Preclusion

Question 1

Claim Preclusion Requirements

Answer 1

Same Claim: same t/o (unless it couldn’t have been raised before)

Same Parties: must have been adversaries, must be identical or in privity (agreement, legal relationship, legal representative, principal-agent, statutory scheme)

Valid, Final Judgment on the Merits

• Valid: proper jurisdiction
• Finality: litigation ended, only judgment left. Appeals don’t affect claim preclusion.
• On the Merits: decided on substance, not procedure.
• -Procedure includes jurisdictional defects, failures of notice, improper venue, etc. Some courts include statutes of limitations.
• -Substance includes 12(b)(6) motion with prejudice, default judgment, and settlement reduced to judgment.

Question 2

Issue Preclusion Requirements

Answer 2

Same Issue: must be identical, actually litigated (contested), and necessarily decided (necessary to outcome)
-Jury general verdict doesn’t count as necessarily decided because too vague.

Same Parties: If same parties or defensive preclusion, then preclusion permissible. If not same parties and offensive, then permissible unless unfair:

• Non-party had notice and easy chance to join, but didn’t.
• Prior results on the issue were inconsistent.
• Prior cases had no incentive to litigate the issue vigorously (must prove incentive to overcome this).
• Against the U.S.
• Some procedural options weren’t available before, e.g. lawyer, evidence, joinder, but NOT jury.

Valid, Final Judgment (same as claim preclusion)

Question 3

Offensive vs. Defensive Issue Preclusion

Answer 3

Offensive:

• Case #1: P1 v. D1 (product liability)
• Case #2: P2 v. D1 (product liability)
• –P2 is asserting a claim and wants to use a previous determination, thus collateral estoppel is used offensively as a way to establish their claim.

Defensive: Hypo 11.8

• Case #1: V v. Bill (executor): Held: $100,000 is a gift, not part of estate
• Case #2: V (executor) v. Bank (where Bill deposited money)
• -Bank says that the $100,000 was a gift, and they use collateral estoppel to support that defense. No need to consult fairness factors.