Preclusion

Question 1

Preclusion

Answer 1

1. claim and issue preclusion law applied is the law of the system that decided the first case
   i. ex. CA law applies if first case was a CA case
2. are affirmative defenses, so they should be raised in answer
3. bar: most often raised by a motion for summary judgment or adjudication (bc no dispute of material fact)

Question 2

Effect of appeals

Answer 2

if the first case is appealed, or the time for appeal has not yet expired

i. federal: there is a preclusive effect (claim or issue preclusion)
ii. CA: no preclusive effect
iii. i.e. there is a preclusive effect if an appealed case is in federal court, but not if CA court

Question 3

Judgment on the merits

Answer 3

i. federal: any judgment unless it was based on jx, venue, or indispensable parties
ii. CA: also not on the merits (no preclusive effect) if first cased dismissed bc of statute of limitations

Question 4

Definition of claim

Answer 4

(claim preclusion):

i. claim preclusion requires: same parties and config., judgment on merits, same claim
ii. CA primary rights: there is a separate cause of action for each kind of right invaded
a. personal injury and property damage are separate causes of action
b. vs. federal law: same transaction or occurrence
iii. contracts: one cause of action includes all Ks breaches up to the time the case is filed for both federal and state court
a. i.e. 6 individual breaches of an installment payment contract are one cause of action if none have been sued on yet, but each can be its own cause of action

Question 5

Bar - 8 major essay topics

Answer 5

1. preclusion
2. ∆’s responses (ex. demurrers)
3. trial and motions
4. personal jx
5. scope and enforcement of discovery
6. venue and transfer
7. federal SMJ
8. class action/ service of process

Question 6

Issue preclusion

Answer 6

7. issue preclusion:

i. CA courts generally allow both offensive and defensive issue preclusion