Preclusion

Question 1

Case 1 is litigated in the Federal Court of Ohio and Case 2 is litigated in the State Court of Kentucky. Which jurisdiction’s preclusion law do you apply?

Answer 1

Always the preclusion law of Case 1.

Question 2

What is the effect of Res Judicata?

Answer 2

Claim preclusion means you only get one case in which to vindicate all right to relief for that case.

Question 3

What are the 3 requirements for Claim Preclusion?

Answer 3

(1) Case 1 and Case 2 involve the SAME PLAINTIFF against SAME DEFENDANT.
(2) Case 1 ended with a FINAL JUDGMENT on the merits.
(3) Case 1 and Case 2 assented the SAME CLAIM.

Question 4

In Case 1, party A sues party D in the state of Arkansas. Party A wins and the court enters final judgment. Next, in Case 2 party D sues party A. It’s the same accident and the same parties. Will there be claim preclusion?

Answer 4

No because even though it’s the same parties, it’s not the exact same plaintiff and defendant because they’ve reversed.

Question 5

With regard to the third limb of the test for claim preclusion (same claim requirement), what does this mean?

Answer 5

— Majority view: Issue arising from the same T/O

— Minority view: separate cases for property damage and personal injury.

Question 6

When is a claim said to be precluded because it’s been Merged vs. Barred.

Answer 6

Plaintiff wins = claim merged into prior judgment

Defendant wins = claim barred by prior judgment

Question 7

What’s another word for issue preclusion?

Answer 7

Collateral Estoppel

Question 8

What are the 3 requirements for Issue Preclusion?

Answer 8

(1) FINAL JUDGMENT on the merits
(2) SAME ISSUE litigated and determined in Case 1
(3) This issue was ESSENTIAL to the judgment of Case 1

Question 9

Against whom can Issue Preclusion be asserted?

Answer 9

Preclusion can then be asserted against a PARTY to Case 1

Anyone who was in PRIVITY with that party (e.g. class action)

Question 10

By whom can issue preclusion be asserted?

Answer 10

And Issue Preclusion can be asserted by a party to Case 1

Or a non-party to Case 1 in two ways:

— Non-mutual DEFENSIVE Issue preclusion = Person asserting is Defendant in Case 2 but was not party to Case 1. They’re using issue preclusion to defend themselves against a person who was a party in case 1. Acceptable for D to do so, provided the P had the chance to litigate the issue in Case 1.

— Non-mutual OFFENSIVE Issue Preclusion =
Person relying on it is Plaintiff in case 2, but was not a party to Case 1. They cannot assert it offensively against person who was involved in case 1, unless it is FAIR:

       (i) D had an incentive to strongly litigate 
       (ii) Would not have been easy for you to join Case 1
       (iv) No inconsistent findings on the issue