Civ Pro: Erie Doctrine Questions and Preclusion and More Flashcards
- A former employee brought a defamation suit against a company he had worked for, alleging that the company had given a false negative reference to his prospective employer. The former employee sued in federal district court, invoking diversity jurisdiction. In the state where the federal court sits, the state common law of defamation requires a plaintiff to prove that the defamatory statement was false. Federal district courts within the state have questioned this element in dicta, on the ground that it is better policy for a defendant to have to substantiate the truth of the statement it made. If the federal court hearing the former employee’s case decides to take the next step and requires the employer to prove the statement was true as an affirmative defense, rather than as an element of the former employee’s claim, would it violate the Erie doctrine?
(A) No, because federal courts have the discretion to alter the elements of a cause of action in a diversity suit based on policy grounds.
(B) No, because federal courts are entitled to create a federal common law of defamation.
(C) Yes, because requiring the plaintiff to prove falsity is superior as a policy matter to requiring the defendant to prove truth.
(D) Yes, because the elements of a state common law claim is a state “law” to which a federal court must defer.
D is correct. The elements of a state-created common law cause of action—here, the state’s defamation law—are “laws” to which federal courts sitting in diversity must defer. Erie Railroad v. Tompkins made this clear when it held that the Rules of Decision Act required federal courts to defer to Pennsylvania’s legal standard for trespasser negligence rather the conflicting federal common law standard. Both Erie and this fact pattern concern the state’s power to craft the requirements of its own substantive law.
A is incorrect because it cuts directly against Erie—federal courts can’t discard a state substantive law whose policy they disagree with.
B is incorrect because the constitution does not grant federal courts this power; under the Erie doctrine, it is reserved for the states.
C is incorrect because the state law’s policy wisdom is irrelevant when the law at issue is clearly substantive and requires deference, as it does here.
An out-of-state citizen sued a police department in a federal diversity case, alleging negligent retention of an officer who had used excessive force against him. Even though discovery established this claim with undisputed evidence, the department refused to settle. Ultimately, the court granted the citizen summary judgment, reasoning he had established all elements of his claim as a matter of law. The court then awarded the citizen attorneys’ fees on the ground that the department had defended the claim in bad faith. Under a 1973 U.S. Supreme Court decision, federal courts have inherent equitable power to award attorneys’ fees for “bad faith” litigation conduct even if no fee-shifting statute applies. The rationale is that the policies supporting the American rule, where each party pays its own attorneys’ fees, don’t apply to parties acting in bad faith, who need to be deterred and punished for such conduct. By contrast, courts in the state where the federal court sits never award attorneys’ fees without a fee-shifting statute.
If the attorneys’ fees award is challenged on appeal, how should the appellate court rule?
(A) The appellate court should uphold the award, because the federal rule authorizing attorneys’ fees for bad faith litigation conduct is procedural in nature.
(B) The appellate court should reverse the award and defer to the state practice of requiring a fee-shifting statute to award attorneys’ fees, because this is a matter of substantive law.
(C) The appellate court should uphold the award, because federal power over attorneys’ fees is absolute.
(D) The appellate court should reverse the award, because the federal rule is unfair.
A is correct. Under the Erie doctrine, when state and federal law conflict in a diversity case and there is no Federal Rule of Civil Procedure on point, the court must analyze whether the state practice is substantive (bound up with state-created rights and obligations) or procedural (a matter of forum and mode). If it is substantive, the state practice must prevail. If it is procedural, the analysis of which practice—federal or state—must be observed turns on the degree of outcome determination if both practices were to remain in place. Here, the issue of attorneys’ fees is not substantive. It’s not appended to any cause of action or other state-created right or obligation. As a matter of form and mode, it’s unlikely that maintaining the federal approach alongside the state’s conflicting practice would be outcome determinative in the Erie “twin aims” sense. Few would choose a forum based on anticipating their own or their opponents’ bad faith conduct. Even if this would result in some degree of litigant inequality—out-of-state litigants would be able to recover fees where in-state litigants would not—it is not of the extreme kind.
B is incorrect because, as explained, the attorneys’ fees issue is not substantive.
C is incorrect because federal power in this area is not absolute; the Erie doctrine requires a balancing test.
D is incorrect because the pure fairness of competing state and federal rules is not what drives the Erie analysis.
After months of negotiations, Homeowner and Contractor entered into a remodeling contract whereby Contractor (from State A) agreed to remodel Homeowner’s primary residence (State B) during the summer months while Homeowner stayed in her vacation home in State C. The parties negotiated primarily over emails and phone calls as Contractor was working on a jobsite in State D and Homeowner stayed in her vacation home in State C. According to the contract, the remodeling was to be completed by September 1st, when Homeowner’s children were set to return to school after summer vacation. Due to a delay in the delivery of construction materials, the project was not completed until mid-October. Homeowner filed a breach of contract action in federal district court in State B, alleging in good faith that the delay caused her to incur damages in excess of $75,000. After the suit was filed, Contractor filed a third-party complaint against Lumber Co. (State A), alleging that the breach of contract was caused by Lumber Co.’s delay in delivering the construction materials. The laws regarding breach of contract actions differ in all 4 states involved (States A, B, C, D).
Which state’s choice of law rules will be used to resolve the conflict in this breach of contract action?
(A) State A because it is the state where Contractor and Lumber Co. are domiciled.
(B) State B because the lawsuit was filed in State B and the home is situated in State B.
C) State C because Homeowner negotiated and entered into the contract while in State C.
(D) State D because Contractor negotiated and entered into the contract while in State D.
B is the correct answer. In Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the Court held that the federal courts do not have the power to create a general federal common law rule when adjudicating claims based on state law. Thus, a “problem” presents itself in diversity cases filed in federal court, where the law to be applied is state law but the cases involve a minimum of 2 states. In diversity actions, the law to be applied in the case depends on the choice of law rules of the forum state. In this case, the forum state is State B. Assuming State B has jurisdiction over the case (it does since the cause of action against Contractor and Lumber Co. arise from their contacts and activities in State B), then the court in State B will look to State B’s choice of law rules. The forum’s choice of law rules govern which state’s laws will be applied to resolve the controversy.
An Alabama plaintiff brought a tort action against a Florida defendant in Alabama state court. The Alabama court granted Defendant’s motion to dismiss on the ground that Defendant was not subject to personal jurisdiction in Alabama. Plaintiff then brought precisely the same lawsuit against the same defendant in state court in Florida. Defendant moved to dismiss that action under the doctrine of claim preclusion.
How should the court rule on the motion?
(A) The court should grant the motion to dismiss, because both lawsuits consist of the identical cause of action.
(B) The court should grant the motion to dismiss, because the parties are the same in both lawsuits.
(C) The court should deny the motion to dismiss, because defendant is a citizen of Florida.
(D) The court should deny the motion to dismiss, because the first dismissal did not constitute an adjudication on the merits.
(D) is correct. In order to invoke claim preclusion, the proponent of that doctrine must satisfy three requirements: (1) that the two suits in question involve the same parties (or their privies); (2) that the two suits contained the same cause of action; and (3) there was a valid judgment on the merits in the first decided case. Since the first case was dismissed on jurisdictional grounds, there was no adjudication on the merits and so the final requirement for claim preclusion (res judicata) was not met.
(A) and (B) are incorrect because the fact that the other two requirements were met is not enough as all three requirements must be met: (1) that the two suits in question involve the same parties (or their privies); (2) that the two suits contained the same cause of action; and (3) there was a valid judgment on the merits in the first decided case.
(C) is incorrect because this fact is irrelevant to the issue raised in this problem. The fact that Defendant is a resident of the forum state does not answer the question of whether the second suit would be precluded under the claim preclusion doctrine.
Guest filed suit against Homeowner, alleging the Homeowner maintained a dangerous condition in his home causing the Guest to trip and fall during a holiday party. The allegations stemmed from a loose floorboard in the Homeowner’s living room, in which the Guest tripped over while dancing. After a trial on the merits, the jury found for the Guest. Shortly thereafter, the Guest brought another suit against Homeowner, alleging that Homeowner told his neighbors that Guest was a drunk and that is why she fell at the holiday party accident. After filing an Answer with all applicable defenses, the Homeowner filed a motion for summary judgment.
How should the court rule on the motion?
(A) The court should deny the motion because the Guest has a right to have a jury decide the merits of this defamation case.
(B) The court should deny the motion because summary judgment is not appropriate for defamation claims where the plaintiff’s reputation and credibility are at issue.
(C) The court should grant the motion because the Plaintiff cannot prove that the Homeowner defamed her.
(D) The court should grant the motion because this claim is barred by res judicata.
D is the correct answer. Under the doctrine of claim preclusion—res judicata—claims that have been litigated fully, fairly, and with finality cannot be re-litigated. The doctrine precludes claims that were adjudicated and claims that should have been asserted in the original action. The Second Restatement of Judgments suggests that claims are barred if they arise out of the same group of operative facts or arise out of the same underlying transaction or occurrence. The Guest’s defamation allegation against Homeowner should have been asserted in the original action by the Guest since is arises out of the same group of facts associated with the fall on the loose floorboard. Since Guest failed to assert this defamation claim, it is now barred from litigation in this subsequent action.
Answer A is incorrect because, while litigants generally have a right to a jury trial on all legal matters, this claim is barred by res judicata and cannot be re-litigated with or without a jury.
Answer B is incorrect because it purports to carve out an exception to summary judgment for defamation cases, which does not exist. Summary judgment is available to litigants who can show that in viewing the evidence in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Issues as to credibility cannot be decided on summary judgment but the plaintiff’s credibility is not at issue in this case.
Answer C is incorrect because it incorrectly states the standard for summary judgment and does not contemplate that the claim is barred. Summary judgment will issue when the court finds that, in viewing the evidence in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The parties needn’t prove their case to defeat a summary judgment motion; rather, the non-moving party needs to show that there are facts in dispute that need to be resolved at trial.
Guest filed suit against Homeowner, alleging the Homeowner maintained a dangerous condition in his home causing the Guest to trip and fall during a holiday party. The allegations stemmed from a loose floorboard in the Homeowner’s living room, in which the Guest tripped over while dancing. After a trial on the merits, the jury found for the Homeowner. Shortly thereafter, the Guest brought another suit against Homeowner, alleging that Homeowner had negligently cause her injuries two years prior when Guest was a passenger in Homeowner’s car. After filing an Answer with all applicable defenses, the Homeowner filed a motion for summary judgment.
How should the court rule on the motion?
(A) The court should deny the motion because Guest’s second negligence claim against Homeowner is not barred by res judicata.
(B) The court should deny the motion because it was untimely.
(C) The court should grant the motion because Guest’s negligence claim is barred by res judicata.
(D) The court should grant the motion because the jury already decided the issue as to Homeowner’s negligence.
A is the correct answer. The negligence action stemming from the car accident is not considered the same “claim” for purposes of res judicata because it is not transactionally related to the accident caused by the loose floorboard. See Restatement (Second) of Judgments. While the two causes of action involve allegations of negligence, the same parties, and could have been asserted in the same lawsuit between Guest and Homeowner, Guest was not required to assert the 2 separate causes of action together because the two causes of action are factually distinct and will require different evidence. Since Guest was not required to assert the 2 causes of action in the same suit, then the second negligence claim (car accident) is not barred by the final judgment on the first negligence claim (loose floorboard). If this were filed in federal court, there is also no compulsory joinder rule under the FRCP. Rule 18 governs joinder of claims where a party “may join as independent or alternative claims, as many claims as it has against an opposing party” but is not required to do so. Therefore, Answer A is correct and C is incorrect.
Answer B is incorrect because a party may file a motion for summary judgment at anytime until 30 days after the close of all discovery. Here, the motion for summary judgment was filed after the Answer, and before a trial on the merits was set so it was not untimely.
Answer D is incorrect because it misstates the facts and equates Guest’s two negligence claims against Homeowner. While it is true that the jury decided the issue as to Homeowner’s negligence in regard to the floorboard, it did not address any aspect of negligence in the car accident. A trier of fact has not decided the Homeowner’s negligence regarding the unrelated car accident that injured Guest.
Plaintiff purchased a used car from Defendant. At the time of the sale, Plaintiff did not know that the car had defective brakes. While driving the car, Plaintiff crashed into a taxi that was exceeding the speed limit. Plaintiff sues Defendant in federal district court in Pennsylvania for personal injury, damage to property, and misrepresentation, and wins on all counts. Plaintiff then sues Taxi Driver in a separate action in federal district court in New York for personal injury and property damage. Taxi Driver raises the affirmative defense of claim preclusion, citing the judgment of the Pennsylvania federal court, and moves for summary judgment on that basis.
Which statement provides the best explanation of how the New York court should resolve the motion?
(A) The federal court should grant the motion, because Plaintiff was required to sue all parties involved in the accident in the Pennsylvania action.
(B) The federal court should grant the motion, under the transactional test for claim preclusion.
(C) The court should deny the motion, because Taxi Driver was not a party to the Pennsylvania action.
(D) The court should deny the motion, because judgment of the Pennsylvania court is not final until all appeals are concluded.
C) is correct because it accurately states and applies the rule of mutuality for when a nonparty can invoke claim preclusion as an affirmative defense. A stranger to a lawsuit cannot claim the benefits of or be subject to the burdens of a prior judgment in a lawsuit in which it did not participate (subject to exceptions explained below). Claim preclusion is a judicially created doctrine that bars the re-litigation of a claim raised in a prior suit. The basic rule of claim preclusion is that a valid and final judgment between the same parties (or those who are treated as the same parties) is conclusive and bars a second action by the plaintiff on the same claim. This rule, set out in the Restatement (Second) of Judgments, § 17 (1982), is followed by the federal courts and by all of the state court systems in the United States. Thus, a judgment will not have claim-preclusive effect unless the parties in the second lawsuit are identical to the parties to the first lawsuit. Taxi Driver was not a party to the first lawsuit and cannot show that he is in a legal relationship with a party in the first lawsuit that would convince the court to treat him as a party. See Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (“nonparty preclusion may be justified based on a variety of pre-existing ‘substantive legal relationship[s] between the person to be bound and a party to the judgment”) (citation omitted). The Court has held that preclusion by “virtual representation” violates due process other than in six narrow and exceptional circumstances that are not present on the facts in this problem. Those exceptions are: (1) when a person agrees to be bound; (2) when a person is in a “pre-existing” and qualifying substantive legal relationship, e.g., bailee and bailor, successive property owners, and assignee and assignor; (3) when a person is adequately represented by someone with the same interests who was named a party in the prior suit, such as a fiduciary or guardian; (4) when a person’s interests were litigated through a “proxy”; (5) when a “special statutory scheme” explicitly forecloses “successive litigation by non-litigants”; and (6) if the nonparty “assume[d] control” over the litigation in which that judgment was rendered. See Taylor v. Sturgell, 553 U.S. 880, 893-895 (2008). Under these circumstances, Taxi Driver is a stranger to the lawsuit decided by the Pennsylvania court and cannot assert an affirmative defense of claim preclusion based on that judgment.
(A) is not correct because Taxi Driver was not a required party in the Pennsylvania action within the meaning of FRCP 19, and so was not required to be joined in the lawsuit. Otherwise, with very few exceptions, the rules of preclusion do not require a claimant to join in one lawsuit all parties to the transaction. Thus, Plaintiff was not subject to a rule of compulsory joinder, and was not required to join Taxi Driver in his original lawsuit. Taxi Driver was a stranger to the lawsuit between Plaintiff and Defendant, and under the rules of mutuality cannot invoke the benefits, and is not bound by the burdens, of that judgment. For a different rule in a state system, see Mick v. Mani, 766 P.2d 147 (Kan. 1988) (adopting a “one-action rule” in the context of comparative negligence that barred plaintiff from filing second action arising from same transaction against a different defendant).
(B) is not correct because the rule that it applies, although applicable in a federal court, does not permit Taxi Driver—a stranger to the suit between Plaintiff and Defendant—to benefit from the judgment entered in the prior litigation. By definition Plaintiff’s claim against Taxi Driver is not the same claim as against Defendant. It is true that the federal judiciary has adopted the transactional approach to define a claim for purposes of claim preclusion. Under this test, a claim “includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.” Restatement (Second) of Judgments § 24 (1982). To determine whether the same transaction is involved, courts are instructed to look at the question “pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.” Id.
(D) is not correct because the rule that it states is not pertinent; whether or not the Pennsylvania judgment is final, it cannot be raised as a bar by Taxi Driver because he is not a party to that judgment. As between the same parties, a judgment must be valid and final to have claim-preclusive effect. In the federal system, a judgment is considered to be final if the time to appeal has run even if the appeal has “not been taken or perfected.” United States v. Munsingwear, Inc., 340 U.S. 36, 389 (1950). Moreover, simply appealing a judgment does not defeat claim preclusion. See, e.g., Prager v. El Paso Nat’l Bank, 417 F.2d 1111, 1112 (5th Cir. 1969) (“The fact that the judgment is now on appeal… (where it remains undecided) has no effect on its absolute effect as a bar.”). The rule that a valid judgment is final and entitled to claim-preclusive effect as between the same parties “despite the taking of an appeal” is set out in Restatement (Second) of Judgments § 13 cmt. f and applies in many state judicial systems. Admittedly, according claim-preclusive effect to a judgment pending appeal can cause problems if the second action is dismissed on claim-preclusive grounds and the first judgment is then overturned on appeal. Nevertheless, the alternative approach—of withholding claim-preclusive effect pending appeal—generates different and probably more significant problems. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1 (1987) (“Despite the manifest risks of resting preclusion on a judgment that is being appealed, the alternative of retrying the common claims, defenses, or issues is even worse.’”) (quotation omitted). Keep in mind that the availability of appellate review is a consideration that informs whether the judgment is to be given collateral estoppel effect. See, e.g., Burlington N. R. Co. v. Hundai Merchant Marine Co., Ltd., 63 F.3d 1227 (3d Cir. 1995).
Parents of a child enrolled in a full-time home school program petitioned the School Board in order to receive speech therapy services for their child. After a hearing on the matter, the School Board denied the petition concluding that a child in a full-time homeschool program is not eligible to receive such services from the public school. The Parents appealed and the Appeal Board upheld the School Board’s decision. The following school year, the parents of the child again petitioned the School Board for the same speech therapy services. After a hearing, the School Board determined that the child was not eligible to receive speech therapy services from the public school while being enrolled in a full-time home school program. After the second denial, the Parents filed an appeal, which the Appeal Board dismissed. Parents’ filed suit in federal district court.
Which of the following statements is correct?
(A) The Parents’ suit is barred by collateral estoppel.
(B) The Parents’ suit is barred by res judicata.
(C) The Parents’ suit is not barred by collateral estoppel.
(D) The Parents’ suit is not barred by res judicata or collateral estoppel.
A is the correct answer. The Parents’ suit is barred by collateral estoppel, which is issue preclusion. The doctrine of collateral estoppel is applicable to administrative proceedings. Issue preclusion bars re-litigation of issues that have been litigated fully, fairly, and with finality. This doctrine comes into play when the same issue is being litigated between the same parties. Res judicata bars re-litigation of the same claims that have been litigated fully, fairly, and with finality. Here, the two claims filed by Parents were different in that they covered a different school year and thus presented a different cause of action, therefore res judicata did not bar the second claim. However, the issue as to the child’s eligibility to receive speech therapy services through the public school was the same in the first petition as it was in the second petition. Therefore, the Parents’ suit was barred by collateral estoppel.
Answer B is incorrect because res judicata bars re-litigation of the same claims that have been litigated fully, fairly, and with finality. Here, the two claims filed by Parents were different in that they covered a different school year and thus presented a different cause of action, therefore res judicata did not bar the second claim.
Answer C is incorrect because the issue as to the child’s eligibility to receive speech therapy services through the public school was the same in the first petition as it was in the second petition. Therefore, the Parents’ suit was barred by collateral estoppel.
Answer D is incorrect because although the claim is not barred by res judicata, it is barred by collateral estoppel, as discussed in Answer A. See M.C.G. v. Hillsborough County School Bd., 927 So. 2d 224 (2006)
Defendant was convicted of a charge of bank robbery that had been filed against him in criminal court by the federal government. Shortly after his conviction, Defendant was served with a civil complaint in which the government sought to recover possession of the money it alleged had been stolen by Defendant.
Should the trial court in the civil case grant the government’s motion to preclude re-litigation of the issue of whether or not Defendant stole the money from the bank?
(A) No, because the parties to the two cases are not identical.
(B) Yes, because the standard of proof is higher in criminal than in civil proceedings.
(C) No, because the standard of proof is lower in civil than in criminal proceedings.
(D) Yes, because the issue is the same in both cases.
(B) is the correct answer. This problem raises the question of the application of the doctrine of issue preclusion (collateral estoppel). This doctrine is invoked to preclude the re-litigation of an issue that has already been decided in a prior case involving a different cause of action than is involved in the subsequent proceeding. The consequence of invoking issue preclusion is merely to preclude re-litigation of that issue. This is different than the consequence of invoking claim preclusion because when that doctrine is invoked, it results in the dismissal of the entire cause of action. The specific issue in this problem is whether the fact that the standard of proof governing the resolution of the same issue in the two proceedings is different means that the issue in the two cases is not the “same.” In the criminal proceeding, the government had to establish that Defendant had stolen the money by a “beyond a reasonable doubt” standard, whereas it need only meet the lesser “preponderance of the evidence” standard in the subsequent civil action. Since the government obtained a conviction in the criminal case, Defendant would be precluded from re-litigating the issue of stealing the money in the subsequent civil action since the government had sustained the more rigorous standard of proof in the criminal case.
(A) is incorrect because it is factually incorrect. The parties to these two cases are identical.
(C) is incorrect because the qualifier following the answer leads to the conclusion that issue preclusion can be invoked. While the qualifier “because the standard of proof is lower in civil than in criminal proceedings” is a true statement, it leads to the conclusion that issue preclusion can be invoked, which contradicts the answer it is qualifying. In the criminal proceeding, the government had to establish that Defendant had stolen the money by a “beyond a reasonable doubt” standard, which it did. In the subsequent civil action, it need only meet the lesser “preponderance of the evidence” standard. This means that the same evidence which lead to the Defendant’s conviction “beyond a reasonable doubt” would also support a finding of civil liability against the Defendant by the lesser “preponderance of the evidence” standard in the subsequent suit.
(D) is incorrect. The fact that the issue is the same is not dispositive as it is only one of the requirements for invoking issue preclusion. The requirements are: (1) that the two suits in question involve the same parties (or their privies); (2) that the two suits contained the identical issue; and (3) the issue was fully adjudicated in the previous case.
Defendant was acquitted of a charge of bank robbery that had been filed against him in criminal court by the federal government. Shortly after his acquittal, Defendant was served with a civil complaint in which the government sought to recover possession of the money that allegedly had been stolen by Defendant.
Should the trial court in the civil case grant Defendant’s motion to preclude re-litigation of the issue of whether or not he stole the money from the bank?
(A) No, because the parties to the two cases are not identical.
(B) Yes, because this issue was already litigated in the previously concluded criminal case.
(C) No, because the standard of proof is higher in criminal than in civil proceedings.
(D) Yes, because the standard of proof is lower in civil than in criminal proceedings.
(C) is the correct answer. This problem raises the question of the application of the doctrine of issue preclusion (collateral estoppel). This doctrine is invoked to preclude the re-litigation of an issue that has already been fully decided in a prior case involving a different cause of action than is involved in the subsequent proceeding. The consequence of invoking issue preclusion is merely to preclude re-litigation of that issue. This is different than the consequence of invoking claim preclusion because when that doctrine is invoked, it results in the dismissal of the entire cause of action. The specific issue in this problem is whether the fact that the standard of proof governing the resolution of the same issue in the two proceedings is different means that the issue in the two cases is not the “same.” In the criminal proceeding, the government had to establish that Defendant had stolen the money by a “beyond a reasonable doubt” standard, whereas it need only meet the lesser “preponderance of the evidence” standard in the subsequent civil action. Since this change in the standard of proof means that it is possible that the same evidence would result in a finding against Defendant in the second action, issue preclusion does not apply in this situation. Keep in mind that “double jeopardy,” which prohibits a criminal defendant from being prosecuted twice for the same crime, does not apply in this scenario because the subsequent case is a civil action, rather than a second criminal action for the same offense.
(B) is incorrect because the fact that the issue is the same is not dispositive. The fact that the standard of proof governing the resolution of the same issue in the two proceedings is different means that the issue in the two cases is not the “same.” In the criminal proceeding, the government had to establish that Defendant had stolen the money by a “beyond a reasonable doubt” standard, whereas it need only meet the lesser “preponderance of the evidence” standard in the subsequent civil action. Since this change in the standard of proof means that it is possible that the same evidence would result in a finding against the defendant in the second action, issue preclusion does not apply in this situation. Again, keep in mind that “double jeopardy,” which prohibits a criminal defendant from being prosecuted twice for the same crime, does not apply in this scenario because the subsequent case is a civil action, rather than a second criminal action for the same offense.
(A) is incorrect because it is factually incorrect. The parties to these two cases are identical.
(D) is incorrect because, while it is a true statement, this fact leads to the conclusion that issue preclusion can be invoked. In the criminal proceeding, the government had to establish that Defendant had stolen the money by a “beyond a reasonable doubt” standard, whereas it need only meet the lesser “preponderance of the evidence” standard in the subsequent civil action. Since this change in the standard of proof means that it is possible that the same evidence would result in a finding against the defendant in the second action, issue preclusion does not apply in this situation.
