This website uses cookies to ensure you get the best experience on our website. Learn more

Law Outlines > Civil Procedure Outlines

Repose Direct Attack And Preclusion Outline

Updates Available

This is an extract of our Repose Direct Attack And Preclusion document, which we sell as part of our Civil Procedure Outlines collection written by the top tier of NYU School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Civil Procedure Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:


  1. Direct Attacks on Judgment: go back to the court that issued the judgment and ask it to vacate

Rule 60: On motion, court can within a reasonable time, no more than a year, relieve a party from judgment ordered b/c of mistake, inadvertence, surprise, or excusable neglect, newly discovered evidence that could not with reasonable diligence have been discovered in time to move for a new trial under 59(b); fraud, misrepresentation, or misconduct by opposing party; if the judgment is void; if the judgment has been satisfied or if its based on an earlier judgment that has been reversed or vacated; or any other reason that justifies relief

Remittitur: Although he can’t directly reduce damages, a judge can grand a conditional new trial, unless plaintiff aggress to accept a reduced award of $X.

Additur: in state courts, similar process, whereby a state can grant a conditional new trial unless defendant agrees to a higher award. Federal courts cannot use additur, though they can use remittitur.

Kupferman v Consolidate Research

Defendant seeks vacate of judgment for plaintiff based on Rule 60(b), fraud upon the Court. 2nd Circuit says failure to disclose an instrument which he could reasonably have supposed that his adversary knew of does not constitute “fraud upon the court.” Court denies motion to vacate.

Rozier v Ford Motor Co.

Rosier asked Ford for some cost-benefit analysis it did, which it claimed it didn’t have. Rozier later found it, alleged misrepresentation in not turning it over. Moving party has to show that but for the violation, it would have had a fuller and fairer opportunity to be heard.

Pierce v Cook

Driver who Cook had hired to transport materials got into accident, killed one and injured several. The families sued. He removed to federal court on diversity, but one of the plaintiffs got back into state court b/c a caretaker was from the same state. Federal court plaintiffs lost, in part due to an Oklahoma precedent. State court plaintiffs won when Okla. Sup Ct overturned that precedent. Federal Court plaintiffs who lost moved for rule 60(b)(6) relief based on “extraordinary situation.” Court says that when plaintiffs are forced to litigate in federal court and lose, and other plaintiffs from the same incident are successful in state court, this is an extraordinary situation, and relief under 60(b)(6) is appropriate to accomplish justice.

Policy: Pierce is the exception to the general rule. But in general there’d be too much uncertainty if verdicts could always be overturned, there would be too many of these cases if we allowed new trials any time applicable law changes ex post. Permanence of decisions builds confidence in judicial system.

  1. (Preclusion)—as opposed to direct attacks, this is where a second action is brought that would result in a judgment at variance with the result in the first action. Because of full faith and credit clause, preclusion crosses state jurisdictional boundaries.

i. Claim preclusion (formerly res judicata, the hatchet) Once you have brought a claim against a party arising out of a given event, you cannot bring another claim against that party for the same event. Even if the first claim was negligence, and this one is breach of contract, doesn’t matter. This applies to every claim you did raise about that event and every claim you could have made but failed to.

Creates incentive to include any potential claims in initial action.

Restatement of Judgments

§ 17 (p 1158): A judgment is conclusive, in a subsequent action between parties on the same or a different claim, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

§ 24: What constitutes a transaction and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding and usage.

Conditions for Claim Preclusion:

  • Valid Judgment in forum 1

    1. Notice

    2. Subject matter jurisdiction

    3. Personal jurisdiction

  • Same parties

  • Same claim

Fetter v Beale (SKULL FALLING OUT): plaintiff brought an action for battery and recovered damages for bruised skull. Later, part of his skull came out of his head, as a result of same battery. Tried to bring another action for more damages. Court says plaintiff cannot sue again on the same matter, alleging a new theory, new type of relief, or extension of damages. New claim is merged into old claim, and therefore barred.

Durfee v Duke

Nebraska Supreme Court decided it had subject matter jurisdiction over a parcel of land and that it was in Nebraska. Plaintiff later brought suit in Missouri, claiming Nebraska never had subject matter jurisdiction to decide whose land it was. Missouri Sup Ct says when jurisdictional issues have been “fully and fairly litigated” by the parties and finally determined in the courts of another state, no further inquiry by courts in another state is allowed.

“A judgment is entitled to full faith and credit-even as to questions...

Buy the full version of these notes or essay plans and more in our Civil Procedure Outlines.