issue and claim preclusion

Question 1

What is the purpose of preclusion?

Answer 1

to prevent serial litigation (eg. duplicative: same parties, same legal grounds or relief.)

Question 2

Claim preclusion is also known as ?

Answer 2

res judicata

Question 3

What are the legal effects of claim preclusion?

Answer 3

it bars a party from bringing a second claim seeking relief for essentially the same dispute against the same counter party.

Question 4

What is issue preclusion also known as?

Answer 4

collateral estoppel

Question 5

What are the legal effects of issue preclusion?

Answer 5

it prevents a party from rehashing an issue that has been fully and fairly determined in a previous case.

Question 6

Who can issue preclusion be used only against? who may assert it?

Answer 6

can only be used against someone who was a party to the original case. Can be asserted by someone who was a stranger to that prior case.

Question 7

What are the elements of claim preclusion?

Answer 7

1. The judgment of the prior suit must end with a judgment on the merits of a case
2. The subsequent action arises out of the same claim as the prior suit (the entire claim and claims that should have been litigated)
3. the parties in both suits are identical or in privity with one another.

Question 8

What does claim preclusion force the parties to do?

Answer 8

to aggregate their claims and use liberal joinder rules

Question 9

If claim preclusion is raised by a D, it is an _________ defense IAW FRCP 8(c)

Answer 9

affirmative

Question 10

What are some examples of final judgments that are decided on the merits for purposes of claim preclusion?

Answer 10

• involuntary dismissals 41(b)
• dismissal as a sanction
• dismissal with prejudice 12(b)(6)
• Summary judgment Rule 56

Question 11

What are some examples of final judgments that are NOT based on the merits for purposes of claim preclusion?

Answer 11

• Personal Jurisdiction 12(b)(1)
• Subject matter jurisdiction 12(b)(2)
• Venue 12(b)(3)
• joinder/ non-joinder 12(b)(7)
• other dismissals without prejudice

Question 12

To determine whether the claim is the same, the court uses either a narrow approach or a broad approach. What is the effect of the narrow approach? What is the effect of a broad approach?

Answer 12

If claims broadly defined, more bars or more claim preclusion

If claims narrowly defined, less bars less claim preclusion

Question 13

what two questions should be considered in whether the court should narrowly or broadly define the claim as the same for purposes of claim preclusion?

Answer 13

Majority approach: Same Transaction or Occurrence STO test

Minority approach: whether the claims would form a more convenient unit for trial purposes.

Question 14

for purposes of determining whether the parties are in privity with one another, when a person acquires an interest in property that has already been the subject of a priority lawsuit, are they in privity? and what does claim preclusion apply?

Answer 14

yes are in privity and claim preclusion applies binding the subsequent party to the prior judgment

Question 15

Are the parties in privity when a party litigates in a representative capacity on behalf of someone else? does CP apply?

Answer 15

yes in privity and CP applies

Question 16

Are the parties in privity if a close relationship (normally familial) exists between a party to the original case and a non-party whose claim is derivative of or closely aligned with the former party’s claim? Does CP apply?

Answer 16

yes in privity and CP applies

Question 17

What are the elements of issue preclusion?

Answer 17

1. the same issue
2. was actually litigated and
3. fully and fairly decided
4. judgment essential to a valid and final judgment,
5. Judgment on the merits
   In addition to these elements, the issue must have been decided adversely to the party against whom preclusion is asserted, and that party must have had the opportunity and incentive to appeal that determination.

Question 18

What is defensive non-mutual collateral estoppel?

Answer 18

When a D who was a non-party to the original litigation seeks to preclude a P who was a party to the original litigation from relitigating an issue.

Question 19

What is offensive non-mutual collateral estoppel?

Answer 19

When a P who was a non-party to the original litigation seeks to preclude a D who was a party to the original litigation from relitigating an issue.

Question 20

T or F, the court has discretion in deciding whether to apply Issue preclusion

Answer 20

True

Question 21

Why does the court have discretion in whether to apply Issue preclusion?

Answer 21

To prevent freeloading Ps who sit and wait for others to expend the time and resources to litigate and ride the judgment.

To protect D’s due process by ensuring that there is an end in the litigation. also prevents prejudice against the Ds.

Question 22

T or F a stranger cannot be bound by claim preclusion and can only be used against a former party to the original litigation

Answer 22

True

Question 23

What do some courts use to determine the limits of a claim for purposes of claim preclusion?

Answer 23

Whether the same evidence in the original trial would be used in the subsequent trial

Question 24

If the prevailing party in the first proceeding faced a lower burden of proof than would be required in the second, will there will be issue preclusion?

Answer 24

No

Question 25

If the victim of a crime recovers in a civil tort suit against the perpetrator, and the perpetrator faces a subsequent criminal prosecution. will the finding in the civil proceeding estop the perpetrator in his criminal proceeding?

Answer 25

No since the plaintiff’s burden of proof in the first proceeding was lower than the state’s burden of proof in the criminal proceeding

Question 26

Different time frames can also present obstacles to preclusion. Consider a product liability case in which a plaintiff recovers damages for injuries caused by a defective product sold by the defendant in 2017. In a second suit, plaintiff sues for injuries caused by the same product sold by the defendant in 2012. Given the definition of a product defect, a product deemed defective given the state of the art in 2017 may not be deemed defective for claim preclusion if ?

Answer 26

the state of the art was significantly different five years earlier.