Preclusion

Question 1

What choice of law applies for preclusion?

Answer 1

The preclusion law of the judicial system that decided the first case applies (e.g. if federal court in Kentucky decided case 1, the prelusion law that applies is federal common law).

Question 2

What are the requirements for claim preclusion (res judicata)?

Answer 2

(1) Both cases must be brought by the same claimant against the same defendant
(2) the first case must have ended in a valid final judgment on the merits
(3) the cases must be the same claim

Question 3

What is a judgment on the merits?

Answer 3

Any judgment is on the merits except for a judgment “without prejudice,” unless the judgment was based on lack of subject-matter jurisdiction, improper venue, or failure to join an indispensable party.

Question 4

When are two claims the same claim?

Answer 4

The majority view is that any right to relief from the same transaction or occurrence is the same claim.

The minority view is the “primary rights doctrine.”

Question 5

What is the primary rights doctrine?

Answer 5

The primary rights doctrine says there are separate claims for bodily injury and property damage that arise from a single event.

Question 6

What is issue preclusion (collateral estoppel)?

Answer 6

Issue preclusion occurs when an issue was litigated in one case and the same issue is presented in a second case.

Question 7

What are the requirements for issue preclusion (collateral estoppel)?

Answer 7

(1) the first case ended in a valid final judgment on the merits
(2) the same issue was actually litigated in the first case
(3) the issue was essential to the judgment of the first case
(4) mutuality
(5) fairness

Question 8

What does essential to the judgment mean for the purpose of issue preclusion?

Answer 8

Essential to the judgment means that the finding on the issue is the basis for the judgment.

Question 9

Can issue preclusion be used against someone who was a party (or in privity with a party) to the first case?

Answer 9

Yes. All courts agree issue preclusion can be used against someone who was a party (or in privity with a party) to the first case.

Question 10

What is nonmutual defensive issue preclusion?

Answer 10

Nonmutual defensive issue preclusion occurs when the person using preclusion is the defendant in the second case and was not a party to the first case.

Question 11

What is nonmutual offensive issue preclusion?

Answer 11

Nonmutual offensive issue preclusion occurs when the person using preclusion is the plaintiff in the second case and was not a party to the first case.

Question 12

Is nonmutual defensive issue preclusion allowed?

Answer 12

Most courts say yes if the person who issue preclusion is being used against had a full chance to litigate the first case.

Question 13

Is nonmutual offensive issue preclusion allowed?

Answer 13

The majority rule is that nonmutual offensive issue preclusion is not allowed. However, there is a growing trend that allows it if it would be fair.

Question 14

What are the fairness factors for nonmutual offensive issue preclusion?

Answer 14

(1) the party to be bound had a full and fair opportunity to litigate the first case
(2) the party to be bound had a strong incentive to litigate the first case
(3) the party asserting issue preclusion could have joined the first case easily
(4) there have been no inconsistent findings on the issue.