CIVIL PROCEDURE CLASS 40
Professor Fischer
Columbus School of Law
The Catholic University of America
Nov. 28 2005
ELEMENTS OF CLAIM
PRECLUSION
1. Prior suit that proceeded to a final
valid judgment on the merits
2. Present suit arises out of same claim
as the prior suit
3. Same claimant against the same
defendant (or litigants in privity with
them)
CONTRASTING RES JUDICATA
WITH JOINDER
Why does Glannon
describe res judicata
as a myrmidon?
Contrast the rules
for res judicata with
the joinder rules
VARIETY OF PRECLUSION
RULES
Note that each state
system has its own
rules on preclusion
Note also that there
has been a general
trend of increased
preclusion
WHAT IS THE SAME CLAIM?
Federal courts generally employ a
“transactional” approach to determining
whether the claim in the first suit is the
same as the claim in the second suit.
Describe this “transactional” approach
(See Restatement (2d) of Judgments s.
24
ALI RESTATEMENT (2d) OF
JUDGMENTS
Most influential modern claim preclusion
test
§24(1) “…the claim extinguished
includes all rights of the plaintiff to
remedies against the D with respect to
all or any part of the transaction, or
series of connected transactions, out of
which the action arose.”
TRANSACTION/OCCURRENCE
TEST BARS….
Not only claims that were brought in
the original action but also claims that
were available to the plaintiff in the first
suit if they arose out of the underlying
transaction/occurrence that gave rise to
the first suit
Note that this is a more narrow
approach than the joinder rules (see R.
18)
OTHER MINORITY
APPROACHES
To determining what is the same claim
1. Same evidence test
2. Same right test (also called primary
rights theory)
CLAIM SPLITTING CLAIM
PRECLUSION HYPO
Jeremy’s car is damaged in a collision
with Marie’s car. Jeremy sues Marie in
negligence for damage to the right
fender of his car. The claim is
dismissed on Marie’s motion for
summary judgment. Can Jeremy then
sue Marie for damage to the left fender
of his car allegedly suffered in the same
accident?
SAME PARTIES/PARTIES IN
PRIVITY
What is privity for the purposes of res
judicata?
Gonzalez v. Banco Central
Corp. (1st Cir. 1994)
What are the key
facts?
What is the
procedural history?
What is the issue on
appeal?
Did the Gonzalez
plaintiffs win their
appeal to the First
Circuit?
CONTRASTING RES JUDICATA
WITH JOINDER
Why does Glannon
describe res judicata
as a myrmidon?
Contrast the rules
for res judicata with
the joinder rules
VARIETY OF PRECLUSION
RULES
Note that each state
system has its own
rules on preclusion
Note also that there
has been a general
trend of increased
preclusion
ISSUE PRECLUSION
What is its function?
What is its other name?
CONTRAST CLAIM/ISSUE
PRECLUSION
Res judicata is a BLUDGEON;
collateral estoppel is a scalpel
What are the elements of issue
preclusion?
ELEMENTS OF ISSUE PRECLUSION (s. 27
Restatement (Second) of Judgments
Same issue
Actually litigated
Actually decided (final valid judgment
ion the merits)
Determination is essential to judgment
Some state courts require mutuality, i.e.
same parties
Final Valid Judgment on Merits
Same requirement as for claim
preclusion
Same Issue was Litigated and
Determined in Case 1
NECESSARY TO THE
JUDGMENT
A useful test: ask yourself if the issue
had been decided the opposite way,
would the same judgment have been
entered? If so, the judgment did not
depend on the way the issue was
actually resolved.
Mutuality
Parklane Hosiery v. Shore 439 U.S. 322,
CB p. 914
What is a proxy statement?
Offensive vs. Defensive use of collateral
estoppel
You should know the case of BlonderTongue, 402 U.S. 313, cited in Parklane
at 916.
Offensive Collateral Estoppel
Justice Stevens in Parklane (CB p. 917):
“Offensive use of collateral estoppel
does not promote judicial economy in
the same manner as defensive use
does.”
Why not?
Offensive Collateral Estoppel
Provides incentive for Ps to “wait and
see”
May be unfair to a defendant
According to the majority in Parklane,
should the court allow the offensive use
of collateral estoppel in the
circumstances of that case?
Why did the dissent disagree?
Due Process Limit on
Nonmutual Collateral Estoppel
Applies only to litigant who has already
lost on the issue, not someone who has
never had a chance to litigate the issue.
P.E. 36
CB p. 941