I. How do you gain personal jurisdiction?
A. Territoriality (Tag jurisdiction)
a. Pennoyer: power over people & property
1. Served with process while in forum, or property was properly attached
by authorities
i. Burnham: still stands (CA)
2. Defendants agent served while in forum
3. Domiciled in a particular forum
4. Actual consent
B. Consent
a. Hess: statute states that by use of some service you give consent
1. Appointed representative
2. Proof of service
b. Bremen/Carnival Cruises: Forum clauses in contracts = consent/waiver of
PJ
c. Ireland: if you submit t the court for a challenge of PJ, you have consented
to that ruling
C. Minimum Contacts
a. General jurisdiction: claim unrelated to contacts; requires more
connection; continuous and systematic
b. Specific jurisdiction: claim related to contacts; requires less connection
c. MUST BE PRESENT AT THE TIME THE SUIT IS COMMENCED!
1. Hypo: when a person leaves before suit commenced, you are screwed
and have to go sue them in their state
d. How do you tackle a problem if the traditional basis from Pennoyer or
Hess don't apply? (make sure to say they do not apply)
1. Statute: what is its scope? is there a limitation? if so, does this case fall
within limitation? If no, stop.
i. In-rem, quasi in rem statutes are generally attachment statutes
2. Specific or general jurisdiction? How much in contacts do we need?
3. Due process: meet minimum contacts first, and then notions of fair
play?
i. International Shoe: If the defendant has such minimum contacts
that exercising jurisdiction does not offend traditional notions of
fair play and substantial justice
ii. WWVW (specific): purposeful availment of state's laws
Mere possibility/foreseeability is not sufficient; you need conduct
that would demonstrate they knew and anticipated a connection
would arise (like, airing commercials or selling in the tristate area)
--> demonstrate that it was foreseeable that they would be sued in
OK
iii. Burger King (specific): sought business in the state regardless of
whether you have been there; good indication when contract has a
choice of law provision
Contract itself is not sufficient, but in connection with
negotiations, actions, course of dealings (payments, notice) you
can have minimal contacts
Fairness: Burden on defendant is to show it is unconstitutional -->
need to show that it is GRAVELY inconvenient that you are at a
severe disadvantage in the litigation (very tough to show)
iv. McGee (specific): continuous and systematic; SOLICITED
contract/business (BK); specific jurisdiction, so minimum contacts
are less (relatedness); state's interest
v. Hansen (specific): purposeful availment, which is what makes it
different from McGee; the resident of FL sent things to the bank,
not vice versa, so the bank never had anything to do with forum
state
vi. Kulko: plane ticket was not enough; he did not derive benefit from
state; merely sent daughter to state
vii. Asahi (specific): purposefully directed @ forum (stream of
commerce)
Some felt it was a contact if you put item in stream and reasonably
anticipate it will get to the forum state
Some felt you need above, plus the intent or purpose to serve other
states; ie purposefully availed self of that state
It is an unfair burden to grant jurisdiction over those who do not
avail themselves
viii. Helicopteros (general): they bought, sold, trained, maintained
and made a contract w/in the state, but this was still insufficient
to warrant jurisdiction - problem with this case is that it's up for
debate as to whether the claim was general or specific
ix. Perkins (general): hosting meetings, corresponding transfering
funds, paying bills (otherwise conducting major business
operations) were enough to grant Ohio jurisdiction over a Filipino
company; continuous and systematic
x. Schaffer: Shoe applys to in-rem claims; property is seen as another
minimum contact of the defendant
Real property will often be sufficient enough
If it is not real property, you will need more contacts
Needed more than stock - had never visited, seen, done business in,
etc. in DE
4. Fairness
i. Inconvenience for witnesses and defendant
ii. State's interest
iii. Plaintiff's interest
iv. Legal system's interest in efficiency
v. Interstate interest in shared substantive policies
5. Summation: purposeful availment, foreseeability of suit, continuous
and systematic, related to contacts? If yes, then does it offend fair
play?
II. Notice
A. Process: summons & a copy of the complaint
B. Must be given to someone who is at least 18 years or older
C. Ways to serve a person - Rule 4(e)(1)(2)
a. Personal service, anywhere in the state
b. Substituted service --> must be at usual abode or dwelling and to someone
who lives there
c. Service defendant's agent
d. Any method allowed by state law, the state being the one in which the
defendant resides or where the court resides
D. Ways to serve a corporation - Rule 4(h)
a. An officer or manager or general agent
b. Someone with sufficient responsibility such that we expect them to
transmit important papers; serve within confines of (e) and (k)
E. Rule 4(k): A federal court may serve process on someone in addition to
within the state, in any other geographical location as provided for by state
statute
a. So, if state statute says a party must be served within a state, you cannot
serve them outside the state ever
F. Personal service is always okay, but other means work as well
a. Mullane: must be reasonably calculated to reach someone (if you wanted
to reach them, this is how you would do it)
b. If you only have some parties' information, you must contact them
individually and then may attempt the other parties in whichever way you
can
c. Publication is RARELY okay
III. Opportunity to Be Heard
A. Clearly, you ALWAYS have an opportunity to be heard, but certain
circumstances where property is taken pre-judgment cause issues
B. Typical fact pattern about someone owing someone money or company
repossessing (attaching property or garnishing wages)
C. Due process requires notice and a pre-seizure hearing unless extraordinary
circumstances exist and a bond is put down to protect against abuse
a. Fuentes: bond for a safety measure and assurance of plaintiff's
seriousness; necessary for public and governmental interest; need some
court action --> can't just go fill out a form and get the police to seize the
items. A judge must direct the seizure.
b. North Georgia: can't force the debtor to place down bond without a
hearing/notice; unfair --> only plaintiff
D. THREE PART TEST to determine if due process is satisfied for prejudgment
relief (Doehr)
a. Strength of D's private interest: how will D be harmed by prejudgment
attachment? The more harm, the harder it is for DP to be satisfied
b. Risk of erroneous deprivation: Consider what the level of proof is.
1. Do they require actual evidence to show likelihood of prevailment?
The more evidence required of prevailment, the better.
i. VERY WARY OF CONCLUSORY STATEMENTS --> need facts,
proof, not allegations (Mitchell)
2. Who is making the judgment? Be very wary of clerks.
c. Interest of plaintiff: is it a large sum likely to prevail? Evidence showing
that is it likely that the defendant will try to hide assets? Balance with
burden placed on government
IV. Subject Matter Jurisdiction
A. Diversity §1332
a. Cannot collusively change citizenship or enjoin unrelated people to gain
jurisdiction
1. May do whatever you please to remain in state court
b. Complete Diversity: no plaintiff may be of the same citizenship as the
defendant (on same side of v. is okay)
1. Exception: mass torts, §1332
2. Person: legal domicile
i. Mas v. Perry
3. Corporation: (1) state of incorporation & (2) primary place of business
(both must meet complete diversity)
i. Choose one of the following tests and go for it...
ii. Nerve Center: location of decision making authority and overall
control
iii. Muscle: location of production or service activities
iv. Hybrid: considers all of the business activities and circumstances
4. Business associations: consider citizenship of each of its members
c. Amount in Controversy - MORE THAN!! $75,000
1. Good faith claim
2. No legal certainty that bars the recovery of that amount
3. Amount is determined at the time the complaint is filed
4. May aggregate when:
i. Several claims against a single defendant
ii. Several defendants to the same claim (supplemental)
iii. Several plaintiffs in the same claim
B. Federal Question Jurisdiction
a. Must be constitutional: Article III -- must form an ingredient of the
original cause of action
b. Statutory §1331
c. How to tackle a problem
1. Well-pleaded complaint
i. Mottley: on the face, the complaint is based on a federal question or
statute; created by federal law
ii. Anticipated defenses do not count
2. Does it really raise a question of federal law? Is it a substantial federal
interest?
i. Cause of action is created by federal law / courts have created CoA
(violation of federal law)
If yes, stop. If no, move to ii.
ii. Is it a state action that relies on federal law or an interpretation of
federal law? (interpretation is more likely to be a substantial fed
interest - Smith)
No clear answer, but need to argue it is or isn't substantial
Merrill Dow: state claim resting on federal law sans cause of
action does not automatically create federal question
Need to look @ class benefiting, legislative intent, advance
purposes of statute, whether it is something generally regulated
by state law
Found that the lack of federal cause of action or intent pointing
to one created a less than substantial federal question
Grable: does not always require fed CoA to be heard in fed court
so long as substantial federal interest
Whose interests are at stake? Does the gov't, like here (forum
for tax suits), have a direct interest? Or is it the state's interest?
Uniformity: would allowing cases like this one affect the
currents of litigation? or is this a rare circumstance?
C. Jurisdiction will always stay within the case UNLESS it is a supplemental
claim and the main claim disappears (choice of judge)
V. Supplemental Jurisdiction
A. Pendant Party: plaintiff adds in a new party; if this destroys diversity in
diversity cases, NOT OKAY
a. Owen v. Kroger: this would allow abuse of the system b/c plaintiffs
would amend complaints after they gained diversity
1. Possibly, if one party dropped out, diversity could be gained again
b. Exxon: party may be joined even if they don't meet the AIC so long as
original plaintiff does
B. Pendant Claim: plaintiff adds in new claim
C. Ancillary: Defendant impleads or counterclaims based on CNOF; if this
destroys diversity, it is okay
D. 28 USC §1367 (codifying Gibbs): presumption that § 1331 and other statutes
other than § 1332 reach to the full extent of the constitution absent of clear
contrary intent
a. This is to overrule Finley, which basically said that absent a clear
legislative intent to authorize certain claims, a state action cannot be
joined with a federal action despite CNOF
b. Now, so long as there is no express intent NOT to allow that claim, a
CNOF will suffice to gain supplemental jurisdiction (both pendant and
ancillary)
E. How to tackle a problem
a. Do you have diversity or FQ jurisdiction? If no, stop. (compare to FQJ
cases) (original jurisdiction)
b. Decide what kind of claim it is -- ancillary or pendant; party or claim
1. Do we have any problems with ruining diversity if pendant (added by
plaintiff). If yes, stop.
i. Remember: if defendant impleads someone, it does not matter if it
ruins diversity
2. Can still go on if the separate claim does not meet AIC if new plaintiff
(Exxon)
c. §1367 (codifying Gibbs)
1. CNOF - one constitutional case? If no, stop.
d. Are any criteria of §1367(c) met as to allow the federal court to decline
jurisdiction?
1. Novel complex issue of state law
2. State law substantially predominates
3. District Court dismissed all federal claims
4. Exceptional circumstances, other compelling reasons (rare) (Exec.
Software)
VI. Removal Jurisdiction - § 1441
A. Defendant moves for removal --> state to federal only if case could have
ORIGINALLY been brought in federal court; must be removed to proper
division/district
B. Federal court may only remand to state courts if it has been removed to their
court originally
C. Entire cases, including supplemental state claims, may be removed, but the
District Court retains discretion remand those cases that fall under §1367(c)
D. DIVERSITY CASES: DEFENDANTS CANNOT REMOVE IF THEY
ARE FROM THE FORUM STATE!! NOT FOR FED QUESTION!
VII. Venue, Transfer & Forum Non Conveniens
A. Venue
a. Purely based on statute; federal court usually grants venue based on state
statute; may be waived
b. Local Action Rule: When the claim is inherently local in nature, venue is
only proper in one state (real property), not either state of the parties
involved
1. Rarely agreed upon except when real property is located in a certain
venue
2. Reasor Hill --> state courts can still entertain suits on real property in
another state
c. 28 USC §1391
1. Diversity Jurisdiction Cases
i. District where ANY defendant resides, if all reside in the same state
ii. District where substantial part of events occurred, or a substantial
part of property that is subject is
Bates --> where the mail was forwarded and located
iii. District where any defendant is subject to PJ at the time action is
commenced if (1) and (2) don't work
2. FQJ Cases
i. Any district where D resides, if all D reside in same state
ii. Substantial Part of events
iii. A judicial district in which any defendant may be found if (1) and
(2) don't work
d. Corporate residence is much broader than for PJ
1. Where it is subject to personal jurisdiction at the time the action is
B.
C.
VIII.
A.
B.
C.
D.
commenced
i. If more than one district applies, then the one for which it has
sufficient contacts to subject it to PJ in that district
ii. If that does not apply, then the district with the most significant
contacts
e. What is substantial part of the events? It is fact intensive
1. Evidence, witnesses, actual acts, property, etc.
Transfer of Venue
a. Law does not change between transfer --> protect against venue shopping
b. §1404: Must be to a place where the plaintiff could have originally
brought suit (Hoffman)
1. May transfer between divisions within same district (between federal
courts) for matters of convenience, justice
Forum Non Conveniens - §1409
a. Court dismisses case b/c litigation is more appropriate elsewhere and court
does not have the ability to transfer b/c it is in a different judicial system
b. Piper: consider public and private convenience factors
c. Gulf Oil balancing test: while always presumption towards plaintiff's
choice, we will only disturb it when private interest and public interest
indicate a desire to be in a different forum.
Choice of Law
NO FEDERAL COMMON LAW
§1652 (Rules of Decision Act) requires that state substantive law be applied
in diversity cases
If area without federal directive, then states retain power to control the issue
How do you know where something is substantive
a. Some are just plainly substantive --> liability, elements of claim or
defense. What do you do when not obvious?
b. Hanna
1. Is there a valid FRCP on point? If yes, procedural and must apply so
long as it is valid
i. Court has never struck down an FRCP for not being procedural -->
always upheld even if appear to be substantive
ii. Rules Enabling Act provides that FRCP is valid, so yes.
iii. Rules could be from statute, constitution or any federal directive,
or even judge made rules
iv. This case specifically said that the federal rule for service of
process conflicts with state, and therefore applies
c. If no, you do an Erie test
1. Guaranty Trust: outcome determinative? does it substantially impact
case? (SOL is applicable as state law)
2. Byrd: balancing test between federal and state interest (federal interest
in jury trial won)
3. Twin aims of Erie: forum shopping and inequitable administration of
law
i. Would ignoring state law cause litigants to flock to federal court?
E. How to tackle a problem
a. Always ask: is there a Federal Directive on point? (Rule Enabling Act
test)
1. If yes, then apply.
i. Rules Enabling Act - does it really regulate procedure, or does it
abridge or modify?
Abridge, modifying or enlarging state given rights --> do not
apply federal rule (Hanna)
Does it really regulate procedure? FRCP, yes.
Is it validly enacted? FRCP, yes.
Can you interpret the rule broadly or narrowly as to not conflict
with state law? If narrow and not conflicting, then apply state law.
If conflicting, apply fed law.
2. If no, then do an Erie test. (Rule of Decision Act test)
i. Is it a substantive rule? If yes, apply.
Is it bound with substance or a form or mode of enforcement
(procedural)?
Is it outcome determinative?
Look @ in light of twin aims of Erie
What are the state and federal interests?
Apply state rule if outcome determinative AND within twin aims
of Erie UNLESS there is a federal interest that is superior (Byrd)
ii. Things to consider:
If something is iffy under twin aims, it is likely it is outcome
determinative
Substantive --> things that impact which court you are in
Gasperini is an oddball case, so if you get something like it, go to
it. If not, ignore.
F. There is federal common law in FQJ cases --> certain decisional rules
G. Ascertaining State Law (Boyle)
a. What does statute say? Follow interpretation by state's highest court
b. If none, look at lower courts
c. Interpret selves
IX. Pleading
A. Complaint, Answer and Reply
B. Rule 8 - Requirements of a complaint
a. Statement of jurisdiction
b. Short and plain statement showing that you are entitled to relief
1. Legal conclusions must be supported by facts --> mere legal
conclusions ("i am suing for negligence") will not suffice --> need
some explanation of WHY
2. Don't need to state the legal theory it rests on --> just facts that can
support a claim and relief
3. Court may choose to be creative in figuring out complaint; can choose
not to
c. Demand for judgment of relief
C. Rule 3
a. Filing of a complaint commences a civil action in federal court
1. Some contention as to whether this tolls the statute of limitations
D. Rule 9 b - some specific instances require more information in the pleading fraud, mistake, condition of mind, etc.
E. Rule 7 - Types of pleadings allowed
a. Complaint & Answer
b. Reply to Counterclaim, Answer to a cross-claim
c. Third party complaint, and third party answer
F. Difference between motion and pleading
a. Motions are applications to the court for an action, whereas pleadings
assert facts and claims to frame issues and disclose evidence
G. Rule 11- Sanctions & Signing
a. Must sign every document submitted to court
b. Basically for improper pleading you get sanctioned
1. frivolous arguments
2. improper purposes, to harass
3. allegations sans evidentiary support
c. Initiated by motion or by the court
H. Rule 12 b(6) - Demurrer & Motions
a. Failure to state a claim upon which relief can be granted
b. Case: can't improperly construe complaint; can only dismiss if there is a
legal certainty that the facts do not present ANY claim possible
c. Other Motions: lack of jurisdiction, improper venue, insufficiency of
process, insufficiency of service
d. Must be made before pleading if a further pleading is permitted (before
reply)
e. Sometimes amendments are made, so take into consideration if that is
allowed (we didn't really deal with amendments)
X. Disclosure
A. General Scope
B. Rule 27 - Discovery Prior to Commencing Lawsuit (In re Shiela Roberts
Ford)
a. Can gain pre-lawsuit testimony only if it is meant to perpetuate a suit
being filed
b. Perpetuate: preserving testimony that might be lost, not figuring out who
to sue
c. Very limited instances and it generally depends on the jurisdiction
C. Rule 26 - Relevance of Evidence, Mandatory Disclosure & the Discovery
Plan
a. Rule 26 (a) - Mandatory Disclosure
1. Duty to disclose: witnesses, documents, damages, insurance, people
likely to have information
i. Exception: if information is solely to be used for impeachment of
witnesses
ii. Identify expert witnesses in advance when they are determined
2. Information that will support its claims and defenses
3. Parties not required to automatically disclose items it does not intend
to use (Cummings)
4. Always disclose insurance agreements
b. 26 (b) - Relevance (has a lot to do with interrogatories)
1. Can only gain evidence relevant to claim or defense, but a court can
get around this and expand the scope for specific things
2. Information aimed at developing new claims that are not identified in
pleadings is NOT relevant
3. Information relevant to the claim/defense of ANY party is
4. Relevant to the subject matter of the action with good cause (decided
by judge)
c. 26 (b) - Limitations
1. Can never get work product or materials prepared in anticipation of
litigation
2. Need not be admissible if it leads to the discovery of admissible
evidence --> can't just ask for it for no reason
3. Things that create an undue burden or cost --> party who wants to
avoid burden must make this showing
d. 26 (f) - Conference for planning mandatory
D. How do you get evidence?
a. Depositions (Rule 30)
b. Interrogatories (Rule 25/33) --> not binding
c. Production of tangible evidence and documents (Rule 34)
d. Request for admission (Rule 26)
e. Medical exam (35) --> court order
f. Request for admission (stipulation) (Rule 36)
g. Discovery plan is required
XI. Summary Judgment
A. Rule 56
a. Plaintiff/Defendant do not need supporting evidence to allege no GIOMF
and thus summary judgment
b. Defense to motion requires admissible evidence
1. No allegations or denials, or reliance on complaint
2. Must show there IS a GIOMF
3. If NMP does not respond, summary judgment, if appropriate, will be
entered
c. Court my allow continuance if affidavits are not present
d. NO AFFIDAVITS IN BAD FATH! get a fine and sanction.
B. Adickes: Moving party bares the burden of demonstrating (officially, not with
hearsay) that no issue of material fact exists or that no fact exists to support
the claim of the non-moving party
a. The facts alleged, or inadequacy of facts alleged, must be taken in light
favorable to the non-moving party
b. Must establish absence of genuine issue (meaning, in this case, they had to
officially allege no policeman was present)
1. If the absence of genuine issue/critical fact is not established, then the
opposing party doesn't have to say that the fact exists because of the
light most favorable...
i. If they had come up with evidence asserting the policeman wasn't
there, which is a crit fact, THEN petitioner would have had to rebut
c. Party opposing motion bears the burden of responding ONLY
AFTER the moving party has met its burden of coming fwd with
proof of the absence of any GIOMF
C. Celotex
a. When discovery shows that the non-moving party cannot prove an
essential element of CoA, the moving party does not have to come
forward with evidence demonstrating the absence of GIOMF
b. Burden is not on MP to produce evidence showing absence with respect to
issue that the NMP bears burden of proof
1. They can point out the absence of evidence
2. NMP needs to refute this claim
XII. Trial
A. Juries
a. Rule 2: trial by jury is only for cases at law, not equity
1. Law: application of a rule, compensatory damages
2. Equity: injunction, specific performance, declaratory judgment,
reformation, rescission
3. Generally speaking, the specific Acts discussing each action will tell
you if there is a right to a jury or not
b. Beacon Theaters: Cannot deprive a person of their right to a jury trial, thus
when claims and counterclaims are crossed in law and equity, those in law
will be decided by a jury and those in equity decided by a judge.
1. When so intertwined, as In this instance, the declaratory judgment
should have received a jury trial because the subject matter was
primarily legal.
c. "Clean-up doctrine" - legal claims appearing in an equitable claim could
be disposed of by court - overruled
1. Dairy Queen: with both legal and equitable issues, a partial jury trial
must be given on the legal matters
i. Breach of contract portion to be tried by jury; on the injunction, the
court must decide
ii. Law comes first, and then the court will be bound by those facts on
the claim for equity
d. Ross v. Bernhard: right to jury trial attaches to issues in derivative actions
to which which the corporation would be entitled to a jury
e. What happens when the statute does not tell you whether a jury is
provided? - Chauffeurs
1. Always look to the statute first
2. Look for analogous common law action to see if legal or equitable
3. Look to see if claim is legal or equitable
i. Here, we had one of each
4. Remedy sought is legal or equitable? here it is legal
5. Appears as though the type of relief wins out
B. Judicial Control Over Jury Decision
a. Province of Judge & Jury
1. Court: determine rules
2. Jury: determine facts that should govern these rules
3. Many times these get intermingled, as in Markman:
i. Determining the meaning of a term is for the judge, not the jury -->
interpreting documents is purely legal and a matter for judges
b. Verdicts & Jury Misconduct
1. Rule 49: Form of Verdicts
i. General: "yes" or "no"
ii. Special Verdict - answer a series of questions regarding each facet
of case; not just yes or no to the entire thing
iii. General Verdict of Interrogatories - Yes or No and answers to
series of questions that are less extensive than SV
Usually meant to guarantee that the jury has followed the
instructions properly
iv. Quotient Verdict is NOT okay --> this is when the jurists guess
and add and divide numbers to determine the basis for their award;
is not based on facts and thus illegal
2. If the jury decides something beyond the issues submitted by the court,
they make be disregarded (Robb)
3. Misconduct
i. Improper to decide the case on anything but actual merits or award
damages on anything besides each juror's evaluation
ii. Personal affidavit of a juror may NOT be used to impeach a
verdict; someone else must do it
iii. Hukle v. Kimble - Award averaging is strictly forbidden
4. Judicial Power to Override Verdict
i. Rule 50: Groups the two together as "judgment as a matter of law"
ii. Directed Verdict - 50(a)
Evidence is before the jury but they have not deliberated; motion
can be made at any point before the facts are submitted for
deliberation
Standard - in light most favorable to NMP
Scintilla Test: if there is a scintilla of evidence that the jury
could find for the nonmoving party, not granted
Substantial Evidence Test: grant motion UNLESS there is
substantial evidence that the jury would find for the NMP -used mostly
iii. Judgment Notwithstanding the Verdict (NOV) - 50(b)
Judge sets aside jury's verdict and rules in favor of losing party
Must have made a motion for DV in order to move for NOV after
Same standard as above
iv. Rule 59 - Granting of a New Trial
Aetna: Judge may grant new trial if verdict is against the clear
weight of evidence or is based upon false evidence
Admittur - denial of new trial if D agrees to increasing award
(could be against 7th amend)
Remittitur - denial of new trial unless P will agree to reduction in
award
C. Relief From Judgment
a. Rule 60
1. Mistake or excusable neglect --> evidence is discovered that was not
presented at trial
2. New evidence is obtained and was not presented at trial
i. Must change result of trial, must be admissible, failure to present
must be excusable, must be positive for moving party
3. Fraud
XIII. Res Judicata and Collateral Estoppel
A. Claim Preclusion (Res Judicata)
a. Precluded when...
1. Final Valid Judgment on Merits
i. Think Pennoyer
ii. Des Moines
Subject matter jurisdiction does not always invalidate a judgment
for the purposes of RJ
Will only allow SMJ to break validity when: abuse of authority,
substantially infringed on party, rendering court lacked capacity to
make judgment
iii. Final - final conclusion
iv. Merits - decided on merits, this includes motions to dismiss and
summary judgment
2. Same Claim
i. Rush - transaction is majority rule
Transaction Preclusion - you must bring every claim related to a
transaction/event otherwise once one portion is decided, following
portions are precluded from litigation
Recurring transactions, like rent, are the same transaction. If
you don't sue for the entire thing (like, with acceleration
clause), you lose the right to sue for the rest down the road they merge (Jones)
BARS ALL CLAIMS THAT WERE LITIGATED OR
COULD HAVE BEEN LITIGATED REGARDLESS
Primary Rights - Can do separate claims for all claims made (tort,
contract, etc)
3. Same Parties
i. This is how you distinguish between claim and issue preclusion
ii. Privity between parties will one another --> Estate of A is bound by
A's actions
B. Issue Preclusion (Collateral Estoppel)
a. Same Issue? Think about the tree cutting --> title vs. other methods
b. Actually Litigated?
1. Was not dismissed for failure to state a claim, summer judgment or
other motion where the exploration of the issue did not continue.
2. Cromwell: need evidence that the ACTUAL ISSUE was presented and
raised during litigation; not just same subject matter.
c. Necessarily Decided?
1. Need to show that there was a judgment rendered on that issue --> on
basis of issue
i. If judgment was awarded on something else, it wasn't necessarily
decided
2. Russell: If the issue that decided the case was not disclosed, no
estoppel
i. Uncertainty or case decided as a group of unspecified issues can be
re-litigated
d. Valid final judgment on merits
C. Who is bound by issue preclusion?
a. Old rule: only mutuality --> if bound by first case, bound by second.
Bernhardt got rid of this.
b. NONE OF THIS WORKS IF THE THIRD PARTY WANTING
PRECLUSION COULD HAVE BEEN A PARTY IN THE FIRST CASE!
c. Non-Mutual Defensive Issue Preclusion (Blonde-Tounge)
1. A sues B, B wins. A tries to sue C, C claims preclusion; can be
allowed.
2. Party resisting must show that he did not have
i. A fair chance to litigate procedurally, factually or evidentiary
ii. Did he have an incentive to litigate to the fullest? Was it hard to
litigate?
iii. Did he present all the facts or evidence?
d. Non-Mutual Offensive Issue Preclusion (Parklane)
1. A sues B, B loses; C sues B --> C wants
2. Did B have incentive to litigate? Was it fair? See above.
e. The new party must assert preclusion, otherwise it is a due process
violation