Appellate Review

Question 1

Appeals & Final Judgement Rule

Answer 1

Multiple Claims and/or Parties

• Trial court may direct entry of final judgment as to one or more party and/or claim, which is then appealable

Timing

• Must file notice of appeal in Trial Court within 30 days of entry of final judgment

Final Judgment Rule

• Appeal can only be taken from a final judgment, meaning trial court has made an ultimate decision on the merits of the entire case
  
  • Without final judgment or basis for interlocutory appeal, appellate court lacks Jxd

Analysis

• A final judgment is one that determines the merits of the entire case.
• To determine whether an order is a final judgment, ask “after making the ruling does the trial judge have anything left to do on the merits of the case?”
  
  • If court still has something to do — it is not a final judgment
    
    • it is an “interlocutory order”
    • Note - Removal
      
      • Remand (sending to state court after case was removed to fed court) is not appealable to court of appeals
  • If it is a final judgment — you file your notice of appeal
    
    • In District Court
    • Within 30 days after entry of judgement

Exceptions

Appeal without final judgment may be allowed for orders involving:

• Injunctions
  
  • if entitled to interlocutory appeal
• Class Actions
  
  • may be appealed in discretion of Court of Appeals
• Debatable Qs of Controlling Law

Question 2

Interlocutory (Non-Final) Review

Answer 2

If District Court’s order is not a final judgment, it might be appealable based upon one of these doctrines

(A) Orders Reviewable as of Right
Interlocutory orders reviewable as of right:

• Injunction (Preliminary or Permanent) Orders — i.e., orders granting, modifying, or refusing preliminary or permanent injunctions.
• NOT TROs
  
  • Includes Preliminary Injunction — But not TRO orders granting, modifying, or refusing a temporary restraining order
  • TRO is good for a maximum of 14 days, renewable for up to another 14 days.

(B) Interlocutory Appeals Act

• Allows appeal of non-final order if:
• (a) the district judge certifies that an order involves
  
  • (i) a controlling issue of law (not fact)
  • (ii) as to which there is substantial ground for difference of opinion
  • (iii) immediate appeal from the order may materially advance the ultimate termination of the litigation
• (b) the court of appeals agrees to hear it
• Party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal.
• Appeal is discretionary

(C) “Collateral Order” Doctrine
Appellate court has discretion to hear ruling on an issue if that issue:

• (1) Is distinct from the merits of the case
• (2) Involves an important legal question; and
• (3) Is essentially unreviewable if parties await a final judgment

(D) Multiple Claims & Parties

• When more than one claim is presented in a case, or when there are multiple parties
• District Court may expressly direct entry of a final judgment as to one or more of them if the court
  
  • makes an express finding that there is no just reason for delay.

(E) Class Action

• Court of Appeals has discretion to review an order granting or denying Certification of class action.
• Timing
  
  • Must seek review at the court of appeals within 14 days of order.
• If Court of Appeals grants, it doesn’t stay the proceedings at District court
  
  • Unless the Court of Appeals or District Court says so

(F) Extraordinary Writ — (Mandamus or Prohibition)

• An original proceeding (filed) in the Court of Appeals — to compel the district judge to make or vacate a particular order
• Not a substitute for appeal
• Available only if the District Court is violating a clear legal duty

Question 3

Interlocutory Appeals Act

Answer 3

Allows appeal of non-final order if:

• (a) the district judge certifies that an order involves
  
  • (i) a controlling issue of law (not fact)
  • (ii) as to which there is substantial ground for difference of opinion
  • (iii) immediate appeal from the order may materially advance the ultimate termination of the litigation
• (b) the court of appeals agrees to hear it

Party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal.
Appeal is discretionary

__________________________________________

Interlocutory (Non-Final) Review

If District Court’s order is not a final judgment, it might be appealable based upon one of these doctrines

(A) Orders Reviewable as of Right
Interlocutory orders reviewable as of right:

• Injunction (Preliminary or Permanent) Orders — i.e., orders granting, modifying, or refusing preliminary or permanent injunctions.
• NOT TROs
  
  • Includes Preliminary Injunction — But not TRO orders granting, modifying, or refusing a temporary restraining order
  • TRO is good for a maximum of 14 days, renewable for up to another 14 days.

(C) “Collateral Order” Doctrine
Appellate court has discretion to hear ruling on an issue if that issue:

• (1) Is distinct from the merits of the case
• (2) Involves an important legal question; and
• (3) Is essentially unreviewable if parties await a final judgment

(D) Multiple Claims & Parties

• When more than one claim is presented in a case, or when there are multiple parties
• District Court may expressly direct entry of a final judgment as to one or more of them if the court
  
  • makes an express finding that there is no just reason for delay.

(E) Class Action

• Court of Appeals has discretion to review an order granting or denying Certification of class action.
• Timing
  
  • Must seek review at the court of appeals within 14 days of order.
• If Court of Appeals grants, it doesn’t stay the proceedings at District court
  
  • Unless the Court of Appeals or District Court says so

(F) Extraordinary Writ — (Mandamus or Prohibition)

• An original proceeding (filed) in the Court of Appeals — to compel the district judge to make or vacate a particular order
• Not a substitute for appeal
• Available only if the District Court is violating a clear legal duty

Question 4

Orders Reviewable as of Right

Answer 4

Exception to Final Judgement Rule

Interlocutory orders reviewable as of right:

• Injunction (Preliminary or Permanent) Orders — i.e., orders granting, modifying, or refusing preliminary or permanent injunctions.
• NOT TROs
  
  • Includes Preliminary Injunction — But not TRO orders granting, modifying, or refusing a temporary restraining order
  • TRO is good for a maximum of 14 days, renewable for up to another 14 days.

__________________________________________

Interlocutory (Non-Final) Review

(B) Interlocutory Appeals Act

Allows appeal of non-final order if:

• (a) the district judge certifies that an order involves
  
  • (i) a controlling issue of law (not fact)
  • (ii) as to which there is substantial ground for difference of opinion
  • (iii) immediate appeal from the order may materially advance the ultimate termination of the litigation
• (b) the court of appeals agrees to hear it

Party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal.
Appeal is discretionary

(C) “Collateral Order” Doctrine
Appellate court has discretion to hear ruling on an issue if that issue:

• (1) Is distinct from the merits of the case
• (2) Involves an important legal question; and
• (3) Is essentially unreviewable if parties await a final judgment

(D) Multiple Claims & Parties

• When more than one claim is presented in a case, or when there are multiple parties
• District Court may expressly direct entry of a final judgment as to one or more of them if the court
  
  • makes an express finding that there is no just reason for delay.

(E) Class Action

• Court of Appeals has discretion to review an order granting or denying Certification of class action.
• Timing
  
  • Must seek review at the court of appeals within 14 days of order.
• If Court of Appeals grants, it doesn’t stay the proceedings at District court
  
  • Unless the Court of Appeals or District Court says so

(F) Extraordinary Writ — (Mandamus or Prohibition)

• An original proceeding (filed) in the Court of Appeals — to compel the district judge to make or vacate a particular order
• Not a substitute for appeal
• Available only if the District Court is violating a clear legal duty

Question 5

“Collateral Order” Doctrine

Answer 5

Appellate court has discretion to hear ruling on an issue if that issue:

• (1) Is distinct from the merits of the case
• (2) Involves an important legal question; and
• (3) Is essentially unreviewable if parties await a final judgment

HYPO

• 11A provides that states and “arms of states” are immune from suit in federal court.
  
  • (Not just immune from damages, but immune from being sued at all.)
• P sues CHP for damages.
• CHP claims it is an “arm of the State” and thus immune from suit.
• District court rejects the argument and orders CHP to litigate.

Can CHP try to appeal this ruling as a collateral order?

• Yes
• Why does it meet (3)?
  
  • Bcas immunity from suit is lost if SHD must wait until final judgement to appeal — (3) wouldn’t be met if it were just immunity from damages / liability

__________________________________________

Interlocutory (Non-Final) Review

If District Court’s order is not a final judgment, it might be appealable based upon one of these doctrines

(A) Orders Reviewable as of Right
Interlocutory orders reviewable as of right:

• Injunction (Preliminary or Permanent) Orders — i.e., orders granting, modifying, or refusing preliminary or permanent injunctions.
• NOT TROs
  
  • Includes Preliminary Injunction — But not TRO orders granting, modifying, or refusing a temporary restraining order
  • TRO is good for a maximum of 14 days, renewable for up to another 14 days.

(B) Interlocutory Appeals Act

Allows appeal of non-final order if:

• (a) the district judge certifies that an order involves
  
  • (i) a controlling issue of law (not fact)
  • (ii) as to which there is substantial ground for difference of opinion
  • (iii) immediate appeal from the order may materially advance the ultimate termination of the litigation
• (b) the court of appeals agrees to hear it

Party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal.
Appeal is discretionary

(D) Multiple Claims & Parties

• When more than one claim is presented in a case, or when there are multiple parties
• District Court may expressly direct entry of a final judgment as to one or more of them if the court
  
  • makes an express finding that there is no just reason for delay

(E) Class Action

• Court of Appeals has discretion to review an order granting or denying Certification of class action.
• Timing
  
  • Must seek review at the court of appeals within 14 days of order.
• If Court of Appeals grants, it doesn’t stay the proceedings at District court
  
  • Unless the Court of Appeals or District Court says so

(F) Extraordinary Writ — (Mandamus or Prohibition)

• An original proceeding (filed) in the Court of Appeals — to compel the district judge to make or vacate a particular order
• Not a substitute for appeal
• Available only if the District Court is violating a clear legal duty

Question 6

Appeals

Multiple Claims & Parties

Answer 6

• When more than one claim is presented in a case, or when there are multiple parties
• District Court may expressly direct entry of a final judgment as to one or more of them if the court
  
  • makes an express finding that there is no just reason for delay

HYPO

• P sues D
• D files a counterclaim against P
• Court enters Partial Summary Judgment in favor of D on P’s claim
  
  • This is not appealable as a final judgment because the counterclaim is still pending.
• Could the district court expressly direct entry of a final judgment on P’s claim against D and allow appeal of that issue now?
  
  • Yes, if it also expressly finds that there is no just reason for delay

__________________________________________

Interlocutory (Non-Final) Review

If District Court’s order is not a final judgment, it might be appealable based upon one of these doctrines

(A) Orders Reviewable as of Right
Interlocutory orders reviewable as of right:

• Injunction (Preliminary or Permanent) Orders — i.e., orders granting, modifying, or refusing preliminary or permanent injunctions.
• NOT TROs
  
  • Includes Preliminary Injunction — But not TRO orders granting, modifying, or refusing a temporary restraining order
  • TRO is good for a maximum of 14 days, renewable for up to another 14 days.

(B) Interlocutory Appeals Act

Allows appeal of non-final order if:

• (a) the district judge certifies that an order involves
  
  • (i) a controlling issue of law (not fact)
  • (ii) as to which there is substantial ground for difference of opinion
  • (iii) immediate appeal from the order may materially advance the ultimate termination of the litigation
• (b) the court of appeals agrees to hear it

Party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal.
Appeal is discretionary

(C) “Collateral Order” Doctrine
Appellate court has discretion to hear ruling on an issue if that issue:

• (1) Is distinct from the merits of the case
• (2) Involves an important legal question; and
• (3) Is essentially unreviewable if parties await a final judgment

(E) Class Action

• Court of Appeals has discretion to review an order granting or denying Certification of class action.
• Timing
  
  • Must seek review at the court of appeals within 14 days of order.
• If Court of Appeals grants, it doesn’t stay the proceedings at District court
  
  • Unless the Court of Appeals or District Court says so

(F) Extraordinary Writ — (Mandamus or Prohibition)

• An original proceeding (filed) in the Court of Appeals — to compel the district judge to make or vacate a particular order
• Not a substitute for appeal
• Available only if the District Court is violating a clear legal duty

Question 7

Class Action

Appeals

Answer 7

• Court of Appeals has discretion to review an order granting or denying Certification of class action.
• Timing
  
  • Must seek review at the court of appeals within 14 days of order.
• If Court of Appeals grants, it doesn’t stay the proceedings at District court
  
  • Unless the Court of Appeals or District Court says so

__________________________________________

Interlocutory (Non-Final) Review

If District Court’s order is not a final judgment, it might be appealable based upon one of these doctrines

(A) Orders Reviewable as of Right
Interlocutory orders reviewable as of right:

• Injunction (Preliminary or Permanent) Orders — i.e., orders granting, modifying, or refusing preliminary or permanent injunctions.
• NOT TROs
  
  • Includes Preliminary Injunction — But not TRO orders granting, modifying, or refusing a temporary restraining order
  • TRO is good for a maximum of 14 days, renewable for up to another 14 days.

(B) Interlocutory Appeals Act

Allows appeal of non-final order if:

• (a) the district judge certifies that an order involves
  
  • (i) a controlling issue of law (not fact)
  • (ii) as to which there is substantial ground for difference of opinion
  • (iii) immediate appeal from the order may materially advance the ultimate termination of the litigation
• (b) the court of appeals agrees to hear it

Party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal.
Appeal is discretionary

(C) “Collateral Order” Doctrine
Appellate court has discretion to hear ruling on an issue if that issue:

• (1) Is distinct from the merits of the case
• (2) Involves an important legal question; and
• (3) Is essentially unreviewable if parties await a final judgment

(D) Multiple Claims & Parties

• When more than one claim is presented in a case, or when there are multiple parties
• District Court may expressly direct entry of a final judgment as to one or more of them if the court
  
  • makes an express finding that there is no just reason for delay

(F) Extraordinary Writ — (Mandamus or Prohibition)

• An original proceeding (filed) in the Court of Appeals — to compel the district judge to make or vacate a particular order
• Not a substitute for appeal
• Available only if the District Court is violating a clear legal duty

Question 8

Extraordinary Writ

Answer 8

Extraordinary Writ — (Mandamus or Prohibition)

• Exception to Final Judgement Rule
• An original proceeding (filed) in the Court of Appeals — to compel the district judge to make or vacate a particular order
• Not a substitute for appeal
• Available only if the District Court is violating a clear legal duty

__________________________________________

Interlocutory (Non-Final) Review

If District Court’s order is not a final judgment, it might be appealable based upon one of these doctrines

(A) Orders Reviewable as of Right
Interlocutory orders reviewable as of right:

• Injunction (Preliminary or Permanent) Orders — i.e., orders granting, modifying, or refusing preliminary or permanent injunctions.
• NOT TROs
  
  • Includes Preliminary Injunction — But not TRO orders granting, modifying, or refusing a temporary restraining order
  • TRO is good for a maximum of 14 days, renewable for up to another 14 days.

(B) Interlocutory Appeals Act

Allows appeal of non-final order if:

• (a) the district judge certifies that an order involves
  
  • (i) a controlling issue of law (not fact)
  • (ii) as to which there is substantial ground for difference of opinion
  • (iii) immediate appeal from the order may materially advance the ultimate termination of the litigation
• (b) the court of appeals agrees to hear it

Party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal.
Appeal is discretionary

(C) “Collateral Order” Doctrine
Appellate court has discretion to hear ruling on an issue if that issue:

• (1) Is distinct from the merits of the case
• (2) Involves an important legal question; and
• (3) Is essentially unreviewable if parties await a final judgment

(D) Multiple Claims & Parties

• When more than one claim is presented in a case, or when there are multiple parties
• District Court may expressly direct entry of a final judgment as to one or more of them if the court
  
  • makes an express finding that there is no just reason for delay

(E) Class Action

• Court of Appeals has discretion to review an order granting or denying Certification of class action.
• Timing
  
  • Must seek review at the court of appeals within 14 days of order.
• If Court of Appeals grants, it doesn’t stay the proceedings at District court
  
  • Unless the Court of Appeals or District Court says so

Question 9

Standards of Review

by the Court of Appeals

Answer 9

Harmless Error

• Not every error (even an error of law) requires reversal on appeal.
• No reversal is required if the error is harmless

(A) Law Qs

• De Novo Review
  
  • no deference to what district judge decided on Qs of law
• EX — District judge gave a jury instruction that put the burden of proof at trial on the wrong party.
  
  • Court of Appeals will review the instruction de novo — because the content of a jury instruction is a question of law (e.g., burden)

(B) Fact Qs

(1) Jury

• Affirm unless Reasonable people couldn’t have made that same finding
  
  • viewing the evidence in the light most favorable to affirming the jury’s verdict

(2) Bench Trials
* Trial judge’s findings of fact will not be disturbed on appeal unless they were “Clearly Erroneous.”

• But — Credibility of Witnesses — must give due regard to the trial judge’s determination of credibility of the witnesses
  
  • EX — In a bench trial, P and D are the only witnesses. P testifies that the traffic light was red and D testifies that the light was green. (Absolutely contradictory testimony). There are no other witnesses or evidence. Judge makes findings of fact in favor of P.
  • Court of Appeals unlikely to reverse — because it must give due regard to the trial judge’s determination of credibility of the witnesses

(C) Mixed Qs of Law & Fact

• Reviewed De Novo
• It is often difficult to determine whether Q is purely factual, purely legal, or mixed
• Generally speaking, whether a set of facts meets a legal definition is considered to be a mixed Q
  
  • Ex — whether the use of copyrighted material is “fair use” under copyright law

(C) On Discretionary Matters

• Abuse of Discretion
  
  • judge’s ruling will be affirmed unless is it plainly wrong or without an appropriate basis
• Discretionary Matters (many things…) whether to
  
  • grant a motion to amend pleadings
  • allow permissive intervention
  • consolidate or sever cases

Question 10

• D moves for Summary Judgment, which is supported by overwhelming admissible evidence that D did nothing wrong.
• The court denies the motion.
• D appeals that decision to the court of appeals.

What Result?

Answer 10

The Appeal is Dismissed

This isn’t a Final Judgement

• The cases is still in court – judge still has something to do on the merits of the case (actually try the case)
• Denial of SJM — not a final judgement

Question 11

P sues D

• The case proceeds through discovery and to trial.
• Jury returns a verdict for P and the court enters judgment for P based upon the verdict.
• A week later, D moves for a new trial.
  
  • The court grants the motion for new trial.
  • P appeals that decision to the court of appeals.

What Result?

Answer 11

Appeal Dismissed

This isn’t a Final Judgement

• Judge still has something to do on the merits of the case (rehear the case)

Question 12

P sues D

• The case proceeds through discovery and to trial.
• Jury returns a verdict for P and the court enters judgment for P based upon the verdict.
• A week later, D moves for a new trial.
  
  • The court denies the motion for new trial.
  • D appeals that decision to the court of appeals.

What Result?

• (a) Can D appeal?
• (b) If so, what does D do?

Answer 12

(a) Can D appeal?

• Yes — D can appeal
• Denial of a motion for a New Trial is a final judgement.
  
  • There is nothing left for judge to do on the merits of the case.
  • The case is over and there is no new trial.

(b) If D can appeal, what does D do?
* D files a Notice of Appeal in the District Court within 30 days of the denial of the new trial

Question 13

Preclusion

Choice of Law (What Law is Applied)

Answer 13

If Case 1 and Case 2 are in different judicial systems (e.g., state & federal / other state), the court in Case 2 applies the preclusion law of the judicial system that decided Case 1

Example

• Case 1 is litigated in Federal Court in CA. Case 2 is litigated in NY state court
  
  • What preclusion law does the state judge in Case 2 use to determine whether there is claim or issue preclusion?
    
    • Federal Law — preclusive effect of a federal judgement is determined by Federal Common Law
• If Case 1 were litigated in CA state court, the court in Case 2 would apply CA law to determine whether there is claim or issue preclusion

Question 14

Claim Preclusion — Res Judicata

Answer 14

• Can only sue on a claim once
  
  • one case in which to vindicate all rights to relief for that claim
• Claim preclusion is an affirmative defense — should be raised in D’s answer

REQUIREMENTS:

• Same Configuration of Parties
• Same Claim
• Final Judgement on the Merits

(i) Case 1 and Case 2 were brought by the same Claimant against the same Defendant
* i.e., has to be the same parties in the same configuration (side of the V)
(ii) Case 1 ended in a Valid Final Judgment ON THE MERITS

• Unless the court said otherwise when it entered the judgment, any judgment is “on the merits”
  
  • Case is final even if it is being appealed
• Exception — (not on merits) if judgement was based on
  
  • (a) Jxd
  • (b) Venue
  • (c) Indispensable Parties

(iii) Case 1 and Case 2 asserted the “Same Claim”

• Majority View (including Federal law — so if in fed court)
  
  • a claim is any right to relief arising from a transaction or occurrence (T/O)
    
    • i.e., even if not previously raised, claim can be precluded if it is sufficiently related to prior claims
• Minority View — Primary Rights Theory
  
  • there are separate claims for property damage vs personal injuries because those are different primary rights (claim is the injury)

Question 15

• Case 1 — P sues D.
  
  • Default judgment is entered for P
• Case 2 — P sues D in another court asserting the same claim asserted in Case 1.
  
  • D argues that Case 2 should be dismissed under claim preclusion.
    What Result?

Answer 15

Suit Dismissed based on Claim Preclusion (Res Judicata)

• Case 1 was a Valid Final Judgement “On the Merits”
• bcas it wasn’t based on
  
  • (a) Jxd
  • (b) Venue
  • (c) Indispensable Parties
• You don’t need formal ajudication for a judgement to be “on the merits”

_________________________________________

• Can only sue on a claim once
  
  • one case in which to vindicate all rights to relief for that claim
• Claim preclusion is an affirmative defense — should be raised in D’s answer

Requirements

• Same Configuration of Parties
• Same Claim
• Final Judgement on the Merits

(i) Case 1 and Case 2 were brought by the same Claimant against the same Defendant
* i.e., has to be the same parties in the same configuration (side of the V)
(ii) Case 1 ended in a Valid Final Judgment ON THE MERITS

• On the Merits, General Rule:
• Unless the court said otherwise when it entered the judgment, any judgment is “on the merits”
  
  • Case is final even if it is being appealed
• Exception — (not on merits) if judgement was based on
  
  • (a) Jxd
  • (b) Venue
  • (c) Indispensable Parties

(iii) Case 1 and Case 2 asserted the “Same Claim.”

• Majority View (including Federal law — so if in fed court)
  
  • a claim is any right to relief arising from a transaction or occurrence (T/O)
• Minority View — Primary Rights Theory
  
  • there are separate claims for property damage vs personal injuries because those are different primary rights (claim is the injury)

Question 16

• A and B are involved in a car collision and each is injured
• Case 1 — A sues B — the case is litigated and goes to final judgment
• Case 2 — B sues A to recover for his injuries from the same crash
  
  • A moves for Summary Judgment because Case 2 is barred by claim preclusion. Is it?

Answer 16

• No — requirement (i) isn’t met
  
  • both need to be brought by the same Claimant against the same Defendant
• But Case 2 might still be dismissed
  
  • Compulsory Counterclaim Rule — In A sued B, he had a claim against an opposing party that arose from same T/O

_______________________________________

• Can only sue on a claim once
  
  • one case in which to vindicate all rights to relief for that claim
• Claim preclusion is an affirmative defense — should be raised in D’s answer

REQUIREMENTS:

• Same Configuration of Parties
• Same Claim
• Final Judgement on the Merits

(i) Case 1 and Case 2 were brought by the same Claimant against the same Defendant
* i.e., has to be the same parties in the same configuration (side of the V)
(ii) Case 1 ended in a Valid Final Judgment ON THE MERITS

• On the Merits, General Rule:
• Unless the court said otherwise when it entered the judgment, any judgment is “on the merits”
  
  • Case is final even if it is being appealed
• Exception — (not on merits) if judgement was based on
  
  • (a) Jxd
  • (b) Venue
  • (c) Indispensable Parties

(iii) Case 1 and Case 2 asserted the “Same Claim”

• Majority View (including Federal law — so if in fed court)
  
  • a claim is any right to relief arising from a transaction or occurrence (T/O)
• Minority View — Primary Rights Theory
  
  • there are separate claims for property damage vs personal injuries because those are different primary rights (claim is the injury)

Question 17

• Case 1 — A sues B for personal injuries sustained in the auto collision. A valid final judgment on the merits is entered
• Case 2 — A sues B for property damage from the same crash
• B moves for Summary Judgment claiming that Case 2 is barred by claim preclusion. Is it?

Answer 17

Maybe……

• Reqs (i) and (ii) are met
• For (iii) — “Same Claim” — We need to know what preclusion law is being applied
  
  • Majority View — Yes — both cases asserted the claim because they were about the same T/O
  • Minority View — No — personal injury and property damage are different primary rights

_________________________________________

• Can only sue on a claim once
  
  • one case in which to vindicate all rights to relief for that claim
• Claim preclusion is an affirmative defense — should be raised in D’s answer

REQUIREMENTS:

• Same Configuration of Parties
• Same Claim
• Final Judgement on the Merits

(i) Case 1 and Case 2 were brought by the same Claimant against the same Defendant
* i.e., has to be the same parties in the same configuration (side of the V)
(ii) Case 1 ended in a Valid Final Judgment ON THE MERITS

• Unless the court said otherwise when it entered the judgment, any judgment is “on the merits”
  
  • Case is final even if it is being appealed
• Exception — (not on merits) if judgement was based on
  
  • (a) Jxd
  • (b) Venue
  • (c) Indispensable Parties

(iii) Case 1 and Case 2 asserted the “Same Claim”

• Majority View (including Federal law — so if in fed court)
  
  • a claim is any right to relief arising from a transaction or occurrence (T/O)
• Minority View — Primary Rights Theory
  
  • there are separate claims for property damage vs personal injuries because those are different primary rights (claim is the injury)

Question 18

Terminology Used to Describe Effect

of Claim Preclusion

Answer 18

When the Claimant wins the earlier lawsuit, the cause of action is said to have been “Merged” into the judgment.

When D wins, the claimant is said to be “Barred” by the earlier adverse judgment.

Both terms simply mean that the claimant cannot sue again on the same cause.

Question 19

Issue Preclusion — Collateral Estoppel

Answer 19

• Prevents relitigation of particular issues of Fact or Law that were actually litigated and previously determined
• Narrower than Claim Preclusion
  
  • Doesn’t preclude the whole claim necessarily, just the same issue
  • Issue must have been Actually Litigated
    
    • c.f. Claim Preclusion — only requires opportunity to litigate
• *REQUIREMENTS:**
• *(1) Final Judgment on the Merits**
• Case 1 ended in a Valid Final Judgment on the Merits

(2) Same Issue

(a) Issue was Actually Litigated & Determined
* Same issue was actually litigated and determined in Case 1
(b) Issue was Essential to the Judgment

• i.e., finding on this issue is the basis for the judgment
  
  • judgment would have been different in Case 1 absent litigation of this issue
• Must be clear how the issue was decided by the original trier of fact
• *(4) Asserted Against Someone — who**
  (a) W__as an Actual Party to Case 1, OR
  (b) is in “Privity” with a party
• “Privity” means that a party to Case 1 represented someone who wasn’t a party to Case 1
  
  • Ex — Class action, where Rep represents members, those members are bound even if they were not parties
  • Rule is bcas of DP
• *(5) Who Can Assert Issue Preclusion? Split**
  (a) Mutual
• Asserted by Someone
  
  • Who WAS a Party to Case 1
  • (or represented by a party)
• ALL Courts Allow

(b) Non-Mutual

• Asserted by Someon
  
  • Who WASN’T a Party to Case 1
  • (or represented by a party)

(i) Defensive Use of Prior Judgment

• D (not a party in Case 1) seeks to prevent P from relitigating an issue P lost in Case 1 against different party
• Allowed if party against whom issue preclusion is asserted had a Full Chance to Litigate the Issue in Case 1
  
  • e.g., D in second case can preclude P from relitigating an issue lost to another D in prior case
  • Rule in Fed & most states

(ii) Offensive Use of Prior Judgment

• P (not a party in Case 1) seeks to prevent D from relitigating issue that D previously lost in Case 1 against different party.
• Rarely allowed
• Court will allow only if deemed fair after balancing factors:
  
  • (1) party against whom prior judgment is asserted had full and fair opportunity to litigate
  • (2) party could foresee multiple suits being filed
  • (3) issue preclusion was unavailable in prior action
  • (4) no inconsistent judgments on the record

Question 20

Case 1 — P sues D for Negligence

• Assume that under applicable law, Contributory Negligence would bar P from recovery.
• D asserts the affirmative defense of contributory negligence.
• The case is tried and the jury makes the express finding that P was contributorily negligent.
• Judgment is entered for D

Is the finding on P’s negligence “Essential” to Case 1?

• I.e., such that it will preclude relitigation of the issue in Case 2? (Issue Preclusion)

Answer 20

Yes — It is why D won the judgment

• Under contributory negligence, once P was found negligent, D had to win

__________________________________________

Issue Preclusion — Collateral Estoppel

• Prevents relitigation of particular issues of Fact or Law that were actually litigated and previously determined
• Narrower than Claim Preclusion
  
  • Doesn’t preclude the whole claim necessarily, just the same issue
  • Issue must have been Actually Litigated
    
    • c.f. Claim Preclusion — only requires opportunity to litigate
• *REQUIREMENTS:**
• *(1) Final Judgment on the Merits**
• Case 1 ended in a Valid Final Judgment on the Merits

(2) Same Issue

(a) Issue was Actually Litigated & Determined
* Same issue was actually litigated and determined in Case 1
(b) Issue was Essential to the Judgment

• i.e., finding on this issue is the basis for the judgment
  
  • judgment would have been different in Case 1 absent litigation of this issue
• Must be clear how the issue was decided by the original trier of fact
• *(4) Asserted Against Someone — who**
  (a) W__as an Actual Party to Case 1, OR
  (b) is in “Privity” with a party
• “Privity” means that a party to Case 1 represented someone who wasn’t a party to Case 1
  
  • Ex — Class action, where Rep represents members, those members are bound even if they were not parties
  • Rule is bcas of DP
• *(5) Who Can Assert Issue Preclusion? Split**
  (a) Mutual
• Asserted by Someone
  
  • Who WAS a Party to Case 1
  • (or represented by a party)
• ALL Courts Allow

(b) Non-Mutual

• Asserted by Someon
  
  • Who WASN’T a Party to Case 1
  • (or represented by a party)

(i) Defensive Use of Prior Judgment

• D (not a party in Case 1) seeks to prevent P from relitigating an issue P lost in Case 1 against different party
• Allowed if party against whom issue preclusion is asserted had a Full Chance to Litigate the Issue in Case 1
  
  • e.g., D in second case can preclude P from relitigating an issue lost to another D in prior case
  • Rule in Fed & most states

(ii) Offensive Use of Prior Judgment

• P (not a party in Case 1) seeks to prevent D from relitigating issue that D previously lost in Case 1 against different party.
• Rarely allowed
• Court will allow only if deemed fair after balancing factors:
  
  • (1) party against whom prior judgment is asserted had full and fair opportunity to litigate
  • (2) party could foresee multiple suits being filed
  • (3) issue preclusion was unavailable in prior action
  • (4) no inconsistent judgments on the record

Question 21

Roommate, driving your car, is involved in a car collision with Joey. You are vicariously liable for Roommate’s acts

• Case 1 — Joey sues Roommate
  
  • Roommate wins, based on a finding that Joey was negligent, which caused the wreck
  • Court enters final judgment for Roommate
• Case 2 — Joey sues you
  
  • Can you assert Issue Preclusion as to the finding of Joey’s negligence?

Answer 21

Yes

• (1) Did Case 1 end in a valid, final judgment on the merits?
  
  • Yes
• (2) Was the same issue litigated and determined in Case 1?
  
  • Yes — Joey’s negligence
• (3) Was that issue essential to the judgment in Case 1?
  
  • Yes — it is why Roomate won, based on that finding
• (4) Is issue preclusion being asserted against one who was party to Case 1?
  
  • Yes — against Joey - so no DP problem
• (5)(a) Non-mutual Defensive — It is being asserted BY someone (you) who was NOT party to Case 1, and you are D in Case 2.
  
  • Federal law and most states say it’s OK so long as — Joey had a full chance to litigate in Case 1 (nothing suggesting that here)
• (5)(b) Non-Mutual Offensive issue preclusion — the one using it was not a party to Case 1 and is P in Case 2
  
  • Not an issue here

__________________________________________

Issue Preclusion — Collateral Estoppel

• Prevents relitigation of particular issues of Fact or Law that were actually litigated and previously determined
• Narrower than Claim Preclusion
  
  • Doesn’t preclude the whole claim necessarily, just the same issue
  • Issue must have been Actually Litigated
    
    • c.f. Claim Preclusion — only requires opportunity to litigate
• *REQUIREMENTS:**
• *(1) Final Judgment on the Merits**
• Case 1 ended in a Valid Final Judgment on the Merits

(2) Same Issue

(a) Issue was Actually Litigated & Determined
* Same issue was actually litigated and determined in Case 1
(b) Issue was Essential to the Judgment

• i.e., finding on this issue is the basis for the judgment
  
  • judgment would have been different in Case 1 absent litigation of this issue
• Must be clear how the issue was decided by the original trier of fact
• *(4) Asserted Against Someone — who**
  (a) W__as an Actual Party to Case 1, OR
  (b) is in “Privity” with a party
• “Privity” means that a party to Case 1 represented someone who wasn’t a party to Case 1
  
  • Ex — Class action, where Rep represents members, those members are bound even if they were not parties
  • Rule is bcas of DP
• *(5) Who Can Assert Issue Preclusion? Split**
  (a) Mutual
• Asserted by Someone
  
  • Who WAS a Party to Case 1
  • (or represented by a party)
• ALL Courts Allow

(b) Non-Mutual

• Asserted by Someon
  
  • Who WASN’T a Party to Case 1
  • (or represented by a party)

(i) Defensive Use of Prior Judgment

• D (not a party in Case 1) seeks to prevent P from relitigating an issue P lost in Case 1 against different party
• Allowed if party against whom issue preclusion is asserted had a Full Chance to Litigate the Issue in Case 1
  
  • e.g., D in second case can preclude P from relitigating an issue lost to another D in prior case
  • Rule in Fed & most states

(ii) Offensive Use of Prior Judgment

• P (not a party in Case 1) seeks to prevent D from relitigating issue that D previously lost in Case 1 against different party.
• Rarely allowed

Court will allow only if deemed fair after balancing factors:

• (1) party against whom prior judgment is asserted had full and fair opportunity to litigate in Case 1
• (2) party could foresee multiple suits being filed
• (3) one now asserting couldn’t have joined easily in Case 1.
• (4) no inconsistent judgments on the record

Question 22

Roommate, driving your car, is involved in a car collision with Joey. You are vicariously liable for Roommate’s acts

• Case 1 — Joey sues Roommate
  
  • Roommate wins, based on a finding that Joey was negligent, which caused the wreck
  • Court enters final judgment for Roommate
• Case 2 — You sue Joey
  
  • You sue to impose upon Joey liability for damage to your car from the wreck Joey had with Roommate
  • Can you assert Issue Preclusion as to the finding of Joey’s negligence?

Answer 22

Maybe

• (1) Did Case 1 end in a valid, final judgment on the merits?
  
  • Yes
• (2) Was the same issue litigated and determined in Case 1?
  
  • Yes — Joey’s negligence
• (3) Was that issue essential to the judgment in Case 1?
  
  • Yes — it is why Roomate won, based on that finding
• (4) Is issue preclusion being asserted against one who was party to Case 1?
  
  • Yes — against Joey - so no DP problem
• (5) will be a problem – split of authority

Non-Mutual Offensive Issue Preclusion

• Problem bcas Issue Preclusion is
  
  • being asserted “Non-Mutually”
    
    • i.e., against someone who wasn’t a party in Case 1
  • and here, the person asserting it is a Plaintiff.
• Most states today probably say no.
• Modern Trend
  
  • (including Federal law)
  • Permit it if Fair (using 4 factors)
• (1) Joey had a full and fair opportunity to litigate in Case 1.
• (2) Joey had an incentive to litigate strongly in Case 1
  
  • he did bcas he knew that you owned the car, so he didn’t want to lose Case 1 bcas you might then sue him
• (3) You could not have joined easily in Case 1.
  
  • So if you could easily have joined the case by Roommate (it would have been convenient because, e.g., it was in your hometown), the court in Case 2 might not let you use nonmutual offensive issue preclusion.
• (4) There are no consistent findings on this issue.
  
  • So if there had been multiple cases about this wreck, and sometimes Joey was found negligent and sometimes not, it would be unfair to let you get issue preclusion on a negligence finding

__________________________________________

Issue Preclusion — Collateral Estoppel

• Prevents relitigation of particular issues of Fact or Law that were actually litigated and previously determined
• Narrower than Claim Preclusion
  
  • Doesn’t preclude the whole claim necessarily, just the same issue
  • Issue must have been Actually Litigated
    
    • c.f. Claim Preclusion — only requires opportunity to litigate
• *REQUIREMENTS:**
• *(1) Final Judgment on the Merits**
• Case 1 ended in a Valid Final Judgment on the Merits

(2) Same Issue

(a) Issue was Actually Litigated & Determined
* Same issue was actually litigated and determined in Case 1
(b) Issue was Essential to the Judgment

• i.e., finding on this issue is the basis for the judgment
  
  • judgment would have been different in Case 1 absent litigation of this issue
• Must be clear how the issue was decided by the original trier of fact
• *(4) Asserted Against Someone — who**
  (a) W__as an Actual Party to Case 1, OR
  (b) is in “Privity” with a party
• “Privity” means that a party to Case 1 represented someone who wasn’t a party to Case 1
  
  • Ex — Class action, where Rep represents members, those members are bound even if they were not parties
  • Rule is bcas of DP
• *(5) Who Can Assert Issue Preclusion? Split**
  (a) Mutual
• Asserted by Someone
  
  • Who WAS a Party to Case 1
  • (or represented by a party)
• ALL Courts Allow

(b) Non-Mutual

• Asserted by Someon
  
  • Who WASN’T a Party to Case 1
  • (or represented by a party)

(i) Defensive Use of Prior Judgment

• D (not a party in Case 1) seeks to prevent P from relitigating an issue P lost in Case 1 against different party
• Allowed if party against whom issue preclusion is asserted had a Full Chance to Litigate the Issue in Case 1
  
  • e.g., D in second case can preclude P from relitigating an issue lost to another D in prior case
  • Rule in Fed & most states

(ii) Offensive Use of Prior Judgment

• P (not a party in Case 1) seeks to prevent D from relitigating issue that D previously lost in Case 1 against different party.
• Rarely allowed
• Court will allow only if deemed fair after balancing factors:
  
  • (1) party against whom prior judgment is asserted had full and fair opportunity to litigate in Case 1
  • (2) party could foresee multiple suits being filed
  • (3) one now asserting couldn’t have joined easily in Case 1.
  • (4) no inconsistent judgments on the record