CIVIL PROCEDURE CLASS 22
Professor Fischer
Columbus School of Law
The Catholic University of America
November 6, 2001
WRAP-UP OF LAST CLASS
We finished our discussion of summary
judgment as one type of pretrial adjudication
We learned about voluntary and involuntary
dismissals as another form of pretrial
adjudication
We began to learn about directed verdictsas
yet another kind of preetrial adjudication
WHAT WILL WE DO TODAY?
Learn about new trial motions
Learn about motions to vacate
judgment
Learn about claim preclusion (res
judicata)
Commence our study of issue
preclusion (collateral estoppel)
NEW TRIAL MOTIONS
FRCP Rule 59
Must file motion for a new trial no later than
10 days after entry of judgment 59(b)
A judge can grant a new trial sua sponte no
later than 10 days after entry of judgment
59(d)
What are the grounds for granting a motion
for a new trial?
GROUNDS FOR GRANTING A NEW TRIAL
INCLUDE TRIAL ERRORS AND WRONG
RESULT:
Judge realizes he mistakenly admitted
evidence over correct objection
Newly discovered evidence
Judge realizes she wrongly instructed jury
over correct objection (see FRCP 51)
Verdict against the weight of the evidence
Excessive/inadequate verdict (see
remittitur/additur above)
ADDITIONAL GROUNDS FOR
NEW TRIAL
Improper conduct by counsel or judge
Jury misconduct (e.g. verdict not
unanimous/inconsistent)
When can misconduct in a jury’s deliberations
be grounds for a new trial? To what extent is
what is said in the jury room admissible? See
Fed. R. Ev. 606(b) at CB p. 510
Do you agree that Fed. R. Ev. 606(b) strikes
an appropriate balance?
Fed. R. Evid. 606(b)
“a juror may not testify as to any
matter or statement occurring during
the course of the jury’s deliberation or
to the effect of anything upon that or
any other juror’s mind or emotions as
influencing the juror’s mental processes
in connection therewith . . .”
Fed. R. Evid. 606(b)
“. . .except that a juror may testify on
the question whether extraneous
prejudicial information was improperly
brought to the jury’s attention or
whether any outside influence was
improperly brought to bear upon the
juror.”
PREJUDICE REQUIRED FOR
NEW TRIAL UNDER RULE 59
Trial errors can only give rise to a new
trial if they
1. Affect the substantive rights of the
parties
2. Are not cured by the jury
instructions
3. Were brought to the judge’s
attention when they were made
THE THIRTEENTH JUROR
Can the judge order a new trial just
because he disagrees with the jury’s
verdict?
THE THIRTEENTH JUROR
Can the judge order a new trial just because
he disagrees with the jury’s verdict? No – but
he can order a new trial where the evidence
is strong enough to rationally support the
jury’s verdict but he believes that the verdict
is against the clear weight of the evidence.
He can consider the credibility of the
witnesses. Of course, if the motion is granted,
there will be a new trial and the JURY not the
judge will be the trier of fact in the new trial.
MOTIONS TO VACATE
JUDGEMENT – RULE 60
FRCP 60 - judgments may be vacated
both for clerical mistakes (60(a)) and
other reasons set out in 60(b)
Can you move for a j.n.o.v., new trial,
and motion to vacate judgment at the
same time?
CLERICAL MISTAKES IN
JUDGMENTS OR ORDERS
FRCP 60(a)
When can courts correct clerical
mistakes in judgments, orders, or other
parts of the record?
What is a “clerical mistake”?
CLERICAL MISTAKES IN
JUDGMENTS OR ORDERS
When can courts correct clerical mistakes in
judgments, orders, or other parts of the
record? At any time, on motion of party or on
court’s own initiative
What’s a clerical mistake? A minor, ministerial
error arising from simple oversight or
omission. NOT substantive factual or legal
error
60(b): OTHER REASONS FOR
VACATING JUDGMENT
2 categories of motions:
1. Motions based on some grounds are
subject to a timing limitation that they must
be made no more than 1 year after entry of
judgment or order: which grounds are these?
2. Motions based on the other grounds for a
60(b) motion must just be made within a
“reasonable time”. Which are these?
60(b):Motion must be made within 1
year of judgment/order
CATEGORY 1: subject to timing limitation
that they must be made no more than 1 year
after entry of judgment or order:
1. Mistake, inadvertence, surprise, excusable
neglect
2. Newly discovered evidence that by due
diligence could not have been discovered in
time to move for a new trial under 59(b)
3. Fraud, misrepresentation, or other
misconduct of an adverse party
60(b) motions that must be made
within a reasonable time
4. judgment is void (e.g. no personal
jurisdiction, no subject matter
jurisdiction)
5. Judgment satisfied, released or
discharged
6. Catch all: any other reason
justifying relief from the opeartion of a
judgment in the interests of justice
CATCH-ALL CATEGORY: FRCP
60(b)(6)
“for any other reason justifying relief
from the operation of the judgment”
reserved for extraordinary
circumstances
Can the catch-all category be used for
motions that would also fit within
another 60(b) category?
PRACTICE EXERCISE 20
CB p. 530
1. Would the defendant’s motion for directed
verdict be allowed on the state claim for fraud
under the civil service statute (clerks A-G)?
2. On the conspiracy claim? (clerks H-P)
3. On the section 1983 discriminatory claim?
(clerks Q-Z)
CLAIM PRECLUSION
Also known as the doctrine of res judicata
What is res judicata?
What is the idea of “merger” and “bar” - see
Restatement (2d) of Judgments s. 17 at CB p.
885
What is the purpose of res judicata?
What does FRCP 8 (c ) say about res
judicata? Why?
NB. Res judicata can be waived!
CLAIM PRECLUSION V. ISSUE
PRECLUSION
What is the basic difference between
claim preclusion and issue preclusion?
(see CB p. 884)
What is the difference between claim
preclusion and stare decisis?
CLAIM PRECLUSION
Does claim preclusion extend to claims
only to claims that were made in the
first lawsuit, or does it also extend to
claims that could or should have been
litigated in the first lawsuit?
ELEMENTS OF RES JUDICATA
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 parties to both suits, or
parties are in privity
FINAL VALID JUDGMENT ON
THE MERITS
VALID: To be valid, court rendering judgment
must have valid subject matter and personal
jurisdiction (if action dismissed for lack of p.j.
or s.m.j., no claim preclusion for action
brought in court with p.j. or s.m.j.)
You can’t argue that a judgment is invalid
simply because it was based on error, e.g.
relying on unconstitutional statute
FINALITY OF JUDGMENT
There must be nothing left for judge to do
but enter judgment
Will a judgment determining liability be
final for claim preclusion before
damages have been adjudicated?
What about dismissal of one of Ps
claims, if the other claim is allowed to
continue?
Will the grant of preliminary injunctive
relief bar an action for permanent
injunctive relief for the same claim?
Does an appeal destroy finality?
JUDGMENT ON THE MERITS
Disposition based on validity of Ps claim
rather than technical procedural ground
Is a judgment entered after a full trial a
judgment on the merits? What about:
12(b)(6) dismissal? 12(b)(2) dismissal?
Voluntary dismissal under FRCP 41(a)?
A second voluntary dismissal under
FRCP 41(a)?
Dismissal for failure of prosecution
under FRCP 41(b)?
SAME CLAIM
Federal courts 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 at p.
887 of CB)
NOTE IT BASICALLY MIRRORS THE JOINDER
RULES (see Rule 20)
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?
Gonzalez: Final/Valid
Judgment on the Merits
Did the 1st Circuit find that there was a
final judgment on the merits in the
earlier Rodriguez suit?
Gonzalez: Same Claim
Did the 1st Circuit find that the claims
asserted in the Rodriguez suit were the
same as in the Gonzalez suit?
Why or why not?
Gonzalez: Same
Parties/Parties in Privity
Were the parties the same in the
Rodriguez/Gonzalez suits? Why or why not?
Did the 1st Circuit find that the parties in both
suits were in PRIVITY? Why or why not?
What are some examples cited by the 1st
Circuit of when parties would be in privity?
What is the doctrine of virtual representation?
Why did the Gonzalez court find it did not
apply?
Gonzalez: Same
Parties/Parties in Privity
Why are courts unwilling to
interpret privity broadly? Why does
Judge Selya describe it as a “murky
corner of the law?” (CB 903)
ISSUE PRECLUSION
Like claim preclusion, issue preclusion is
part of the broader topic of former
adjudication, that is, the effect of
judgments on subsequent litigation
Issue preclusion - precludes relitigation
of a previously decided issue
Also known as collateral estoppel
CONTRAST CLAIM/ISSUE
PRECLUSION
Res judicata is a BLUDGEON; collateral
estoppel is a scalpel
Issue preclusion bars from relitigation ONLY
issues that have been actually litigated and
determined
Issues can be barred from relitigation in some
claims that do not involve same parties to
previous litigation
How is issue preclusion both broader and
narrower than claim preclusion?
ELEMENTS OF ISSUE
PRECLUSION
Same issue
Actually litigated thus an admission is
not enough for issue preclusion to apply
Actually decided by a valid and final
judgment
Determination is essential to judgment
Some courts require mutuality, i.e.
same parties
SAME ISSUE
U.S. sues Student, alleging nonpayment on a
student loan, signed on 3/12. Student
defends on grounds of incapacity, alleging
that his mental state on the day in question
prevented him from entering into an
enforceable contract. Student loses. U.S.
sues Student alleging non-payment of a
second student loan signed on the same day.
Is the issue of student’s capacity precluded in
the second action?
ANOTHER HYPO
Federal government criminally prosecutes an
IRS agent, accusing her of stealing tax
revenue. She is acquitted. Government then
sues Agent in a civil action to recover funds
allegedly embezzled in the same criminal
acts. Agent seeks to invoke preclusion on the
grounds that the previous case demonstrates
acts did not occur. Does preclusion apply?
What if the order of the cases are reversed?
NEW EVIDENCE
What if a party discovers new evidence
on the issue. Should that party be
allowed to relitigate the issue in a
second action?
ACTUALLY LITIGATED AND
DECIDED
Jessie and Bertha were driving in the car and
collided with a train. They were both injured.
B sued for her personal injuries, J sued for
loss of consortium and personal services. B
won damages; J recovered nothing. J brought
a second suit seeking recovery for his
personal injures. Assume the second suit
permitted because no transactional test in
that state. Did collateral estoppel apply to
bar J from recovering in the second suit on
the basis that the court had already decided
the issue of whether J was contributorily
negligent?.
HYPO
P sues D for copyright infringement and
breach of contract.
1. Assume a jury trial. The jury renders a
general verdict for D. Does collateral
estoppel apply to bar P from relitigating issue
of breach of contract? copyright
infringement?
2. Now assume a brench trial. The judge
finds both copyright infringement and breach
of contract. Does collateral estoppel apply?
NECESSARY TO THE
JUDGMENT
Add the following to the previous hypo.
The first action was heard by a judge
who determined:
1. RR not negligent
2. Jesse was contributorily negligent.
Should the court in a subsquent claim
hold Jesse precluded from relitigating
both those issues? Or neither?
HOULT CASE (3d Cir. 1998)
What was Jennifer Hoult’s cause of action in
the first action?
What was the outcome of the first action?
What is David Hoult’s cause of action in the
second action?
What is the procedural issue in the second
action?
How did the trial court rule?
THE HOULT APPEAL
Does the First Circuit affirm or dismiss
Jennifer Hoult’s appeal?
What is the First Circuit’s reasoning?
MUTUALITY AND COLLATERAL
ESTOPPEL
Old rule: parties had to be the same
New rule in federal court: Parklane Hosiery
Co. v. Shore (1979)
NOTE THAT PARKLANE applies only to federal
courts. State courts are not obligated to
follow Supreme Court. You will need to check
the law carefully to see whether a jurisdiction
has abandoned mutuality, and if so, to what
extent.
DEFENSIVE NON-MUTUAL
COLLATERAL ESTOPPEL
In Blonder-Tongue, the Supreme Court first
endorses the use of nonmutual estoppel
Key facts of Blonder-Tongue
What is the policy justification for the
Supreme Court’s reversal of its long-standing
rule requiring mutuality?
What is the difference between the use of
collateral estoppel in Blonder-Tongue and in
Parklane?
DEFENSIVE NONMUTUAL
ESTOPPEL
Suit 1: P sues D1 (P loses on Issue A)
Suit 1: P sues D2 (D2 pleads collateral
estoppel to bar plaintiff from relitigating
Issue A)
PARKLANE HOSIERY V. SHORE
Offensive nonmutual estoppel
What are the key facts in Parklane?
OFFNENSIVE NONMUTUAL
COLLATERAL ESTOPPEL
Suit 1: P1 sues D (D loses on Issue A)
Suit 2: P2 sues D (new plaintiff invokes
collateral estoppel to establish Issue A
in her suit against D)
What are the risks posed by offensive
use of estoppel?
SUPREME COURT IN
PARKLANE
Does the Supreme Court categorically
endorse or reject offensive nonmutual
collateral estoppel?
What factors must lower courts
consider?
4 PARKLANE FACTORS
1. Could nonparty have joined prior
litigation?
2. Was subsequent litigation foreseeable at
time of first suit?
3. Is judgment being relied on consistent
with prior judgments against this D?
4. Are there any procedural opportunities
available to D in second action that did not
exist in the first that would lead to a different
result?