Preclusion

Question 1

Claim Preclusion (res judicata)

Answer 1

Final judgement, same parties, same claim, could have been raised.

a final judgement on the merits bars the same claim or any other claim arising out of the same transaction or occurence that was or could have been raised in the prior action.

Question 2

Not on the merits (no preclusion)

Answer 2

1) dismissal for lack of SJ 12b1
2) Dismissal for lack of personal jur 12b2
3) improper venue 12b3
4) failure to join a necessary party 12b7
5) voluntary dismissal without prejudice.

Question 2

On the Merits (preclsion)

Answer 2

adresses substantive claims

1) summary judgement
2) Judgement after trail
3) dismissal for failure to state a claim 12b6.
4) default judgement

Question 3

Claim Splitting

Answer 3

Claim splitting not allowed. Failure to sue for all damages done precludes a second action by judgement from first suit.

Question 4

Personal Injury and Property

Answer 4

both personal injury and property damage arising out of the same wrongful act are only a single cause of action.

Question 5

Issue Preclusion (collateral estoppel) Rule 27

Answer 5

Bars relitigation of certain issues.

1. Final Judgement
2. Same Issue
3. Actually litigated
4. Necessarily decided
5. full and fair opportunity

a final judgement on the merits precludes relitgation of an issue of fact or law that was actually litigated and necessarily decided in a prior action, against the same party or someone in privity who had a full and fair opportunity to litigate it.

Question 6

Exceptions to use of Issue Preclusion

Answer 6

1. No opportunity for review
   - like in small courts where no review available.
2. Different courts, different rules
   -substantially different rules between courts.
3. Criminal v. Civil Standards
   -criminal court dosnet preclude relitigation in civil court becasue perponderance v. beyond reasonable doubt.
4. Anti -sandbagging
   -if stake in case one were tiny. court wont preclude from litigation when stakes are higher.

Question 7

Defensive non - mutual issue preclusion

Answer 7

D in case 2 (not party to case 1) uses preclusion against plaintiff.

Allowed if plaintiff had full and fair opoprtunity to litigate in case 1.

Defensive non‑mutual issue preclusion comes up when a new defendant says to a plaintiff: “You already litigated and lost this issue against someone else, so you can’t try again against me.”

Question 8

Parklan Hoisery factors.

Offensive non-mutual issue preclusion

Answer 8

plaintiff in case 2 (not party to case 1) uses preclusion against defendant.

More controversial. Many courts reject because of wait and see issue.

Parklane Hoisery: allows if it is not unfair. factors are defendant had incintive to litigate, plaintiff could have joined earlier, inconsistent judgements exist.