Civil Procedure II
Final Examination
Winter 2008
Essay Answer Outline
I.
Can Trux make use of judgment #1 in Passenger’s current action (#5)?
A.
B.
Claim preclusion.
1.
For claim preclusion to apply, there must be the same claim; same parties
or parties in privity; final/valid judgment; first judgment on the merits.
2.
These aren’t the same claims, because first action involved claim by
Driver, not Passenger.
3.
Passenger also is not the same party.
4.
Although Passenger is Driver’s wife, she is not in privity with Driver but
has a separate and independent action against Trux.
5.
But first action presumably resulted in a final and valid judgment.
6.
However, first judgment was not “on the merits.”
7.
Rule 41(b) excludes from judgments on the merits dismissals for
jurisdictional reasons.
Issue preclusion.
1.
For issue preclusion to apply, there must be the same issue; parties must
be the same or in privity; issue must have been actually decided by first
court; first judgment must be final and valid; issue must have been
essential to first judgment.
2.
Issue of personal jurisdiction was actually decided and was essential to
first judgment, which judgment was final and valid.
3.
However, only issue that was decided in these cases was lack of personal
jurisdiction in California, which is not a relevant issue in current
(Missouri) action.
4.
Because Passenger was not a party to first action, she also could not be
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bound (even if issue were relevant to lawsuit #5).
II.
Can Trux make use of use of judgment #2 in Passenger’s current action (#5)?
A.
B.
III.
Claim preclusion.
1.
Texan and Passenger are different parties.
2.
This also means that the claims in actions #2 and #5 are different.
3.
This is not a final judgment, because new trial motion has been granted.
4.
However, judgment is on the merits.
Issue Preclusion.
1.
Because Passenger was not a party to first action, she cannot be bound.
2.
Issue that Trux would like to use, though, is (apparent) finding of no
negligence on its part.
3.
We may presume, but can’t be sure, that this issue was essential to first
judgment and was actually litigated.
4.
While first judgment apparently was valid, it is not final because new trial
motion has been granted.
5.
Motion for new trial was not properly made under Rule 59, because it
came more than 10 days after trial.
6.
However, absent an interlocutory appeal, there is no way to challenge this
improper grant of a new trial until final judgment is rendered in trial court.
Should Trux have been able to obtain the examinations of Kathy Kansas it sought in
lawsuit #3?
A.
Under Rule 35, court can order mental or physical examination.
B.
This is only discovery that requires a court order.
C.
To obtain Rule 35 examination, condition must be “in controversy” and “good
cause” must be shown.
D.
Here, plaintiff has put her physical condition “in controversy” by filing claim and
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asserting damages.
IV.
E.
Condition of plaintiff’s eyes also are likely “in controversy” because of nature of
the claim.
F.
“Good cause” exists because of need to determine damages and possible
contributory negligence.
G.
However, in this case a court order would be necessary to obtain either
examination.
Can Passenger make use of judgment #3 in her current lawsuit (#5)?
A.
B.
Claim preclusion.
1.
For claim preclusion to apply, there must be the same claim; same parties
or parties in privity; final/valid judgment; first judgment on the merits.
2.
Claim preclusion cannot apply because this is not the same claim (because
parties are different).
3.
Nor are parties the same.
4.
However, this would be considered a final and valid judgment in the
federal courts (despite the pendency of the appeal).
5.
Judgment is also on the merits.
Issue preclusion.
1.
For issue preclusion to apply, there must be the same issue; parties must
be the same or in privity; issue must have been actually decided by first
court; first judgment must be final and valid; issue must have been
essential to first judgment.
2.
Issue of Trux negligence would be the same in both cases.
3.
Issue of Trux’s negligence was actually litigated and determined.
4.
Issue of Trux’s negligence was essential to first judgment.
5.
Judgment was final and valid, despite pendency of appeal.
a.
Under Rule 60(b)(5), judgment can be reopened if it is based upon
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a judgment that then is reversed or vacated.
V.
6.
Parties are not the same, so issue preclusion would not be possible under
mutuality doctrine.
7.
However, Driver and Passenger might attempt non-mutual offensive
collateral estoppel.
a.
Under doctrine of full faith and credit as enunciated in 28 U.S.C. §
1738, Missouri state court must give same full faith and credit to
Kansas federal court as would that rendering court.
b.
Kansas federal court would apply Parklane test to determine
possible collateral estoppel impact of its judgment.
c.
Under Parklane, party attempting non-mutual collateral estoppel
must not have been able to easily have joined in first action and it
would not be unfair to estop defendant in second action.
(1)
There is no apparent reason why Driver and Passenger
could not have joined in Kansas (first) action.
(2)
Their intervention in that lawsuit would not have destroyed
federal diversity jurisdiction.
(3)
However, it would not seem unfair to estop Trux, because
it knew they had claims (Driver already having sued in
California), the procedural incidents in Kansas federal
court should not have been less than those in Missouri state
court, and Kansas action was a serious action and was
seriously contested.
(4)
Because, though, Driver and Passenger could have joined
in first lawsuit, they should not be able to use non-mutual
offensive collateral estoppel in Missouri state action.
Can Passenger make use of judgment #4 in her current lawsuit (#5)?
A.
The criminal and civil actions are different claims, so claim preclusion is not
possible.
B.
For issue preclusion to apply, there must be the same issue; parties must be the
same or in privity; issue must have been actually decided by first court; first
judgment must be final and valid; issue must have been essential to first
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judgment.
1.
Issue of Trux’s negligence presumably would be useful in current lawsuit.
2.
Although the standard of proof was different in two lawsuits, issue could
still be used because standard of proof was actually higher in first lawsuit.
3.
First judgment was final and valid.
4.
Issue of negligence was essential to first judgment.
5.
Issue was actually litigated.
6.
Although parties are different, non-mutual offensive collateral estoppel
could be attempted.
a.
Parklane provides test for use of offensive, non-mutual collateral
estoppel.
(1)
Here, private party could not have intervened in federal
criminal prosecution.
(2)
Nor would there be any unfairness in using criminal
prosecution to estop Trux in civil action.
(3)
Trux knew that civil lawsuit(s) were coming and had full
procedural protections in first lawsuit.