1. CIVIL PROCEDURE CLASS 39 Professor Fischer Columbus School of Law The Catholic University of America November 24, 2003

2. Venue vs. Subject Matter Jurisiction What are the differences between venue and subject matter jurisdiction?

3. Venue vs. Subject Matter Jurisiction What are the differences between venue and subject matter jurisdiction? Venue can be waived - see 12(b)(3), 12(g), 12(h)(1) Court does not have to question venue sua sponte as R. 12(h)(3) requires for subject matter jurisdiction Parties can consent to what would otherwise be improper venue (using, for example, a forum selection clause)

4. VENUE and COLLATERAL ATTACK Unlike personal jurisdiction, proper venue is not a constitutional requirement for a valid judgment and cannot be raised by way of collateral attack.

5. Courts Have Laid Down Exceptions to the Venue Requirements One of the most important is exceptions is for actions that are removed to federal court (because removal statute specifies the district to which case must be removed at §1441(a)) Another example - “local” suits that must be brought in district where land is located. Most actions are not “local” but “transitory”.

6. FINALITY OF JUDGMENTS: CLAIM PRECLUSION Also known as the doctrine of res judicata What is res judicata? What is the purpose of res judicata? What is the idea of “merger” and “bar” - see Restatement (2d) of Judgments s. 17 at CB p. 885 What does FRCP 8 (c ) say about res judicata? Why? NB. Res judicata can be waived!

7. CLAIM PRECLUSION AND ENFORCEMENT Once a damage claim succeeds, the claim becomes a claim on the money judgment. P becomes judgment creditor, and D judgment debtor. If D doesn’t satisfy judgment, P must bring an enforcement action vs. D. See R. 69(a) Claim preclusion will help judgment creditor in this enforcement action. Judgment debtor cannot relitigate on the merits.

8. 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?

9. 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? What must D show to prove that res judicata bars a P’s claim (the elements of res judicata)?

10. 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 parties to both suits, or parties are in privity

11. 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 Is a dismissal without prejudice a final valid judgment on the merits? See R. 41 What about a dismissal under R. 41(b)? Summary judgment in favor of P?

12. CONTRASTING RES JUDICATA WITH JOINDER Why does Glannon describe res judicata as a myrmidon? Contrast the rules for res judicata with the joinder rules

13. 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

14. 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?

15. 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)?

16. 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)

17. 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.”

18. 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)

19. OTHER MINORITY APPROACHES To determining what is the same claim 1. Same evidence test 2. Same right test

20. 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?

21. SAME PARTIES/PARTIES IN PRIVITY What is privity for the purposes of res judicata?

22. 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?

23. 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?

24. 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?

25. 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?

26. 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)

27. Happy Thanksgiving!