Preclusion

Question 1

Requirements for res judicata (claim preclusion)? (3)

Answer 1

Case 1 and 2 were brought by the same claimant AGAINST the same D

Case 1 ended in a valid final judgment on the merits

Case 1 and 2 asserted the same claim.

Question 2

Res Judicata = _____ Preclusion

Answer 2

Claim

Question 3

A and B are involved in a car crash.

Case 1: A sues B. Case is litigated and goes to final judgment.

Case 2: B sues A to recover for his injuries from the same crash.

Why does claim preclusion NOT apply?

Answer 3

Because the cases were not by the same P against the same D.

Question 4

A and B are involved in a car crash.

Case 1: A sues B. Case is litigated and goes to final judgment.

Case 2: B sues A to recover for his injuries from the same crash.

Why might Case 2 be dismissed

Answer 4

Seems like a compulsory counterclaim.

Question 5

Any judgment entered is likely “on the merits” UNLESS it was based on one of the following 3:

Answer 5

Jurisdiction

Venue

Indispensible parties

Question 6

P sues D. The case is dismissed for lack of PJ. In Case 2, P sues D in a court with PJ, asserting the same claim in Case 1. D argues that Case 2 should be dismissed under claim preclusion. Yes or No and why?

Answer 6

No.

Case 2 was not “on the merits” because it was based on PJ.

Question 7

A claim is any right to relief arising from . . .

Answer 7

The same T/O.

Question 8

The minority view of “claim”: There are separate claims for ____ ___ and ____ ____ because those are different primary rights.

Answer 8

Property Damage

Personal Injuries.

Question 9

Three elements of issue preclusion (collateral estoppel)?

Answer 9

Case 1 ended in a valid final judgment on the merits

The same issue was actually litigated and determined in Case 1

The issue was essential to the judgment in Case 1 (finding on the issue was the basis for the judgment)

Question 10

For issue preclusion, case 1 must have actually been _____

Answer 10

Litigated.

Question 11

P sues D for neg. Assume that under applicable law, contributory negligence would bar P from recovery. D asserts the affirmative defense of contributory neg. The case is tried and the jury makes the express finding that P was contributorily negligent. Judgment is entered for D. Is the finding on P’s negligence “essential” for purposes of issue preclusion? Why?

Answer 11

Yes. It is why D won, so it is essential. Under contrib. neg., once P was found negligent, D had to win.

Question 12

Against whom can issue preclusion be asserted?

Answer 12

Only against somebody who was a party to Case 1 (or represented by a party in Case 1).

Question 13

Who can always assert issue preclusion?

Answer 13

Someone who was a party to Case 1 (or represented by a party)

Question 14

How can someone, not a party to case 1, use nonmutual defensive issue preclusion?

Answer 14

If the other party had a full chance to litigate in Case 1.

Question 15

Explain nonmutual defensive issue preclusion with respect to who is using it against whom?

Answer 15

One using it was not a party to Case 1 and is D in case 2.

Question 16

Explain nonmutual OFFENSIVE issue preclusion with respect to who is using it against whom?

Answer 16

One using it was not a party to Case 1 and is a P in Case 2.

Question 17

What four factors will a court use to determine whether a person not a party to Case 1, but is a P in Case 2, can use nonmutual OFFENSIVE issue preclusion?

Answer 17

D had a full and fair opportunity to litigate Case 1

D had an incentive to litigate strongly in Case 1 (D didn’t want to lose because he knew you could sue him)

P could NOT have joined easily in Case 1

There is no inconsistent finding on this issue