Preclusion

Question 1

What is the main question in preclusion?

Answer 1

Whether a judgment already entered (Case 1) precludes litigation of any matters in another case (Case 2).

Question 2

If Case 1 and Case 2 are in different judicial systems (for example, state and federal courts or courts in different U.S. states), which preclusion law applies?

Answer 2

The court in Case 2 applies the preclusion law of the judicial system that decided Case 1.

Question 3

On the Bar, should I start my analysis with claim or issue preclusion?

Answer 3

Start your analysis with claim preclusion. If it applies, Case 2 is dismissed. If it does not apply, then try issue preclusion. If issue preclusion applies, it streamlines the litigation in Case 2 by deeming an issue established in the case, and thus that issue will not be relitigated.

Question 4

What are the 3 requirements for Claim Preclusion?

Answer 4

For a claim to be precluded (or barred), three things must be true.

1. Same Claimant Suing the Same Defendant: The exact same P’s sue the exact same D. (If D later sues P, allowed her but barred by compulsory counterclaim).
2. Valid, Final Judgment on the Merits: It is “on the merits” UNLESS (1) the court says it wasn’t be saying “without prejudice, or (2) it was based on lack of jurisdiction (personal and subject matter), improper venue, or failure to join an indispensable party. (True even if no adjudicatoin in Case 1).
3. Case 1 and Case 2 Must be the “Same Claim.”
   - The majority view (including federal law) is that a claim is any right to relief arising from the same T/O.
   - Minority view (primary rights doctrine: there are separate claims for property damage and for personal injuries that arise in a single event. The theory is that property damage and personal injury invade different rights.

Question 5

Explain Issue Preclusion to a Non-Lawyer.

Answer 5

Issue preclusion is narrower than claim preclusion. Here, an issue was litigated in Case 1. The same issue is then presented in Case 2. But if issue preclusion applies, the issue cannot be relitigated in Case 2. It is deemed established in Case 2, thereby streamlining the scope of litigation in Case 2.

Question 6

What are the 5 requirements of Issue Preclusion?

Answer 6

1. Case 1 Ended in Valid, Final Judgment on the Merits: It is “on the merits” UNLESS (1) the court says it wasn’t be saying “without prejudice, or (2) it was based on lack of jurisdiction (personal and subject matter), improper venue, or failure to join an indispensable party. (True even if no adjudicatoin in Case 1).
2. Same Issue Actually Litigated and Determined in Case 1.
3. Issue Was Essential to Judgment in Case 1: “Essential to the judgment” means that the finding on the issue is the basis for the judgment.
4. Can only be used against somebody who was a party to Case 1 or in “privity” with a party. (DP Factor). “Privity” means that a party to Case 1 represented someone who was not a party to Case 1. (For example, a class action binds all members of the class even though not all class members are parties to the action. They were represented by the class rep.)
5. Who can use Preclusion (Mutuality Rules)?:
   - Every court agrees that issue preclusion can be used by someone who was a party to Case 1 (or in privity with a party).
   - When someone who was not a party to Case 1 tries to use issue preclusion in Case 2, it is called “nonmutual” issue preclusion.

Fairness Factors for nonmutual offensive issue preclusion:
1. The party to be bound had a full and fair opportunity to litigate in Case 1;
2. The party to be bound had a strong incentive to litigate Case 1
3. The party asserting issue preclusion could have easily joined to Case 1, and
4. There have been no inconsistent findings on the issue.

Question 7

What are the 2 types of nonmutual issue preclusion?

Answer 7

(1) Nonmutual Defensive Issue Preclusion (new D): The person using preclusion was not a party to Case 1 and is the defendant in Case 2.

(2) Nonmutual Offensive Issue Preclusion (new P): The person using preclusion was not a party to Case 1 and is the plaintiff in Case 2.

Question 8

What are the 4 factors to determine fairness for nonmutual offensive issue preclusion?

Answer 8

Fairness Factors for nonmutual offensive issue preclusion:
1. The party to be bound had a full and fair opportunity to litigate in Case 1;
2. The party to be bound had a strong incentive to litigate Case 1
3. The party asserting issue preclusion could have easily joined to Case 1, and
4. There have been no inconsistent findings on the issue.

Question 9

What is another name for issue preclusion?

Answer 9

Collateral Estoppel

Question 10

What is another name for claim preclusion

Answer 10

Res Judicata

Question 11

In claim preclusion, what do the different terms barred and merged mean?

Answer 11

If claimaint won case 1 = merged.

If D won case 1 = barred.

Question 12

Is voluntary dismissal with or without prejudice?

Answer 12

First voluntary dismissal is without prejudice, after that it is with prejudice.