Preclusion Flashcards
When Case 1 and Case 2 are in different judicial systems, which preclusion law is applied?
The preclusion law of the judicial system that decided Case 1
What does preclusion concern?
Whether a judgment already entered in Case 1 precludes litigation of any matters in Case 2
What is res judicata?
(Claim preclusion)
A claim can only be sued on once
What are the requirements for res judicata to apply?
1) Case 1 and Case 2 were brought by the same claimant against the same defendant
2) Case 1 ended in a final judgment ON THE MERITS
3) Case 1 and Case 2 asserted the same claim
What does “on the merits” mean for res judicata and collateral estoppel?
Any judgment other than one based on:
1) Jurisdiction
2) Venue, or
3) Indispensable parties
What does “same claim” mean for res judicata?
A claim is any right to relief arising from a transaction or occurrence
Minority view: there are separate claims for property damage and for personal injuries. Different primary rights
What is collateral estoppel?
(Issue preclusion)
An issue was litigated in Case 1, and the same issue comes up in Case 2. It is deemed established in Case 2
What are the requirements for collateral estoppel?
1) Case 1 ended in a valid, final judgment on the merits
2) The same issue was actually litigated and determined in Case 1 (went to trial, or had summary judgment)
3) The issue was essential to Case 1 (the finding on this issue was the basis for the judgment)
4) The issue is being asserted against somebody who was a party to Case 1 (or was represented by a party in Case 1), AND
5) It is being used by someone who was a party to Case 1 (or was represented by a party) – mutual issue preclusion. Maybe nonmutual issue preclusion
What is nonmutual defensive issue preclusion?
The person using issue preclusion was not a party to Case 1, and is the defendant in Case 2
Is nonmutual defensive issue preclusion allowed?
Most courts say yes if the adverse party had a full change to litigate the issue in Case 1
What is nonmutual offensive preclusion?
The person using issue preclusion was not a party to Case 1, and is the plaintiff in Case 2
Is nonmutual offensive issue preclusion allowed?
Most courts would say no, but there is a trend, including in federal court, that says if it is not unfair it is allowed.
How is fairness determined for nonmutual offensive issue preclusion?
1) The defendant had a full and fair opportunity to litigate the issue in Case 1
2) The defendant had an incentive to litigate the issue strongly in Case 1
3) Plaintiff could not have easily joined Case 1 (if you could have, maybe you should have and been bound by that judgment), and
4) There are no inconsistent findings on the issue (if there have been multiple cases on the issue and they come out different ways, it would be unfair to use issue preclusion)
