A

Accessory Before the Fact:
• Not present at scene of crime

116
Q

Accessory After the Fact:

Example:

A

Accessory After the Fact:
1) Felony Completed
2) Knowledge of Completed Crime 3) Aid to avoid Arrest/Conviction
Example:
o Hiding evidence
o Sneaking you out of town

117
Q

GENERAL INTENT CRIMES

A

GENERAL INTENT CRIMES
1) No Specific Intent required 2) The Act itself is enough
Battery:
• Unlawful application of Force
Arson:
• Malicious Burning of the Dwelling of Another • Malicious = Reckless

118
Q

Definition – Reckless

A

Definition – Reckless
Knew or should have known the harm could occur

119
Q

Common Law: Burning your own home is
• Modern Trend:

A

Common Law: Burning your own home is not arson
• Modern Trend: Will give you a statute or it will be obvious they are testing arson

120
Q

Rape:

A

Rape:

1) Unlawful Sexual Intercourse 2) By a Male with a Female
3) Without Consent

121
Q

Kidnapping:

A

Kidnapping:
• Unlawful Restraint of a Person’s Freedom by Force

122
Q

If a question asks about Attempted Kidnapping, it is an ___ question, not a Kidnapping question

A

If a question asks about Attempted Kidnapping, it is an Attempt question, not a Kidnapping question

123
Q

Contracts:

Legal Remedy:

Expectation Damages:

Formula - Expectation Damages:

A

LEGAL REMEDIES Legal Remedy:
• Money damages
Expectation Damages:
• Put plaintiff in position if K had been performed
• “Foreseeable with reasonable certainty”
Formula - Expectation Damages:
• (K price) – (Money received/saved) + (Costs)

124
Q

Reliance Damages:
• Put plaintiff in position he would have been prior to K
• Unreimbursed costs
• NO Expectation Damages
Example:
o Jon was going to teach out in California, and now he has unreimbursed costs because he relied on you telling him to come out to California on June 1 to teach a class

A

Reliance Damages:
• Put plaintiff in position he would have been prior to K
• Unreimbursed costs
• NO Expectation Damages
Example:
o Jon was going to teach out in California, and now he has unreimbursed costs because he relied on you telling him to come out to California on June 1 to teach a class

125
Q

Reliance Damages:

Example:

A

Reliance Damages:
• Put plaintiff in position he would have been prior to K
• Unreimbursed costs
• NO Expectation Damages
Example:
o Jon was going to teach out in California, and now he has unreimbursed costs because he relied on you telling him to come out to California on June 1 to teach a class

126
Q

Restitution:

A

Restitution:
• Getting back any value you already gave • Contract PARTIALLY performed
• Measured by market value of the services

127
Q

Consequential Damages:

A

Consequential Damages:
• Foreseeable costs because of breach

Example:
o You don’t buy Jon’s house, now he has to pay
to put it back on the market

128
Q

Liquidated Damages:

A

Liquidated Damages:
• Determined at time of contract • Enforced if reasonable
• Not a penalty

129
Q

Quantum Meruit:

A

Quantum Meruit:
The Breaching Party can recover: • (Reasonable value of services) –
(Damages incurred)

130
Q

UCC Seller Damages:

A

UCC Seller Damages:
If Buyer breaches, Seller can recover:
• Goods Delivered & Accepted = (K price)
• Some/None goods Delivered = (K price) –
(Market price)
• Goods Resold = (K price) – (Resale price)
• Additionally, Incidental Damages

131
Q

Lost Volume Seller:

A

Lost Volume Seller:
• Seller can sell as many widgets as possible
Lost Profits:
• (Expected profit) + (Costs) – (Payment for resale)

132
Q

UCC Buyer Damages:

A

UCC Buyer Damages:
If the Seller breaches, Buyer can recover:
• Purchased replacement goods = (K price) –
(Cost of new goods)
• NO replacement goods = (K price) – (Market
price at time of breach)
• (Incidental/Consequential Damages) –
(Expenses saved)

133
Q

Equitable Remedies:

A

EQUITABLE REMEDIES
Equitable Remedies:
• Recoverable when remedy at law is inadequate
Specific Performance:
• Court will make a party perform • For UNIQUE items

134
Q

Injunction:

Employment contracts

Rescission:

A

Injunction:
• To “prevent irreparable harm” • Employment contracts
• Trade secrets
• Proprietary information
Example:
o You work at McDonald’s, and you are going to
move to Burger King and talk about the secret sauce
Rescission:
• No meeting of the minds • Mistake
• Misrepresentation
• Duress
• Lack of capacity

135
Q

Default Judgment:

A
136
Q

Voluntary Dismissal:

A
137
Q

Involuntary Dismissal:

A
138
Q

Involuntary Dismissal – Usually with

Prejudice:

A
139
Q

JUDICIAL BIAS

Challenge for Cause:

A
140
Q

JUDGMENTS

Default Judgment:

  • One party fails to plead or defend
  • Court enters default judgment

Voluntary Dismissal:

  • Plaintiff voluntarily dismisses
  • Before Answer/Summary Judgment
  • First time without prejudice

Involuntary Dismissal:

• COURT dismisses the case

Involuntary Dismissal – Usually with

Prejudice:

1) Failure to State a Claim
2) Failure to Obey Court Order
3) Failure to Prosecute

A

JUDGMENTS

Default Judgment:

  • One party fails to plead or defend
  • Court enters default judgment

Voluntary Dismissal:

  • Plaintiff voluntarily dismisses
  • Before Answer/Summary Judgment
  • First time without prejudice

Involuntary Dismissal:

• COURT dismisses the case

Involuntary Dismissal – Usually with

Prejudice:

1) Failure to State a Claim
2) Failure to Obey Court Order
3) Failure to Prosecute

141
Q

JUDICIAL BIAS

Challenge for Cause:

Grounds for Recusal:

Judge MUST recuse himself and parties CANNOT waive if:

A

JUDICIAL BIAS

Challenge for Cause:

  • The appearance of bias
  • Parties can waive

Grounds for Recusal:

Judge MUST recuse himself and parties CANNOT waive if:

1) Personal knowledge of facts
2) Acted as lawyer with one of the other lawyers
3) Expressed an opinion on merits while in government employment
4) Financial interest in subject matter/party 5) Violates Due Process Rights

142
Q

Involuntary Dismissal – Without Prejudice:

A

1) Lack of Jurisdiction
2) Venue
3) Failure to Join Indispensable Party

143
Q

Res Judicata/Claim Preclusion

Res Judicata – Merger:

Res Judicata – Bar:

Claim Splitting:

Res Judicata does not apply to:

Change of Law:

Privity:

A

Res Judicata/Claim Preclusion

1) Same parties or privity
2) Same transaction or occurrence
3) Judgment on the merits

Res Judicata – Merger:

  • Plainti wins case
  • Claim merges into judgment
  • Cannot sue on same cause of action

Res Judicata – Bar:

  • Plainti loses case
  • Barred from suing on same cause of action

Claim Splitting:

• Plainti cannot SPLIT a claim

Res Judicata does not apply to:

1) Dismissal for lack of jurisdiction
2) Dismissal for improper venue
3) Settlement

Change of Law:

• Once there is a final judgment, you cannot

bring suit again

Privity:

  • Legal or special relationship
  • Res Judicata applies
144
Q

Collateral Estoppel/Issue Preclusion

Collateral Estoppel does not apply:

Necessary to Judgment:

Collateral Estoppel typically has ____ people

Defendant CANNOT use Collateral Estoppel to

____________

A

Collateral Estoppel/Issue Preclusion

1) Same issue
2) Final judgment
3) Issue necessary to judgment

Collateral Estoppel does not apply:

1) Settlement
2) Default Judgment

Necessary to Judgment:

• Party preclusion is asserted against must have

had full & fair opportunity to litigate

Collateral Estoppel typically has THREE people

Defendant CANNOT use Collateral Estoppel to

prevent NEW plaintiff from bringing suit

145
Q

HYPO

Jon sues Bob. Jon loses. Now, Jon wants to sue

Fred. Can Fred use Collateral Estoppel to prevent Jon from suing?

A
146
Q

Defensive Use of Collateral Estoppel:

A

Defensive Use of Collateral Estoppel:

  • Same Plaintiff , New Defendant
  • New Defendant can use Collateral Estoppel as

defense

147
Q

HYPO

Jon sues Bob. Jon loses. Now, Fred sues Bob. Can Bob use Collateral Estoppel to prevent Fred from suing him?

A
148
Q

Off…ensive Use of Collateral Estoppel:

A
  • New Plaintiff, Same Defendant
  • New Plaintiff cannot use Collateral Estoppel

against Same Defendant

149
Q

HYPO

Jon sues Bob. Jon wins. Now, Fred wants to sue

Bob. Can Fred use Collateral Estoppel?

A
150
Q

Applicable Preclusion Rule – Diversity Cases: •

A

First case in Federal Court, apply federal

preclusion rule

• First case in State Court, apply the first

jurisdiction’s preclusion rule

151
Q

Full Faith & Credit:

A
152
Q
A

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