#11422 - Preclusion - Civil Procedure

Preclusion

Affects how pre-litigation phases.

1. Res judicata

2. Collateral Estoppel

3. Stare Decisis

Purpose of final judgment/ Policies

• Finality allows the parties repose

• Allows parties/others affected by the result to plan for future once judgment is rendered

• Conserves judicial time, allows court to move on to other judicial business

• Finality may save court system the embarrassment that would result if same matter were litigated more than once, and courts gave different answers (legal fiction of consistency)

Criticisms

• What if parties don't discover relevant information until after the judgment?

• What if person affected by the judgment is not alerted to the litigation until after judgment is rendered?

• What if court made a mistake?

Res Judicata - Claim Preclusion

Restatement Second of Judgments Section 17

Finality attached to final judgment granting/denying plaintiff's claims. If plaintiff wins, plaintiff may not bring those claims or related claims against defendant in the future. (Doctrine of merger) Similarly, if plaintiff loses, those claims are barred from future litigation. (Doctrine of bar)

Elements

1. Parties in both prior suit and current suit must be identical

2. Court of competent jurisdiction must have rendered prior judgment

3. Prior judgment must have been final and on the merits

4. Plaintiff must raise same cause of action in both suits.

Courts can raise res judicata on its own.

Factual groupings = transaction

Groupings = series

How? Determine these 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/business understanding/usage.

For the purposes of Res Judicata, a claim is broader than a claim in motion to dismiss on 12(b).

Res Judicata as to non parties

• Almost all jurisdictions say No

• New Jersey, however, requires all claims against all parties in first proceeding. Example = required the plaintiffs to bring suit against their attorneys in the SAME suit which they wanted to sue them for (car dealership rental land, overcharged).

• "Entire controversy doctrine" is severely criticized because there is no entire controversy until the litigation is over

When the first claim is a class action, and the second is an individual action, res judicata may not apply even if it would apply if the first claim was brought by that same individual.

Policy reasons: "no responsible attorney would ever file a class action challenging a prison condition, because by doing so, all future claims by prisoners challenging an unconstitutional condition could be barred - even if the specific issue was never raised in previous litigation"

Policy Discussion

"Simple justice is achieved when a complex body of law developed over a period of years is evenhandedly applied."

Res Judicata serves vital public interests beyond any individual judge's ad hoc determination of the equities in a particular case.

Res Judicata is a rule of public policy & of private peace.

Cases

1. Davis v DART: where plaintiffs are barred from bringing claim arising out of same transaction/series of transaction regarding use of polygraph test/internal affairs investigation & failure to be extended promotion as a result of race discrimination. Promotion claim = Summary judgment (no evidence). Polygraph test = barred.

   1. Case had already been brought regarding actions arising out of same motive (and motive that plaintiffs were outspoken about company policies/actions). Because the barred claims arose from the same nucleus of operative fact as the claims in Davis I and they predate the action, Appellants were on notice to include those claims in Davis I. In not doing so, their claims are precluded.

   2. Take aways = no bright line definition of claim; different legal theory (here, moving from state to federal law) or different relief is not sufficient to save from preclusion since preclusion is dependant upon facts; you must raise all possible claims the first time. Encourages cautious lawyering & the kitchen-sink approach.

2. Staats vs. County of Sawyer: where plaintiff was not barred from bringing action because Equal Rights Division cannot hear claims against federal anti-discrimination statutes, only claims under WFEA. Neither forum had full jurisdiction to hear all claims.

   1. Rule: when you can, you must. But if there IS NO forum in which all claims arising out of the single transaction could have been brought, then the plaintiff is not barred by the actions he brings in one limited jurisdiction when he later brings them in another.

Collateral Estoppel - Issue Preclusion

Finality attached to final decision on an ISSUE OF FACT OR LAW. Party that lost may not relitigate in subsequent litigation against same party. Sometimes he may not relitigate against new party either.

Elements

A judgment in a prior proceeding bars a party and its privies from relitigtaing an issue if, but only if

1. The issues in both proceedings are identical

2. The issue in the prior proceeding was actually litigated and actually decided

3. There was full and fair opportunity to litigate in the prior proceeding

4. The issue previously litigated was necessary to support a valid and final judgment on the merits

Traditionally: rule of preclusion applied only to issues of fact & stare decisis applied to issues of law. But the modern view applies preclusion to both.

Question is not whether the fact was ultimate or mediate, but whether it was treated as important and necessary to the decision in the first action.

• Whether it was foreseeable that the factual issue might come up in later litigation

• Whether party had adequate incentive to litigate the issue the first time.

Cases

1. Levy v. Kosher: where there was a no issue preclusion when suit was brought against defendants after the trademark board had already rejected their request for trademark because their symbol was too similar to plaintiffs. Defendant continued to use symbol. Plaintiffs sued for breach of trademark and requested judgment for issue preclusion. But court determining breach of trademark considers elements extra to those considered by court which rejected request for trademark.

   1. Note: For issue preclusion, the issue must actually be litigated on the merits. Simple admission in court = not litigated. Sometimes compromise = not litigated. Usually means the parties have to fight over it.

   2. Old rule = administrative courts were NOT full/fair opportunity. Now these procedures have same formality as traditional trial court and therefore can count for issue preclusion.

   3. Restatement 2nd says that the determination of an issue under preponderance of evidence standard should NOT be preclusive in a later proceeding where the burden of proof is higher, or when the burden is on the other party.

Preclusion with non parties

1. You've agreed to be bound

   • Explicit or implied agreement.

   • Scope of implied is difficult to define.

   • Did the person knowingly waive their right to "have their day in court?"

2. Legal Relationship

   • Privity:

     1. Simple = landowner litigates question of whether somebody else has an easement or covenant over their property. There's a suit. Loser sells the property. New owner is bound by the earlier decision - because they're in privity with the person who lost the earlier case, and they buy only the rights of the earlier property owner as they have been established.

3. Adequacy of Representation: (THIS PROVIDES THE STRONGEST TEST)

   • Someone appointed as a representative (for example, minors)

   • Class action - someone asserts themselves as suing on their own behalf and on the behalf of the other members of the group

     1. But the representative must not only be 1) formally recognized as representative in case; 2) but their authority to represent is subject to judicial discernment that they adequately represented the class

4. Control - although you're not in the driver's seat of the first case, and you weren't named as a party, you steered the case by remote control.

   • Example: insurance companies. But question of how much control we have over the lawsuit is a matter of contract between us and insurance company. Most insurance companies contractually reserve right to pick lawyer, whether or not to settle case and on what terms, and whether to appeal. Client does not have much say.

5. Relitigation through proxy - after party loses in #1, it decides to hire someone to front for them in a second lawsuit. It's sort of a reverse of control. You actually controlled the earlier suit, and now you are trying to get around preclusion by sending someone else do your dirty work.

6. Statutory scheme: variety of settings where ordinary preclusion rules are bent/abandoned in ways that are consistent with due process (presumably) …most telling example is bankruptcy, where unusual kinds of things may happen. (but the court doesn't spell them out)

7. What does it mean to be a formal party

   1. Either they have designated...