C Flashcards
Personal JX two-step analysis?
PJ must fall w/in 1)state statute and 2) satisfy the constitution
con analysis?
does the D have min contacts w/forum so jx does not offend trad notions of fair play and sub justice
factors for con analysis
1) contact 2)relatedness 3) fairness
1) contact factors
1) purposeful availment and 2) forseeability
1) purposeful availment
voluntary act of D reaching out to the forum and contact must result from D targeting forum (can be effects)
purposeful availment examples
(1) Marketing (2) using the roads
(3) establishing a domicile (4) travel
(5) sending a tortious email into the forum (note that the defendant
here need not be physically present in the state); and (6) maintaining an interactive website within the forum may be sufficient for PJ if
the defendant was targeting customers or readers within the forum
2) forseeability
is it forseeable D could be sued in the forum
2) Relatedness
does P’s claim arise from or relate to D’s contact w/ the forum; if yes then specific PJ, if No, general pj
general PJ
if P’s claim does not arise from or relate to D’s contact; D must be athome in the forum or must have registered to do busines in the state and have appointed and agent for service of process there
what if D is served w process in the state?
The
court also has general jurisdiction when she is served with
process in the state
Fairness (specific pj only)
1) burden on D and witnesses 2) states interest 3) plaintiffs interest
Notice= Service of Process (consists of 2 documents)
1) summons and 2) copy of complaint
Who can service process?
non party 18+ person, no ct appointment necessary
Options for service on individual (4)
1) personal service (in hand delivery. 2)substituted service at D’s usual abode on someone suitable age and discretion who resides there
3) service on agent
4) state law methods
service on business org
1) on officer or agent
2) state law methods
service on minor or incompetent
use state law where service is made
SOP on party in foreign country? (5)
A method allowed by international agreement (for example, the
Hague Convention) may be used. Or, if there’s no such agreement on point, the options (subject to the constitutional requirement that the
method must be reasonably calculated to give notice) are: As directed by the American court; or
* Method allowed by the foreign country’s law; or
* Method directed by foreign official in response to a letter of request (letter rogatory) from the American court; or
* Personal service in the foreign country (unless prohibited by its
law); or
* Mail sent by the clerk of the American court, requiring signed
receipt (unless prohibited by the foreign country’s law).
A defendant can waive service of process. To request this waiver:
the
plaintiff mails the defendant a notice and request to waive service.
The plaintiff must include 1) a copy of the complaint and
2) two copies of a
waiver form, with a prepaid means of returning the form (for example,
self-addressed, stamped envelope).
If the defendant executes and
mails the waiver form to the plaintiff within 30 days (60 days if the
defendant is outside the U.S.),
she waives service of process. Waiver
can be used for individuals and entities.
D does not waive ____ by waiving service
defenses
Defendant pays for ___ as penalty for not waiving (unless good cause)
service
Process may be served within the state in which the federal court
sits. It may be served outside that state
if state law allows. That is
why whether we have PJ is the same for federal court as it is for state
court.
D is immune from process while
appearing in another case
SMJ
courts power over the case
state courts have
general SMJ- which means they can hear any kind of case; within the state courts system
two bases for federal SMJ
1) federal question
2) diversity of citizenship
**smj cannot be waived (this is about gov structure)
diversity of citizenship reqs
1) right kind of litigant ( alienage = non us citizen and citizen of US state) &
2) amount in controversy exceeding 75K
who are the right kind of litigants
completely diverse litigants; no SMJ if any P is citizen of same states as any D (determined when case is filed)
No Fed SMJ? No Fed Q?
state court
a perm resident is not a citizen of a state for _____ purposes
diversity
if tht perm resident is domiciled in the same state as an adverse party
JX is withdrawn
citizenship of a human
domicile; but one domicile only
how to change domicile
1) phys presence in new place &
2) subj intent to make new place domicile
what is the citizenship of a corporation
1) any state or country where incorporated and
2) the one state or country where PBB is
PBB (nerve center)
where the coporations managers direct, coordinate, and control the business
an unincorporated association takes on the citizenship of
all members
a representative of decedent, minor, or incompetent takes on the citizenship of
person represented
amount in controversy; whats not included
prejudgment interest not included (interest as part of claim included)
good faith allegation by P usually controls UNLESS
to a legal certainty $75k+ not possible
aggregation
adding two or more claims to meet the amount req
a single P may aggregate all claims against a single D; multiple P’s ____
cant do this
look to _____ of claim for joint claim
total value
amount in controversy is determined by looking at value of relief to (injunction cost/worth)
plaintiff or defendant
fed cts decline actions for (4)
1) divorce 2)alimony 3)child custody 4)probate
genuine change of citizenship before action commenced creates diversity even if ___
that was the motive
fed Q
1) claim arises from fed law
2) determined by well-pleaded complaint
determining well pleaded complaint?
ask: is the plaintiff enforcing a federal right
removal
procedure allowing defendant to move case from state court to federal court
remand
send back to state court
standard for removal
case filed in state ct could have been brought in fed ct- diversity or federal question reqs met
how is a case removed?
def files a notice of removal in fed ct
timing of removal
30 days after service of paper showing case is removable (usually this is service of process- which includes a copy of the complaint)
who joins in removal?
all D’s served w process must join
Earlier served D may join later served D’s removal even if
30 day period expired
What cases can be removed
federal question, diversity of citizenship (SMJ)
limits on removal based on diversity (dont remove if…)
1) any D is citizen of forum state
2) one year limit
more limits on removal (timing)
1) 30 days to remove from the time it becomes removable
2) no removal more than 1 year after case filed (usually)
1 year rule exception - one year restriction does not apply if
P originally joined D to prevent removal (tough to show)
removal venue; case must be removed to
federal court embracing the state court **doesnt matter if not proper venue under venue statutes
remand- P must move to remand within __ days if defect other than lack of SMJ (fed Q or diversity)
30 days
30 day limit _____ apply if fed court has SMJ
does not apply;
if removal was improper; bc there was no SMJ then
theres no time limit on ordering remand
for cases based solely on diversity jx supplemental jx is ______ for claims by the P against persons made parties under the impleader rules when use of supplemental jx would be contrary to reqs for diversity
not available
supplmental jx
gets CLAIMS into a federal case (smj; diversity or fed Q)
step 1 for supplemental jx
look for SMJ in additional claim; no need for supplemental if claim SMJ over additional claim
step 2 for supplemental jx
must arise from common nucleus of operative fact as claim in existing fed ct case (SAME TRANSACTION OR OCCURRENCE ALWAYS SATISFIES COMMON NUCLEUS TEST)
Limitation on supplemental jx
P’s cannot invoke supplemental jx in diversity case
step 1 of an Erie question
is there a federal law on point that directly conflicts w state law? (IF SO, U APPLY THE FED LAW SO LONG AS ITS VALID)
If its a FRCP its presumptively valid if
it’s arguably procedural (& they are)
step 2 of an erie question
Fed judge must apply state law if issue is substantive and no applicable fed law
the 5 clearly substantive issues
1) conflict or choice of law rules
2) elements of a claim or defense
3) statute of limitation
4) tolling of statute of limitations
5) standard of granting a new trial bc the jury’s award was excessive or inadequate
step 3 of erie
determine whether issue is substantive; 1) outcome determinative 2)balance interest factors- does fed or state sys have a strong interest in having its rule applied
3)avoid forum shopping- if fed ct ignores state law on this issue will it cause parties to flock to fed ct
two possible venues
1) any district where all D’s reside
or
2) where substantial part of claim arose or substantial part of property is located
residental nuance- venue is proper in any district where D resides if
all D’s reside within state (D’s have to reside in same state for residential venue)
transactional venue
substantial part of claim arise in the district (substantial part does not equal all- more than 1 district can satisfy req)
for residental venue a business resides in
the district where it is subject to PJ
transfer from a proper venue
convenience of the parties and witnesses in the interests of justice
transfer and effect on choice of law
tranferee court usually must apply choice of law rules of transferor court
forum selection clause
1) ord enforced if not unreasonable 2) unless public interest factors say otherwise (unlikely) 3) transferee court applies own choice of law rules
if venue improper ct will
1) transfer if in interest of justice or 2) dismiss
forum non conveniens
center of gravity is elsewhere in another judicial system // stay or dismissal (transfer not possible) (p will sue in tht other ct)
pleading contents
1) grounds for SMJ (diversity, alienage, fed Q)
2) short and plain statement showing P is entitled to relief
3) demand for relief
P must plead sufficient facts to support
a plausible claim
matters req more detail or specificity (3)
1) fraud 2) mistake 3)special damages
Response: D must respond by motion or answer w/in ___
21 days or (60 if D waived service)
12(e)
motion for more definite statement
12(f)
motion to strike (anyone can)
12(b)
motion to dismiss
waivable rule 12(B) defenses
1) lack of personal jx 2)improper venue 3)improper process 4)improper service of process
nonwaivable 12b defenses
1) failure to state a claim
2) failure to join an indispensable party
3) lack of SMJ never waived
motion to dismiss denied? now what?
D has to answer w/in 14 days
D’s answer/pleading
response to allegations in complaint
1) admit
2) deny
3) lack sufficient information
failure to deny an allegation= admission //exception??
the amount of damages
d’s answer cont’d
raise affirmative defenses; waived if not asserted in answer
plaintiff has right to amend complaint once no later than
21 days after the defendant serves her first rule 12 response
defendant has right to amend his answer once no later than ___ days after serving it
21 days
amendments after time to amend expires
with ct permission if justice so requires:
factors:
allowed unless delayed too long,
will prejudice the other party or
would be futile
amended pleading relates back
amended pleading treated as if filed on date that original pleading filed
amendment changing defendant
1) amendment concerns same conduct, transaction, or occurrence
2) defendant had knowledge of case so wont be prejudiced by amendment
3) defendant knew or should have known that P made a mistake
rule 11 certification; certifying that to best of your knowledge and belief, after reasonable inquiry, these things are true: (3)
1) paper not presented for an improper purpose
2) legal contention warranted by law or good argument law should be changed
3) factual contentions and denials have evidentiary support
Joinder reqs
authorized by rule; smj (diversity, alienage, fed q)
claim joinder by plaintiff
P may join as many claims as P has against D
must be SMJ (fed q, diversity, alienage)
Can join multiple Ps or Ds if:
1) arise from same transaction or occurrence and
2) raise a common q of law or fact
necessary and indispensable parties (3 steps)
1) is absentee (nonparty) necessary/req’d
2) can absentee be joined
3) can case proceed w/out absentee
Is absentee necessary (3 test)
1) can complete relief be accorded among existing parties
2) will absentee’s interest be harmed (if not brought in) (stock example)
3) will d be subject to multiple or inconsistent liability
Can absentee be joined? Feasible if:
personal jx over absentee and
fed smj over claim by or against absentee
if absentee cannot be joined, court must:
proceed or dismiss entire case
can case proceed w/out absentee? court considers whether
1) alt forum available
2) actual harm to absentee is likely
3) court can shape relief to avoid any harm
indispensable party
party needed for action to proceed rather than be dismissed
counterclaim
any claim back against complaining party- usually by defendant against plaintiff
-response req’d w/in 21 days of service
two kinds of counterclaims 1) compulsory counterclaim
- arises from same transaction or occurrence
- use it or lose it
2) permissive counterclaim
- does not arise from same T/O
- not lost- can sue in separate case
-SMJ is often the issue (fed q, alienage, diversity)
cross claim?
claim against coparty arising from same T/O
impleader (3rd party claim)
-brings in new party
-for indemnity or contribution
intervention?
A nonparty absentee uses intervention to bring herself into the
case. She chooses to come in either as a plaintiff to assert a claim
or as a defendant to defend a claim. The court may realign the intervening party if it thinks the absentee came in on the “wrong” side.
Application to intervene must be “timely.” Intervention can be “of
right” or “permissive.”
intervention of right
If the absentee’s interest may be harmed if she is not joined, and
that interest is not adequately represented by the current parties,
intervention is “of right.”
permissive intervention
If the absentee’s claim or defense and the pending case have at least
one common question of law or fact, intervention would be permissive and discretionary with court. Permissive intervention is usually
allowed unless it would cause delay or prejudice to someone.
interpleader
An interpleader suit permits a person/
stakeholder to require two or more adverse claimants to the stake to
litigate among themselves to determine which, if any, has the valid claim
to it. There are two interpleader procedures in the federal courts: Rule
22 interpleader and section 1335 interpleader (statutory interpleader).
class action
A class action is a case in which representative(s) (“rep(s)”) sue on
behalf of a group
4 reqs for class actions
1) numerosity
2) commonality
3) typicality
4) adequate representative
type 1 - prejudice
class treatment necessary to prevent harm or prejudice
-very rare
type 2 - injunctive or declaratory relief
d treated class members alike
-cannot seek damages
type 3- common q or damages
-common qs predominate over indiv ones
-class action is superior method for handling dispute
certification by court
-ct defines class, claims, issues, and defenses
-ct appoints counsel
-certification is immediately appealable
class action fairness act; CAFA grants SMJ separate from diversity of citizenship jurisdiction.
It lets a federal court hear a class action if:
- There are at least 100 members;
- Any class member, not just the representative, is of diverse citizenship from any defendant; and
- The aggregated claims of the class exceed $5 million.
Also, any one defendant, even an in-state defendant, may remove the
case from state to federal court. All this makes it easier for interstate
class actions to go to federal court.
-local actions stay local
initial disclosure
names, numbers, and addresses of ppl w discoverable info if might be used to support claims or defenses
documents (ESI, tangible things) if might be used to support claims or defenses
more initial disclosures… (2)
computation of damages
insurance coverage
penalty for failure to disclose
party cant use undisclosed material unless harmless
expert witnesses (4)
1) consulting experts need not be disclosed absent exceptional circumstances
2) testifying experts must be disclosed
3)written report by expert must be disclosed
4) draft reports and communication are protected work product
pre-trial disclosures
-30 days before trial
-identities of witnesses
-documents
-no surprises
assuming that no court order
or stipulation provides otherwise, a party cannot send discovery
requests to another party until after the Rule 26(f) conference. Minor
exception:
requests to produce can be served earlier (once 21 days
has passed since service of process).
Such a request is treated as
though it was served at the Rule 26(f) conference.
Generally, the cost
of responding to discovery is borne by the responding party.
depo
live testimony of parties or non parties, under oath, given in response to questions by counsel
subpoenas or notice of depo
non parties must be served w subpoena
notice of depo sufficient for parties
subpoena duces tecum
subp. req deponent to bring material to deposition
depo of org
When the party is suing an organization, she may “notice” a deposition of an organization, describing the facts that she wants to
discover in the deposition.
The organization then must designate a
person(s) to testify on that matter.
limits on depo; unless court orders otherwise: (3)
1) no more than 10 depo’s
2) cannot depose same person twice
3)cannot exceed one 7 hour day
interrogatories
written qs to be answered in writing under oath
1) only to parties
2) limited to 25 (unless ct order or stipulation)
3) must answer in 30 days
request to produce
A request to produce asks a party to make available for review and
copying documents or things, including electronically stored information (“ESI”), or to permit entry on designated property to inspect,
measure, etc.
medical exams
1) ct order req’d
2) parties only
3) health must be in controversy
4) good cause
request for admission; written request asking opponent to admit facts
1) must respond w/in 30 days
2) response: deny, deny knowledge, object, or admit
3) reasonable inquiry must be made before answering
scope of discovery
party can discover anything relevant to claim or defense and proportional to needs of case
protective orders (ESI)
1) d can move for protective order or object to discovery of ESI
2) undue costs are considerations for ESI
3) ct may allocate costs if P shows good cause to obtain despite costs
work product
material prepared in anticipation of litigation
discovery of work product
1) must show substantial need and undue hardship
2) opinion work product cannot be discovered
withholding discovery
1) must claim protection expressly
2) must prepare privilege log
protective order
1) must try to work out w/o ct involvement
2) ct can deny and order discovery, limit discovery, or permit discovery w/in terms
partial failure to respond
1) requesting party moves for order compelling discovery
2) opposing party fails to respond to court order
3)merits sanctions including contempt
4) but no contempt for refusal of medical exam
total failure to respond =
merits sanctions
merits sanctions
1) establishment order
2) strike claims or pleadings
3) disallow evidence
4)dismissal or default
failure to preserve ESI
ct orders measures to cure harm
preliminary injunction
preserves status quo until trial
TRO
preserves status quo until preliminary injunction
TRO ex parte
ct does something w/o notice to other party; P swears under oath tht they will suffer immediate and irreparable harm ; The applicant’s lawyer certifies in writing her efforts to give oral or
written notice to the defendant or the defendant’s lawyer (or why
such notice should not be required in this case)
contents of TRO
A TRO must state its terms specifically, describe in detail what the
defendant must do (or refrain from doing), state why it was issued,
and state why the threatened injury to the plaintiff was irreparable.
TRO can’t exceed
28 days (14 days plus 14 day extension)
treated like a preliminary injunction after 28 days
preliminary injunction factors
1) irreparable harm
2) likely to win on the merits
3) balance of hardships favors you
4) public interest
additional reqs for TRO
the
applicant must post a bond.
describe in detail what the defendant must do or refrain from doing, and state why it was issued.
In granting or denying the preliminary injunction, the court must
make specific findings of fact and separate conclusions of law.
voluntary dismissal w/o court permission
p may withdraw case w/o ct order if D has not filed answers or motion for summary judgment
voluntary dismissal w ct permission
1) p makes motion for voluntary dismissal
2) ct discretion to grant or deny
3) first voluntary is w/o prejudice
4) second voluntary dismissal extinguishes claim
default; p may seek d’s default if D doesnt respond to complaint within:
21 days after service of process
60 days if process waived
-not automatic
-P must move for entry of default
-D can respond late until default on record
default judgment
clerk can enter default judgment if: (4)
1) d made no response (has not appeared)
2) claim for sum certain
3) P gives affidavit of amount owed
4) D is not a minor or incompetent
-hearing and judge’s discretion if clerk cant enter -recovery limited by amount in complaint
relief from default
good cause
viable defense
motion to dismiss for failure to state claim - rule 12b6
ct looks only to allegation of facts in complaint
do these facts-if true- state a plausible claim
FRCP 56 summary judg
weeds out cases where trial is not needed bc theres no dispute of material fact
pleadings to support summary judgment
not considered evidence unless verified
admissions
rule 26 conference
at least 21 days before the
court’s scheduling order, the parties “meet and confer” to discuss
production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information.
They must
present to the court a detailed discovery plan no later than 14 days
after the Rule 26(f) conference
contents of discovery plan
The plan must include views and proposals on timing, issues about
discovery of ESI, including how it will be produced and any problems
retrieving it (for example, deleted files), etc.
scheduling order is a
roadmap of case to trial
motion in limine
pretrial motion outside the presence of the jury to decide whether the jury should hear certain evidence
judge or jury?
actions at law-> jury
actions in equity-> judge
mixed suits->
facts underlying damages tried first b4 jury
facts relating only to equity claim are tried to judge
jury must be demanded w/in ___ days of last pleading showing jury triable issue
14
jury selection
called voir dire
unlimited challenges for cause
generally 3 peremptory challenges
-must be used in race and gender neutral way
of jurors in fed ct
A minimum of
six and a maximum of 12, unless the parties agree otherwise.
Generally, all jurors participate in the verdict unless a juror is
excused for good cause, and the verdict must be unanimous unless
the parties agree otherwise.
judge may hold ______ to discuss jury instructions
off the record
objection to jury instructions
1) judge must tell parties what instructions it will give and what instructions were refused
2) party must object on the record
3) and objection must be before jury charged
three types of verdicts
1) general= who wins and what relief
2) special verdict= jury answers questions, no bottom line (judge will give bottom line)
3) combo general and special= general w written questions
Entry of judgment
If the jury returns a general verdict, the clerk of the court will enter
the judgment.
If the jury returns a special verdict (or general verdict
with written questions), and the answers are consistent with each
other and with the verdict, the judge approves the judgment and the
clerk enters it.
Inconsistency Between General Verdict and Written
Questions; In a case involving general verdict with written questions, if the
answers are consistent with each other but inconsistent with the
verdict, the court may
enter an appropriate judgment consistent with
the answers. (Or it can tell the jury to reconsider or order a new trial.)
If the answers are inconsistent with each other and one or more is
inconsistent with the general verdict
no judgment may be entered.
(Again, the court may order the jury to reconsider or order a new
trial.)
Motion for Judgment as a Matter of Law
(“JMOL”); If the judge grants JMOL,
the case will not go
to the jury—the judge grants the motion and enters judgment. The
motion is based upon evidence presented at trial.
standard for JMOL
reasonable people could not disagree on result
-ct views evidence in light most favorable to non moving party
motion can be made after the opposing party has been heard on the issue
renewed motion for JMOL
RJMOL comes up after trial, after jury returns verdict
same standard as JMOL
timing for RJMOL
28 days after entry of judgment
req for motion
a motion JMOL at trial must have been made
new trial motion
same timing as RJMOL;
its a do over bc something at trial reqs it
A party must move for a new trial within 28 days of the
judgment. Some reasons a new trial may be granted are:
1) The judge gave an erroneous jury instruction;
2) New evidence was discovered that could not have been discovered before with due diligence;
3) Misconduct was committed by a juror, party, or lawyer, etc.;
4) The judgment is against weight of the evidence (serious error of
judgment); and
5) Damages are inadequate or excessive
Remittitur is playing hardball with the plaintiff.
1) damage figure shocks the conscience
2) P remits a portion of damages or undergoes new trial
3) both state and fed ct
Additur is playing hardball with the defendant
1) damage figure must shock the conscience
2) add to damages or D undergoes a new trial
3) not in fed ct
A defendant can submit formal offers to settle the case up to
14 days
before trial.
The benefit is that the rule contains cost-shifting provisions that apply when a plaintiff rejects an offer to settle and doesn’t
do as well at trial as the offer.
losing party has right to appeal if
the cts order is a final judgment (wrapping whole case on merits)
notice of appeal
d must file notice of appeal in the district ct no later than 30 days after entry of judgment
appeal of injunctions and TROS
orders related to injunctions may be appealed
TRO is not injunction
TRO extended beyond 28days becomes preliminary injunction (appealable)
interlocutory appeals act
allows for appeal of nonfinal order if trial judge certifies controlling issue of law w substantial ground for differing opinions
collateral order doctrine; The appellate court has discretion to hear an appeal on an issue if
that issue:
Is distinct from the merits of the case;
Involves an important legal question; and
Is essentially unreviewable if parties await a final judgment.
mutliple claims or parties; When more than one claim is presented in a case, or when there are
multiple parties, the district court may
expressly direct entry of a final
judgment as to one or more of them if it makes an express finding
that there is no just reason for delay.
questions of law reviewed de novo
no deference given to trial judge on questions of law
clearly erroneous standard used for
judges determinations of fact
jurys finding of fact will be affirmed unless
reasonable ppl could not have made the finding
judges rulings on discretionary matters reviewed under
an abuse of discretion standard
when an appellate court reviews a trial courts ruling on a post trial motion for JMOL (including a renewed one) it employs a ____ standard
de novo
when an appellate court reviews a trial courts denial of a motion for new trial it employs a ___standard
more deferential standard, reversing the trial courts denial only when there is a clear showing of an abuse of discretion
If Case 1 and Case 2 are in different judicial systems (for example,
state and federal courts or courts in different U.S. states), the court in
Case 2 applies
the preclusion law of the judicial system that decided
Case 1.
claim preclusion req 1
same plaintiff v same defendant
claim preclusion req 2
final judgment on merits
Unless the court said the judgment was “without prejudice” when
entered, any judgment is “on the merits” unless it was based on
a lack of jurisdiction (both personal and subject matter), improper
venue, or a failure to join an indispensable party. This is true even if
there was no adjudication in Case 1.
claim preclusion req 3
same claim
maj view: same transaction or occurrence
minority primary rights view: sep claims for personal injury and property damage
Issue preclusion is narrower than claim preclusion. Here, an issue was
litigated in Case 1. The same issue is then presented in Case 2. But if
issue preclusion applies, the issue cannot be relitigated in Case 2. It
is deemed established in Case 2, thereby streamlining the scope of
litigation in Case 2. There are five requirements for issue preclusion:
1)Case 1 Ended in Valid, Final Judgment on the
Merits
2)Same Issue Actually Litigated and Determined in
Case 1
3) Issue Was Essential to Judgment in Case 1 (finding on that issue is reason for the judgment)
4)issue preclusion can be used only against previous party (or in privity)
5) nonmutual issue preclusion: When someone who
was not a party to Case 1 tries to use issue preclusion in Case 2, it is
called “nonmutual” issue preclusion.
non mutual defensive issue preclusion
The person using preclusion was not a party to Case 1 and is the
defendant in Case 2.
(ok as long as the party had a full chance to litigate in case 1)
nonmutual offensive issue preclusion
The person using preclusion was not a party to Case 1 and is the
plaintiff in Case 2. (most states say no, unless fair)
issue preclusion fairness factors
1) The party to be bound had a full and fair opportunity to litigate in
Case 1;
2) The party to be bound had a strong incentive to litigate Case 1.
(For example, if Case 1 was for a small sum, the party has less
incentive to litigate the action fully unless she knew further, larger
cases might be forthcoming.);
3) The party asserting issue preclusion could have easily joined to
Case 1. (For example, if you could have easily joined Joey’s Case
1, a court might not let you use the Case 1 judgment against Joey.);
and
4) There have been no inconsistent findings on the issue. So if there
had been multiple cases about Joey’s wreck, and sometimes Joey
was found negligent and sometimes not, it would be unfair to let
you get issue preclusion on a negligence finding.
