s from Class Catholic University of America

							CIVIL PROCEDURE CLASS 40
Professor Fischer
Columbus School of Law
The Catholic University of America
November 27, 2002
WRAP-UP OF LAST CLASS

   We started our unit on finality of
  judgments.
  We learned about the basic elements of
  claim preclusion (final valid judgment
  on the merits, same claim, same
  parties/parties in privity).
  We discussed the rational for claim
  preclusion rules : certainty, efficiency
  and fairness (see Rule 1 of the FRCP)
WHAT WILL WE DO TODAY?
 Discuss the elements of claim
 preclusion more fully and consider how
 the claim preclusion rules were applied
 in the Gonzalez case.
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
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)?
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 at p.
 887 of CB)
 NOTE IT BASICALLY MIRRORS THE JOINDER
 RULES (see Rule 20)
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
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?
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
 How is issue preclusion both broader and
 narrower than claim preclusion?
 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
 What are the elements of issue 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?
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. Jury
  rendered a general verdict. J brought a
  second suit seeking recovery for his personal
  injures.
   Does claim preclusion bar Jessie’s second
  suit?
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?.
ACTUALLY LITIGATED AND
DECIDED
  Hypo is from Illinois Central Gulf RR v. Parks,
 290 N.E. 2d 1078 (Ind. Ct. App. 1979)
 Court rejected issue preclusion. RR based
 case for issue preclusion on possibility that
 first jury returned verdict against the husband
 because he had been contributorily negligent.
 Equally possible that it was because husband
 proved no damages for loss of wife’s services
 and companionship. Under this possibility,
 contributory negligence was not determined
 in the first case at all.
VALID AND FINAL JUDGMENT
 Same as claim preclusion
NECESSARY TO THE
JUDGMENT
 Davis sued Rios for negligence in an
 automobile collision. The jury found Rios
 negligent but also found Davis contributorily
 negligent. Judgment entered for Rios.
 Should the court in a subsquent claim by Rios
 for injuries suffered in the same collision hold
 that Rios was barred from relitigating on the
 basis that his contributory negligence
 determined in first proceeding?
NECESSARY TO THE
JUDGMENT
  The finding that Rios was negligent was not
 essential to the judgment and the judgment
 was not based thereon. Since the judgment
 was in favor of Rios he had no right or
 opportunity to complain of or appeal from the
 finding that he was guilty of such negligence
 even if such finding had been without support
 in the evidence. Right of appeal is from a
 judgment not a finding.
 Therefore, no issue preclusion
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. Applying this test to
 Rios, we find that once jury found Davis
 to be contributorily negligent, Rios had
 to win.
Happy Thanksgiving!