1.
What issue of law or fact was decided in the
Claim Preclusion [Res Judicata]
Is the same P filing suit against the same D?
-Must be in the same position. Preclusion won't
apply if they switched positions. BUT - while
preclusion may not bar former D from suing P,
claim still may be prohibited under 13 [a]
compulsory counterclaim.
No
Exact same parties
Is the claim in suit 2 the same as suit 1? If not,
might & should the claim have been litigated
the first time?
Test - does the claim in the 2nd suit arise out of
the same transaction or occurrence as the claim in
the 1st lawsuit?
- Claim in 2nd must have been a claim at time of
1st suit & must have been able to be joined.
- Balancing test [Heaney] - effiency to judicial
system/fairness to D vs. providing forum for just
litigation for every aggrieved party's claim -
feasible to join? Compelling reasons not to [writ v.
damages]?
Final judgment on the merits?
-FRCP 41[b] - all judgments on the merits unless -
- Dismissal for lack of venue, lack of PJ, failure to
join party under R19
- Court says "not on the merits"
- Dismissed without prejudice
- Probably lack of SMJ - Gargello
- 12b6 IS on the merits!
- Can be in appeals process - just need final
judgment
-Consent judgments on merits - need conclusions
of law & findings of fact [Martino]
CLAIM IS PRECLUDED.
DETERMINE IF CLAIM OTHERWISE
Issue Preclusion [Collateral first case?
PRECLUDED BY 13a - if a counterclaim Estoppel] 2. Is the second lawsuit litigating the same
arose out of the same transaction or issue of law or fact?
occurrence that was the subject matter [Civil v. Criminal - not same issue]
of the opposing party's claim in the first
suit, the counterclaim MUST have been
brought in the first suit or it is forfeited -
cannot bring it in 2nd suit.
BUT - generally this rule doesn't apply Issue actually litigated & determined? Issue essential to the judgment? Would a
before other party pleads [Martino]. -Issue must have been raised & different decision on the issue changed the
determined [v. " should have" in CP] outcome?
-Where verdict is supported by 2 independent
theories either could support judgment by itself
PROCEDURE - Raise as affirmative cannot know which judgment was based on - not
defense (8c) & move for summary precluded [Parks]
judgment.
MUST assert it or it is WAIVED.
Not exact same
parties Was the party estoppel is being asserted
Does a non-party preclusion exception apply [same parties or those in
against a party to the first case?
privity?
Can't preclude an issue against a party not in the
-Parties in privity with one another are so closely identified they represent the
first suit - must have a chance to be heard!
same legal right
-Non-party suceeds a party's interest [e.g. purchase of property]
-Non-party controlled original suit [e.g. sole shareholder & his company]
-Non-party adequately represented in another suit by person with same interests
- must have express or implied legal relationship, parties to suit accountable to
Exact Party
nonparties.
Yes
D was in
P was in first case
Exact same parties first case
Offensive Estoppel -
Defensive Estoppel - P1 -> D & judgment for P [D was negligent]; P2 ->
If P & D were both in the first case - P sues D1 and loses [P was negligent]. P D trying to use that judgment to say the issue has
mutual estoppel - always permitted. sues D2, D attempts to preclude P from been litigated.
Issue precluded. re-litigating that issue previously litigated -Occurs when D has previously lost an issue - i.e.
& lost against another D. negligence found against D in earlier case, second
-Occurs when P previously lost the issue. P can sometimes assert issue preclusion via OCE.
-Let's P relitigate by merely "switching
adversaries" - bad - want to incentivize P
to join all Ds in 1st suit
Can be precluded even if
1738 - Full Faith & interferes with right to
Credit jury trial [1st suit equity, " OCE is permissible as long as it is fair."
- If a claim or issue was 2nd damages] - not as Four Fairness Factors -
decided in a federal or worried about jury if 1. Incentives - did D have incentive to vigorously
litigate 1st suit? i.e. maybe small damages, more
state court & is then money [more with
suits not foreseeable.
brought a second time injunction] & just need 2. Procedure - was the opportunity to litigate as
in another judicial issue decided by Permitted - P has had a chance broad as before? Forum ? maybe party didn?t
system, the preclusion appropriate litigation. to be heard. have chance to call as many witnesses, etc.
law from the 1st D worried about 3. Could P have easily joined the 1st suit? If yes,
jurisdiction to enter inconsistent judgments likely unfair - P cannot wait around hoping for a
favorable judgment.
judgment applies. can move to consolidate
4. Would there be inconsistent outcomes? If yes,
under 42b. likely unfair - don't want P shopping around
choosing the judgment P likes best.