Preclusion Flashcards
Stare Decisis
(3 elements)
- Only to holding, not dictum
- Prior case must be sufficiently similar
- Only applies to cases within its hierarchy (e.g., ND Cal bound by 9th Cir, US Sup Ct but not D Mass) but other cases may have persuasive force; also binding in Erie situations when decision of highest state court is on point
Law of the Case
(3 elements)
- Under the law of the case doctrine, a court is ordinarily precluded from re-examining an issue previously decided by the same court, or a higher court in the same case.
- Applies only during the course of a single proceeding, and forecloses re-examination of decided issues either on remand or on a subsequent appeal. Thus, operates only within the confines of a single case – binding subsequent proceedings in the same case, both at trial and on appeal.
- Law of the case doctrine doesn’t preclude appellate court review of a lower court ruling
Claim Preclusion
(3 elements)
Issue was decided or could have been decided as part of the case (same transaction or occurence); parties the same
- Identity of Parties: Two lawsuits must involve the same parties or their privies
* Privies include successors in interest, trustees, assignees/assignors - Original case must have produced a final, jurisdictionally valid judgment on the merits except:
- JD
- venue
- indespensable parties
- Both actions must involve the same cause of action (same transaction or occurrence or same factual underpinning); brought or could have been brought
1) ISSUE 2) LITIGATED 3) CRITICAL
Issue Preclusion
(Collateral Estoppel)
(3 elements)
Need
(1) issue at stake to be identical to one litigated;
(2) issue was actually litigated in prior litigation;
(3) determination of the issue in prior litigation was a critical and necessary part of judgment in earlier action.
Merger - claim preclusion if claimant won case 1
Bar - claim preclusion if claimant lost case 1
Society of Separationists, Inc. v. Herman
Facts
First suit: Aug. 1987 suit by Murray, an atheist (daughter of famous atheist Madalyn O’Hare) and other plaintiffs in federal court alleging a pattern of having to refuse to take a “god” oath and then being excluded from jury duty. Part of suit was based on alleged violation of Establishment Clause. District court dismissed for failure to state a claim and 5th Circuit affirmed.
Second suit: Murray declined to take pre-voir dire oath for Texas jury duty because it referenced God. Murray was offered opportunity for affirmation in lieu of an oath but refused that as well. Claimed an affirmation was just as religious as an oath. Judge disagreed, and jailed her for contempt. She sued under 1983 claiming Free Exercise rights were violated. District court held earlier case was res judicata.
Fifth Circuit, after the first case, held in Ferguson that requiring a witness to take an oath or affirmation violated Free Exercise Clause.
Claim preclusion was not applicable: parties were not identical; Herman was not a defendant in the first suit and was not in privity with a defendant
Not issue preclusion: Need (1) issue at stake to be identical to one litigated; (2) issue was actually litigated in prior litigation; (3) determination of the issue in prior litigation was a critical and necessary part of judgment in earlier action. Test was not met here because this claim is Free Exercise, not Establishment Clause.
Also, issue preclusion would not apply because Ferguson is a change in the law.
Law of the case does not apply; different cases
Sopha v. Owens-Corning Fiberglas Corp.
Facts
Robert Sopha was exposed to insulation with asbestos while working as an insulator from 1951-1995
Prior to 1987 diagnosed with pleural thickening (non malignant condition) involving lining inside chest cavity
March 1987 he and wife filed complaint in state court Milwaukee County for damages.
He died in Nov. 1997, so case was amended to include a wrongful death claim. Defendant moved to dismiss based on 3 year SOL; plaintiffs moved to dismiss and action was voluntarily dismissed “on the merits with prejudice.”
December 1996 – diagnosed with malignant condition of the pleural lining caused by asbestos. Plaintiffs sued in March 1997; Robert Sopha died Nov. 1997, so the suit was amended to include wrongful death
Defendants moved to dismiss – SOL and barred by claim preclusion
Trial court ruled that SOL barred 1997 action but that claim preclusion didn’t apply. State court of appeal certified case to Wisconsin Sup Ct.
Holding
First issue: When did claim accrue (SOL is 3 years)
Def argues for “single injury rule”– all injuries caused by a single transaction by tortfeasor are part of a single action; later injury doesn’t restart SOL
Plaintiffs rely on “discovery rule” – SOL starts on date injury is discovered or with reasonable diligence should have been discovered, whichever occurred first. Defendants say discovery rule doesn’t apply because plaintiffs knew earlier about injuries caused by asbestos
Another Wisconsin principle: Damages are recoverable for reasonably certain injurious consequences, not for speculative damages
Under argument: claim for mesothelioma was premature in 1980s but now is barred – leads to Catch 22
Single cause of action rule – deters stale claims, allows defendants to gain certainty
Discovery rule provides for fairness – where no opportunity to litigate a claim
If court held that malignancy suit was barred, would be incentive to bring premature lawsuits.
Here claim preclusion should not apply
Those who wait would lose claim for nonmalignant injuries; those who sue immediately would not be permitted to recover for later malignancy
Asbestos: long latency periods
Asbestos cases are different from other types of cases because of long latency periods and the progression of the disease
Can’t rely on private voluntary arrangements to toll SOL or avoid claim preclusion
Issue Preclusion
Issue preclusion can only occur when the claim containing the subject issue was not barred by claim preclusion; only applies to a particular issue; and it does not bar litigation of a matter that was not but could have been litigated
In re Termination of Parental Rights
Facts
Jerome EM appeals termination of parental rights to his son Greg; argues that trial court should have applied claim or issue preclusion
Gail and Jerome are parents of Greg; never married; he contributed nothing to costs of pregnancy or birth; paid no child or other support
When Greg was 3, Jerome petitioned for adjudication that he was father; occurred in 1997; afterwards, Jerome still didn’t make payments, provided no emotional support, didn’t visit or communicate except one conversation with guardian ad litem
Since Greg was one, he has lived with Gail and Roger; they filed petition to terminate Jerome’s parental rights and Roger petitioned to adopt Greg; testimony showed past threats, violent conduct regarding his wife and children during his first marriage. Court found that Jerome had abandoned Greg and was an unfit father; court terminated parental rights
Holding
Jerome argued that prior paternity determination concluding he was father and ordering periods of placement with Jerome prevented termination
Specifically, he argued claim preclusion and issue preclusion
Here, petition to terminate Jerome’s parental rights was not an attack on the judgment that Jerome was Greg’s biological father; rather, it was a claim that, in Greg’s best interests, Jerome’s parental rights should be terminated; thus, claim preclusion did not bar the suit.
Issue preclusion applies only to actual litigation of the same issue; it is ultimately a discretionary call.
Only issue determined in first case was whether Jerome had legal right to parent him; court didn’t determine whether Jerome had abandoned Greg or failed to assume parental responsibility for him
Herrera v. Richter
Facts
Herrera stuck by an automobile owned by Reicher and driven by Reicher’s son (Paul, Jr). Reicher was insured by American Family.
Herrera brought tort action against Reicher and son. Jury awarded $8000 on the claim against the son but denied recovery against the father.
Later Herrera sued Reicher and American Family (but sought no relief sought against Reicher). Herrera sought recovery of the $8000, then final, awarded against the son. Trial court granted summary judgment to defendants based solely on issue preclusion.
Holding
Issue must have been unambiguously decided in the first suit. Plaintiff argues that the issue of whether the son had permission (express or implied) to drive the father’s car was not resolved in the tort action and thus the trial court erred in invoking collateral estoppel.
Defendants argued that the jury determined that the father did not know or have reason to know that the son used the car, and thus the father didn’t give permission to the son; thus, the son was not insured under the policy.
Defendants relied on instruction 7 and on the fact that the verdict was in favor of Reicher. Plaintiff’s theory was negligent entrustment. Under that instruction, jury had to believe 7 specific propositions before returning a verdict for plaintiff against Reicher. Verdict was general verdict that didn’t show which propositions the jury failed to believe.
Thus, instruction 7 placed a number of things on plaintiff to prove.
Defendants argue that the only explanation for the verdict is that the jury concluded that the son was operating the car without permission.
The jury could have believed all of the propositions in the instruction except that part of #4 that required a belief that the father was negligent in making the car available to the son. The jury could have found that the father made the car available but wasn’t negligent in so doing.
Irrelevant that the instruction may have been an incorrect instruction of the law. What the jury did is what matters for collateral estoppel.
Irrelevant that the ambiguity that exists is a result of flaws in the instruction.
Possible to explain general verdict as jury finding that the defendant did give permission but that he was not negligent or that no permission was given
Special verdict would have solved the problem; would have shown unambiguously how jury resolved each issue
Can’t call jurors to testify about rationale of their decision
Death of Mutuality
Non-Mutual Collateral Estoppel
- Due process bars binding a party that was not a party in the earlier case.
- It is possible, after Parklane Hosiery, to bind a party (both offensively and defensively) in a non-mutual context.
Defensive:
- A v. B (officer of Vitamin Water) for alleged fraud by the company about the health benefits of Vitamin Water
- B wins; jury finds no fraud
- A v. C (another officer of Vitamin Water) for the same alleged fraud by the company
- C can argue that A should be barred from relitigating the issue. Issue is within the court’s discretion, looking at fairness (whether A had a full and fair bite at the apple).
Offensive:
- A v. B (officer of Vitamin Water) for alleged fraud by the company
- B loses (there was indeed fraud)
- C v. B (officer of Vitamin Water) for alleged fraud by the company
- C can argue that that B is collaterally estopped from arguing that there was no fraud. Issue is within the court’s discretion, looking at fairness (whether B had a full and fair bite at the apple).
Not Allowed:
Example:
- A v. B (officer of Vitamin Water) for alleged fraud by the company
- A loses (there is no fraud)
- C v. B (officer of Vitamin Water) for alleged misrepresentation by the company
- B can’t assert A’s loss against C because C wasn’t a party to the earlier case
- Here, C did not have any bite at the apple.
Example:
- A v. B (officer of Vitamin Water) for alleged fraud by the company
- A wins (there is fraud)
- A v. C (another officer of Vitamin Water) for alleged fraud by the company
- A can’t assert B’s loss against C because C didn’t have a bite at the apple
Parklane Hosiery v. Shore
Shore brought shareholder class action against company in federal court; false and misleading proxy statement in connection with a merger; sought damages, rescission of merger, costs
Before trial SEC filed suit against same defendants, alleging proxy statement was materially false, misleading; after 4 day trial in SEC case, district court found proxy statement false and materially misleading; court of appeals affirmed
Shore then moved for partial summary judgment against Parklane Hosiery asserting that Parklane Hosiery was collaterally estopped from litigating the issues decided in the SEC suit; district court denied motion, saying it would violate Parklane Hosiery’s 7th Am rights. 2d Cir reversed
Holding:
Mutuality is no longer an invariable requirement for collateral estoppel
Blonder-Tongue: defensive use of collateral estoppel – plaintiff can’t assert a claim that it had previously litigated and lost against another defendant
Here: offensive use of collateral estoppel: plaintiff seeking to prevent a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff
2 concepts aren’t the same
Defensive collateral estoppel gives plaintiff a strong incentive to join all potential defendants in first suit if possible. (Once a plaintiff sues one defendant, any issue litigated and decided adversely to plaintiff will be available to other defendants for issue preclusion in subsequent actions. So plaintiff might as well sue all defendants at once.)
Offensive use of collateral estopped has the opposite effect; plaintiff can rely on a previous judgment won by another plaintiff against a defendant but will not be bound by the judgment if defendant wins the earlier case; thus plaintiff has an incentive to adopt a wait and see attitude. If the first suit goes well, plaintiff benefits; if it doesn’t, plaintiff can still sue.
So use of offensive collateral estoppel will increase the total amount of litigation
Also, offensive use can be unfair to defendant; if first action is a suit for small amount of money, defendant may not have a strong incentive to litigate it vigorously; also unfair if the judgment is inconsistent with a prior judgment
Preferable approach is to give trial courts broad discretion to determine when offensive collateral estoppel should be applied; judge should not allow it where it would be unfair (e.g., where plaintiff could easily have joined in the earlier action or application would be unfair). But general rule is that trial courts shouldn’t allow offensive collateral estoppel.
Here:
Wait and see wouldn’t apply because private party could not join SEC action
No unfairness; company had strong incentive to litigate the serious case brought by the SEC
Also, judgment in SEC case was not inconsistent with any prior judgment
And there were no procedural opportunities available to the defendant in the second action that would lead to different result
Preclusion in Class Actions/Premier Elec. Constr. Co.
When a class member opts out of a class action, the member who opted out cannot claim the benefit of a victory by the class under issue preclusion principles. (In Premier, the class member who opted out was not allowed to rely on a ruling favorable to the class that the defendant violated federal antitrust laws. The court did note, however, that the ruling in the class action was relevant as a matter of stare decisis.)
