Preclusion

Question 1

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

Answer 1

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; AND
3. Case 1 and Case 2 asserted the same claim

Question 2

When is a judgment not on the merits?

Answer 2

When it’s based on:

1. Jurisdiction;
2. Venue; OR
3. Indispensable parties

Question 3

What are the minority and majority views about the definition of “same claim”?

Answer 3

Majority view (incl. fed law): Any right of relief arising from the same T/O

Minority view: looks to primary rights — separate claims for property damage and for personal injuries

Question 4

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

Answer 4

1. Case 1 ended in a valid, final judgment on the merits;
2. Same issue was actually litigated and determined;
3. Issue was essential to the judgment in Case 1;
4. Must be asserted against a party in Case 1; AND
5. Must meet the tests for mutual or nonmutual preclusion

Question 5

What is res judicata vs. collateral estoppel?

Answer 5

(claim preclusion) vs. (issue preclusion)

Question 6

Against whom can issue preclusion be asserted?

Answer 6

Somebody who was a party to case 1 (or represented by a party in case 1)

Question 7

By whom can issue preclusion be asserted? (3 people)

Answer 7

1. Nonmutual defensive issue preclusion: Party using it was not party to case 1 and is D in case 2
2. Nonmutual offensive issue preclusion: Party using it was not party to case 1 and is P in case 2
3. By somebody who was a party in Case 1

Question 8

When will courts allow nonmutual offensive issue preclusion?

Answer 8

Mutuality rule: Never, and most courts would agree

Clear trend: law will allow if it is not unfair

Question 9

What are some factors that a court considers when determining if nonmutual offensive issue preclusion is fair?

Answer 9

1. Whether D had a full and fair opportunity to litigate Case 1;
2. Whether D had an incentive to litigate strongly in Case 1;
3. Whether P could not have joined easily in Case 1; AND
4. There are no inconsistent findings on the issue