Civil Procedure Professor Goldberg
Spring, 2007
Final Judgment for Claim/Issue Preclusion
When is a judgment final for claim/issue preclusion?
Under the Restatement Rule, a judgment is “final” even if the judgment is
on appeal. This rule is often applied in federal courts.
A contrary rule is that a judgment is not “final” until all appeals or
opportunities for appeal are concluded. This rule is often applied in state
courts.
1. Which rule makes more sense?_________________________________
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2. Assume the following facts:
In lawsuit #1, A sues B. B owns Blackacre and refuses to allow A, an
adjoining landowner to cross Blackacre. After trial, a judgment is entered for A
that states that A has a right of way and can cross Blackacre. B appeals.
B still refuses to allow A to cross Blackacre and A files another lawsuit
against B. Why is that a different claim?_______________________________
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3. A then moves for summary judgment based on the judgment in lawsuit #1.
A argues that the judgment was final and the issue of A’s right of way was
litigated and decided and essential to the judgment in lawsuit #1.
If A’s lawsuits were filed in a federal court that follows the Restatement Rule,
what result in lawsuit #2? ___________________________________________
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4. Next assume that B’s appeal is successful and the judgment in lawsuit #1
is reversed on appeal. If the summary judgment was granted in lawsuit #2, what
course of action will B take? (Check Rule 60(b)(5))________________________
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finality.S07 10/22/11