Claim and issue preclusion

Question 1

basic question in preclusion cases

Answer 1

The question is whether a judgment already entered (Case 1) precludes litigation of any matters in another case (Case 2).

Question 2

choice of law for preclusion ?

Answer 2

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.

Question 3

what is claim preclusion / res judicator

Answer 3

A claimant may sue only once to vindicate a claim. So you only get one case in which to seek recovery for all rights to relief for that claim.

Question 4

requirements for claim preclusion

Answer 4

(1) same claimant suing same D in case 1 and case 2
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(2) Case 1 ended in valid, final judgment on the merits

“on the merits” = any judgement, even if there was no actual adjudication [i.e. default judgment or dismissal b/c P failed to prosecute etc. ], UNLESS:

(a) court said judgment was without prejudice when entered

(b) based on a lack of jurisdiction (PJ or SMJ)

(c) based on improper venue

or

(d) based on failure to join indispensable party
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(3) case 1 and 2 must be the same claim, which means (a) the same exact claim, or (b) a different claim arising out of the same cause of action at the same time as the original claim

NOT PRECLUDED: A sues B for car accident. A wins. final judgement. NOW, B sues A for car accident. [different claimant, so not precluded under claim preclusion … but lol it is precluded under compulsory counterclaim rule]

PRECLUDED under T/O test: A sues B for car accident personal injuries. valid final judgment. Then, A sues B for property damage to the car. barred because it arose from same T/O.

[note minority view called primary rights doctrine – there are separate claims for property damage and personal injuries that arise in a single event pursuant to the view that property damage and personal injury invade different rights]

Question 5

requirements for issue preclusion

Answer 5

(1) case 1 ended in valid, final judgment on the merits

same as for claim preclusion
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(2) same issue actually litigated and determined in case1
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(4) issue was essential to judgment in case 1

“essential” = finding on the issue is the basis for the judgment
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(4) Against someone who was a party to case 1 or in privity with a party [due process - everyone gets their day in court before rights are affected]

privity = party to case 1 represented someone who was not a party to case 1

example of privity:
a class action binds all members of the class even though not all class members are parties to the action because they were represented by the class rep
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(5) complies with mutuality rules … ask: By whom is preclusion used?

Question 6

mutuality rules for issue preclusion

Answer 6

NONMUTUAL ISSUE PRECLUSION

(1) defensive = the person using preclusion was not a party to case 1 and is the D in case 2

Case 1: P vs. D1
Case 2: P vs. D2

D2 can assert issue preclusion so long as:

(a) case 1 ended in valid final judgment on the merits
(b) same issue is litigated and determined
(c) issue in case 1 was essential to judgment in case 1
(d) issue preclusion being asserted AGAINST someone who was a party to case 1 and BY someone who was not a party to case 1

***but if P tries to assert issue preclusion against D2, D2 is NOT precluded because he gets his day in court
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(2) offensive = person using preclusion was NOT party to case 1 and is the P in case 2

Case 1: P1 sues D
Case 2: P2 sues D

P2 can assert issue preclusion so long as FAIRNESS factors are met:

In determining whether nonmutual offensive issue preclusion is fair, the court will consider whether:

• The party to be bound had a full and fair opportunity to litigate in Case 1;
• 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.);
• 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

• 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.

** can D assert preclusion against P2? NO because P2 is a nonparty [Taylor v. Sturgell]

Question 7

federal common law governs where

Answer 7

preclusion issues where case 1 was in federal court