1. CIVIL PROCEDURE CLASS 40 Professor Fischer Columbus School of Law The Catholic University of America November 27, 2002

2. 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)

3. 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.

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

5. 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

6. 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?

7. 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)?

8. 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)

9. 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.

10. 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)

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

12. CLAIM SPLITTING CLAIM PRECLUSION HYPO Jeremys car is damaged in a collision with Maries car. Jeremy sues Marie in negligence for damage to the right fender of his car. The claim is dismissed on Maries motion for summary judgment. Can Jeremy then sue Marie for damage to the left fender of his car allegedly suffered in the same accident?

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

14. 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?

15. 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?

16. 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?

17. 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?

18. 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)

19. 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

20. 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?

21. 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

22. 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 students capacity precluded in the second action?

23. 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 Jessies second suit?

24. 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?.

25. 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 wifes services and companionship. Under this possibility, contributory negligence was not determined in the first case at all.

26. VALID AND FINAL JUDGMENT Same as claim preclusion

27. 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?

28. 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

29. 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.

30. Happy Thanksgiving!