Civil Procedure Flashcards
(104 cards)
1
Q
Personal Jurisdiction
A
IPJ refers to the court’s ability to exercise power over a particular D, and it is traditionally based on where the party is domiciled, presence in the state when served, and consent. Most states grant immunity from IPJ to nonresidents who are parties or witnesses in a judicial proceeding, however, CA does NOT apply this immunity and IPJ may be asserted over ANYONE served in the state. Here,
2
Q
Long Arm Statute
A
Since no traditional basis exists, the P must look to see if the state has a long arm statute that would give the court IPJ over an out of state D. A limited long arm statute gives the state jurisdiction over a defined set of actions. An unlimited long arm statute gives jurisdiction to the extent permitted by the constitution. Here,
3
Q
CA Long Arm Statute
A
CA’s long arm statute is unlimited, giving courts the power over any person which the state can constitutionally exercise jurisdiction. Here,
4
Q
Constitutional Limitations
A
Even if a state statute arguably grants the state court IPJ over the D, such exercise must still be constitutional. To be constitutional, there must be sufficient contacts with the forum state so as to not offend the traditional notions of fair play and substantial justice.
5
Q
Const Limits: Minimum Contacts
A
Minimum contacts requires a showing of purposeful availment and foreseeability.
6
Q
Const Limits: Minimum Contacts - Purposeful Availment
A
The courts must find that D purposefully targeted the forum by conducting activities in the forum, thus invoking the benefits and protections of its laws. Here,
7
Q
Const Limits: Minimum Contacts - Foreseeability
A
The D also must know or reasonably anticipate that her activities in the forum render it foreseeable that he may be brought into court in that state. Here,
8
Q
Const Limits: Relatedness of Claim to Contact
A
The claim must arise from the D’s contact with the forum. This requires a showing of either specific or general jurisdiction.
9
Q
Const Limits: Relatedness of Claim to Contact - Specific Jurisdiction
A
Specific Jurisidction will be asserted if the claim is related to D’s contacts with the forum. Here,
10
Q
Const Limits: Relatedness of Claim to Contact - General Jurisdiction
A
Where there is no specific jurisdiction, the court will look to see if the D is “at home” in the forum because of domicile or principle place of business, or conduct makes D “essentially at home” in the forum. Here,
11
Q
Const Limits: Fairness
A
In cases involving Specific PJ, the court will determine fairness by balancing the inconvenience to the D against the state’s interest.
12
Q
Const Limits: Fairness - Inconvenience
A
A forum is constitutionally acceptable unless it is so gravely difficult and inconvenient that the D is put at a severe disadvantage. Relative financial burdens are not considered. Here,
13
Q
Const Limits: Fairness - State’s Interest
A
The forum state may have a legitimate interest in providing redress for its residents. Here,
14
Q
In Rem Jurisdiction
A
In Rem jurisdiction exists when the court has power to adjudicate the rights of ALL persons in the world with respect to a particular item of property in that forum. Here,
15
Q
Quasi In Rem Jurisdiction
A
QIR jurisdiction exists when the court has the power to determine the rights of particular individuals with respect to specific property within the court’s control. Here,
16
Q
Subject Matter Jurisidction
A
SMJ is the federal court’s power to hear a particular case. SMJ can either be based upon a federal questions or diversity of citizenship. Here,
17
Q
SMJ - Federal Question
A
Federal courts have jurisdiction over claims that “arise under” federal law. The complaint must be seeking to assert a right under the constitution or federal law. Here,
18
Q
SMJ - Diversity of Citizenship
A
Diversity of citizenship requires a showing of both complete diversity and an amount in controversy that exceeds $75k.
19
Q
SMJ - Diversity of Citizenship - Complete Diversity
A
A P must be domiciled in a different state that ALL defendants are domiciled at the time the case if filed. Here,
20
Q
SMJ - Diversity of Citizenship - Amount in Controversy
A
The amount in controversy must exceed $75k - good faith is required. A single P may aggregate all his individual claims against the D to reach the amount in controversy requirement. Here,
21
Q
Supplemental Jurisdiction
A
The court has discretion to add additional claims not satisfying SMJ to an existing federal claim if the claim arises from a “common nucleus of operative fact”. However, if the underlying claim is in federal court on diversity, then plaintiff cannot use supplemental jurisdiction to overcome a lack of diversity in the additional claim. Here,
22
Q
Cali - SMJ
A
In CA, all counties have one superior court that exercises general SMJ over civil matters not within the exclusive jurisdiction of another court. Here,
23
Q
Cali - Limit Civil Case
A
A limited civil case is a case where the amount in controversy is $25k or less. Limited civil cases DO NOT have SMJ over equitable claims, declaratory relief actions, or requests for ancillary jurisdictions. Further, a P in a limited civil case cannot recover more than $25k. Here,
24
Q
Cali - Unlimited Civil Case
A
An unlimited civil case is a case where the amount in controversy exceeds $25k. Unlimited civil cases allow for a full range of pleadings, motions, discovery, and equitable and declaratory relief. Here,
25
Cali - Reclassficiation
A court may reclassify a case from limited to unlimited or vice versa. The court will reclassify from an unlimited to limited if D can show that recovery of $25k or more is virtually impossible. The court will reclassify from limited to unlimited if P can show that there is a possibility that a verdict could be more than $25k. Here,
26
Removal Jurisdiction
Only a D may remove a case from state court to federal court. Removal is properly only if the case could have been heard in federal court (SMJ) and all of the D's agree to remove. However, no removal is allowed in a diversity case if any D is a citizen of the forum (destroys diversity). D's must file for removal within 30 days of service of process, which starts over with every new D served, but no more than 1 year after the case is filed in state court. Here,
27
Remand
A P can file a motion to have the case remanded back to state court. The court must remand whenever it is shown there was not federal SMJ. Here,
28
Venue
Venue relates to the proper district in the federal system to hear a case. A venue is proper in 1) any district where ALL of the D's reside (if D's reside in different districts in same state, then any D district) or 2) where a substantial part of the claim arose, or 3) if neither of the first two, then any district where any D is subject to the courts PJ. Local actions related to land must be filed in the district where the land lies. Here,
29
Transfer from Improper Venue
If the original venue is improper, the court will transfer the case "in the interest of justice" to a district that has a basis for PJ and venue, or it will dismiss. If the original venue was improper, courts will apply the laws of the state of the transferee court.
30
Venue - Transfer - Interests of Justice
Transferring the action to another venue as opposed to dismissing the action would be in the interest of justice because...
31
Transfer from a Proper Venue
Even if original venue is proper, the court may transfer the case for convenience of the parties to another district where the action might have been brought (PF, SMJ, Venue) in the interests of justice and convenience. Courts weigh public and private factors in determining if the trasnferee court is the center of gravity for the case. If the original venue was proper, courts will apply the first court's law to the transferee court.
32
Venue - Transfer - Convenience
Transferring to the State B is convenient for the D because ________, therefore, it is (or is not) in the interests of justice and not dismiss because______. However, transferring for the plaintiff is not convenient because__________. On balance, .....
33
Forum Non Conveniens
If transfer to another court is impossible (e.g. foreign country), the court will dismiss or stay the case for the convenience of the parties. The federal court must evaluate both public and private factors in making its decision on transfer or dismissal. Here,
34
Forum Non Conveniens - Public Factors
Important public factors for the court to consider are the availability of alternative forums, the plaintiff's choice of forum, and the forum state's interest in providing a forum for its residents. Here,
35
Forum Non Conveniens - Private Factors
Important private factors for the court to consider are the convenience of the parties and witnesses, the location of the evidence, and where the cause of action arose. Here,
36
CA Venue: Actions Involving Land
The property venue for actions involving land is the county court where the land is located. Here,
37
CA Venue: All Actions NOT Involving Land
The proper venue for all other actions not involving land are 1) in a county where any D resides, OR 2) in a K action, the county where the K was supposed to be performed or where the K was entered into, 3) OR in a PI or Wrongful Death case, where the injury occurred. Here,
38
CA Venue: Actions Against Businesses
Venue in an action against a corporation, unincorporated association, or partnership is proper 1) in a county where the K was made or to be performed or where the obligation or liability arose or where the breach occurred or where the organization has its PBB. Here,
39
CA Venue: Transfer of Venue
A transfer can ALWAYS be made when venue is improper. Also, a transfer can be made if venue is proper if: 1) there is reason to believe that an impartial trial cannot be had in the original county OR 2) the convenience of the witnesses and the ends of justice would be promoted by the change, OR 3) there is a no judge of the court qualified to act. Here,
40
CA Venue: Forum Selection Clause
Reasonable forum selection clauses in K's are enforceable in CA, thus requiring the action to be filed in another STATE. Here, (ie.e. you can pick the state, but not the forum)
41
CA Venue: Venue Selection Clause
Venue selection clauses are UNENFORCEABLE in CA. Here,
42
CA Venue: Inconvenient Forum - Writing Template
```
Venue (in current forum)
Inconvenient Forum
- Public Factors
- Private Factors
Conclusion
```
43
Erie Doctrine
In a diversity cases, federal courts apply the state substantive law, but must apply federal procedural rules. If the law is "arguably procedural" and there is no federal law no point, courts must weigh 1) outcome determination 2) balance of interests 3) avoiding forum shopping. Clearly established state law issues include elements of a claim/defense and statute of limitations/tolling laws. Here,
44
CA: Federal Courts in CA
A federal court in CA sitting in diversity MUST apply CA's conflicting laws rules in determining the applicable substantive law. CA resolves the conflict of laws issues using the following approach: Torts = Government Interest Approach, Contracts = Choice of Law Clauses
45
CA: Federal Courts in CA: Tort Actions - Government Interest Approach
The court first determines whether the laws of the 2 (or more) sates are identical. If they are not, the court evaluates whether each state has an interest in the application of its law. If each state has such an interest, a true conflict exists and the court will then analyze the comparative impairment to each state's interest should the law of the other state be applied. Here,
46
CA: Federal Courts in CA: Contract Actions - Choice of Law Clause
If the choice of law clause in a contract encompasses all causes of action, the court must determine whether the clause is enforceable by examining whether the chosen state's law has a substantial relationship to the parties or their transaction or any other reasonable basis exists for the parties' choice of law.
if the clause is unenforceable, the court will then assess whether the chosen state's laws conflicts with a fundamental CA policy, if such a conflict exists, the court must decide whether CA has a materially greater interest than the chosen state in the determination of the specific issue. If the K does not contain a choice of law clause, or if it is unenforceable, the G interest approach usually applies. Here,
47
Pre-Trial Pleadings and Issues: Services of Process
P must give notice by delivering a summons AND a copy of the complaint. Service can be served by any non-party within 90 days of filing. Service can be delivered personally to D or via substituted service to 1) D's usual abode and 2) to someone of suitable age and discretion who resides there. Here,
In CA: P MUST try personal service first. If not possible, then substituted service allowed to 1) usual abode, 2) competent resident 18 years or older who 3) is informed of contents, and 4) process is also mailed 1st class. Here,
48
Pre-Trial Pleadings and Issues: Services of Process - Waiver By Mail
P can mail a copy of the complaint and two copies of a waiver form. D has 30 days (20 in CA) to return the executed waiver form, then P must file the waiver form with the court. Only waives service, not PJ and venue defenses. Here,
49
Pre-Trial Pleadings and Issues: Pleadings - Complaint
Federal courts use notice pleading. The complaint must include: 1) a statement of SMJ, 2) a short and plain statement of a plausible claim showing P is entitled to relief. If claim is for fraud, mistake, or special damages it must be plead with particularity. Here,
CA uses fact pleading, meaning the complaint must include a plain and concise statement of the facts constituting a cause of action. Here,
50
Pre-Trial Pleadings and Issues: Pleadings - Answer
Answer must 1) admit 2) deny or 3) state a lack of sufficient information, which acts as a denial (info must not be in D control). Failure to deny constitutes an admission. The answer must also contain any affirmative defenses and is due 21 days after service. Here,
CA courts allow for a general denial, unless responding to a verified complaint. The answer must be answered within 30 days from service. Here,
51
Pre-Trial Pleadings and Issues: Pleadings - 12b Motion to Dismiss
These defenses can be put in either a motion to dismiss or in the answer. The waivable "use it or lose it" defenses that must be in 1st response are: PJ, Service of Process, and Venue.
The non-waivable defenses that may be raised for the first time at the end of the trial are: Failure to state a claim and failure to join and indispensable party.
The defense that can be raised for the first time on appeal is lack of SMJ. Here,
52
Pre-Trial Pleadings and Issues: Pleadings - 12b Motion to Dismiss: CALIFORNIA
CA
Lack of PJ must be raised by a motion to quash service of summons or motion to set aside default. Here,
Lack of SMJ must be raised by means of a general demurrer, motion for judgment on the pleadings, or motion for reclassification. Here,
Failure to state a claim must be raised by general demurrer or motion for judgment on the pleadings. Here,
Failure to join a required party must be raised by special demurrer. Here,
53
Pre-Trial Pleadings and Issues: Pleadings - CA Anti SLAPP Motion to Strike
CA has a second motion to strike when the P has filed a "strategic lawsuit against public participation." D must make a threshold showing that cause of action in the complaint arose from the protected activity such as the right to free speech. IF a showing is made, burden shifts to P to show probability of prevailing on the merits. Here,
54
Pre-Trial Pleadings and Issues: Pleadings - CA Anti SLAPP Motion to Strike - SLAPP Back Motion
A D who prevails on an Anti SLAPP motion may bring a SLAPP Back motion, i.e. a cause of action for malicious prosecution. Here,
55
Pre-Trial Pleadings and Issues: Counterclaim
An offensive claim against an opposing party (e.g. D vs P)
56
Pre-Trial Pleadings and Issues: Compulsory Counterclaim
A claim by D arising from the same T/O as P's claim and must be filed with D's answer or claim is waived. Here,
57
Pre-Trial Pleadings and Issues: Permissive Counterclaim
A claim by D NOT arising from the same T/O as P's claim and can be filed with D's answer or asserted in a separate case. Here,
58
Pre-Trial Pleadings and Issues: Counterclaims: Supplemental Jurisidiction
The limitation on diversity cases does not apply to claims by D. (only applies to P). Here,
59
Pre-Trial Pleadings and Issues: Cross Claims
An offensive claim against a co-party. The claim must arise from the same T/O as the underlying action and must satisfy SMJ. Here,
60
Pre-Trial Pleadings and Issues: Cross Claims: Supplemental Jurisdiction
The limitation on diversity cases does not apply to claims by D (only applies to P).
61
Pre-Trial Pleadings and Issues: Amendments - Amendment of Right
P has the right to amend once within 21 days after D serves first Rule 12 response. D also has the right to amend once within 21 days of serving his answer. After 21 days, neither party has the right to amend, however, the party may receive court approval to amend "if justice so requires". Here,
62
Pre-Trial Pleadings and Issues: Amendments - Relation Back Doctrine: Adding Claims
Amendments that add a claim after the statute of limitations "relate back" to the date the original pleading was filed if the new claim relates to the same T/O set forth in the original pleading. Here,
63
Pre-Trial Pleadings and Issues: Amendments - Relation Back Doctrine: Adding New Parties
New parties may be added within 120 days of filing it it 1) concerns the same T/O and 2) P sued the wrong party, but D knew or should've known about the mistake. A mistake in strategy is insufficient, it must be a mistake in identity. Here,
64
Pre-Trial Pleadings and Issues: Amendments - Relation Back Doctrine: Doe Defendants (CA)
CA allows P to sue fictitious "Doe" defendants and amend the complaint to substitute true names later. This is a much looser standard than the federal relation back standard. Here,
65
Pre-Trial Pleadings and Issues: Amendments - Supplemental Pleadings
These set forth things that happened after the pleading was filed so they could not be included in the original pleading. Here,
66
Pre-Trial Pleadings and Issues: Amendments - Rule 11
When a lawyer or pro-se party signs documents (other than discovery), she is certifying that to the best of her knowledge, after a reasonable inquiry, the paper is 1) not for an improper purpose 2) not frivolous, 3) factual contentions have evidentiary support. Violation may result in sanctions after 21 day safe harbor period. Here,
67
Joinder of Parties - Compulsory Joinder of Parties
Absent parties should be joined if they are necessary and joinder is feasible.
68
Joinder of Parties - Compulsory Joinder of Parties: Necessary
A party is necessary if: 1) complete relief cannot be given to existing parties without Absentee, 2) Absentee's interests may be harmed if he's not joined, or 3) Absentee claims an interest that would subject party (usually D) to multiple obligations. Here,
69
Joinder of Parties - Compulsory Joinder of Parties: Feasibility
Joinder is feasible if the court has PJ over him and his joinder will not destroy diversity. If Absentee can't be joined, the court must either proceeds without him or dismiss the case. Here,
70
Joinder of Parties - Permissive Joinder
Co-plaintiffs and co-defendants MAY be joined if: 1) the claims arise from the same T/O AND 2) there is a common question of fact or law among all parties. Here,
71
Joinder of Claims - Class Action
A class action is only proper if 1) the initial requirements are met and 2) the claim falls within one of the three class actions types of suits. Class action lawsuits must be certified by the court and may be settled or dismissed only with court approval.
In CA, a class action must show a 1) ascertainable class and 2) well-defined community interest (court will consider CANT elements in deciding). There are no separate types of class action suits. Individual notice is not required; notice can be via publication. All members who do not opt out are bound by the class judgment. Here,
72
Joinder of Claims - Class Action Requirements (CANT)
The initial requirements for a class action are 1) commonality, 2) adequate and fair representation, 3) numerousity, and 4) typicality.
73
Joinder of Claims - Class Action Requirements (CANT): Commanilty
The questions of law or fact must be common to all the members of the class. Here,
74
Joinder of Claims - Class Action Requirements (CANT): Adequate and Fair Representation
The named plaintiff must fairly and adequately protect all the interests of the class members. Here,
75
Joinder of Claims - Class Action Requirements (CANT): Numerousity
The class must be so numerous that joinder of all members is impracticable. Here,
76
Joinder of Claims - Class Action Requirements (CANT): Typicality
The claims of all named plaintiffs' claims and defenses are typical of the class. Here,
77
Joinder of Claims - Class Action Types: Prejudice
Class action necessary to avoid harm to individual class members who might be left out (e.g. claims to a common fund). No notice requirement, no right to opt out, and judgment binds all class members. Here,
78
Joinder of Claims - Class Action Types: Injunction/Declaratory Judgment
Class is not seeking money damages because class members were treated alike by other party (e.g. employment discrimination). No notice requirement, no right to opt out, judgment binds all class members. Here,
79
Joinder of Claims - Class Action Types: Damages
Class has a common question that predominates over individual questions AND class actions is the superior method to handle the dispute (e.g. mass torts). Courts must notify (by mail) all reasonably identifiable members explaining they can 1) opt out 2) will be bound if they don't, and 3) can enter a separate appearance through counsel. Here,
80
Joinder of Claims - Impleader
D brings in 3rd party defendant for indemnity/contribution. Diversity - 3P's citizenship is relevant because 3P Plaintiff v 3P Defendant claim does not involve original P; supplemental jurisdiction OK. Not compulsory. Here,
81
Joinder of Claims - Interpleader
Property holder or stake holder forces claimants into single suit to determine ownership/rights.
82
Joinder of Claims - Interpleader: Rule 22
Complete diversity, $75k+, or federal questions, PJ
83
Joinder of Claims - Interpleader: Statutory
Minimum diversity (2 claims diverse) and $500+, deposit required, nationwide service
84
Discovery - FRP
A party may seek to obtain any non-privileged matter that is relevant to any claim or defense. However, the moving party must show that the information sought is reasonably calculated to lead to the discovery of admissible evidence on a claim or defense in the case. It is NOT required that the information itself be admissible at trial. Here,
85
Discovery - CA
The California standard is broader than the federal rule. A party may discover any non-privileged matter that is "relevant to the subject matter involved in the pending action." The information sought must be admissible evidence or reasonably calculated to lead to discovery of admissible evidence. Here,
86
Discovery - Work Product
Materials prepared in anticipation of litigation are protected from discovery unless P can show a substantial need and no alternative means. Work product can be created by lawyer, party or representatives of the party. Here,
In CA, work product must be generated by attorney or agent Here,
87
Required Disclosures
Generally, within 14 days of Meet and Confer, each party must disclose 1) identity of persons with discoverable info, 2) documents and things that support claim/defense 3) computation of money damages, and 4) insurance coverage. Later in the case, expert witnesses must be disclosed. Here,
In CA, no automatic required disclosures. Here,
88
Discovery Tools
Information from parties and non-parties can be obtained through depositions, interrogatories, requests for admissions/production, and medical examinations. Physical and mental exams must be court ordered after showing the party's physical or mental condition is in controversy. Here,
In CA, requests for admissions and production from non-parties require a deposition. In personal injury cases, D is allowed one medical exam without a court order. Here,
89
Sanctions
Sanctions are warranted when there is a partial or total noncompliance with discovery rules. The party seeking sanctions must certify they tried in good faith to resolve this issue without court involvement. Sanctions can be monetary, establishment order, restrict evidence, etc., but the purpose is to deter, not punish. Here,
90
Trial Issues - Summary Judgment
A summary judgment motion must be granted if, from the pleadings, affidavits, and discovery materials, there is no genuine issue of material fact and thus the moving party is entitled to a judgment as a matter of law. Courts generally view evidence in the light most favorable to the non-moving party. Court may not decide disputed fact issues. Genuinely disputed material facts are backed by evidence on both sides of the issue. Here,
91
Trial Issues - 7th A Right to Jury Trial
The 7th A preserves the right to a jury trial if the amount in controversy exceeds $20 and the plaintiff is seeking legal, not equitable relief. If a case involves BOTH damages and equity, the jury decides the legal issues and the equitable issues are later decided by the judge. Here,
In CA, equitable issues are tried first. No jury where the main remedy sought is equitable and damages are incidental. Here,
92
Trial Issues - Judgment as a Matter of Law
A JMOL is a motion brought after the other side has been heard at trial that allows the judge to decide the case if reasonable people could not disagree on the result. Evidence is viewed in the light most favorable to the non-moving party. Here,
In CA, this is called Motion for Directed Verdict. Here,
93
Trial Issues - Renewed Motion for Judgment as a Matter of Law
A RJMOL is the same standard as the JMOL but comes up after trial after the jury returns a verdict that reasonable people could not have reached. Moving party MUST have brought JMOL at trial and must bring RJMOL within 10 days after entry of judgment. Here,
In CA, this is called Motion for Judgment Notwithstnading the Verdict.
94
Trial Issues - Motion for a New Trial
A judge may require a new trial within 10 days of judgment on the basis of prejudicial errors, new evidence, or misconduct. If the damages are excessive or inadequate, the judge can avoid a new trial by ordering Remittitur or Additur (party decides to take new offer or new trial) Here,
95
Final Judgement Rule
Generally, a party may only appeal after a final judgment on the merits of the case. Final judgment must be appealed within 30 days. Here,
In CA, an appeal must be filed within 60 days after mailing of the service of the notice of entry of judgment, or 180 days after entry of judgment if no notice was mailed or served. Here,
96
Final Judgment Rule - Appeal by Writ
A party can seek an extraordinary writ of mandamus upon showing that irreparable harm would result if the normal appeals process were followed. This is at the discretion of the court. Here,
97
Final Judgment Rule - Interlocutory (non-final) Review
The exceptions to the FJR are pretrial orders involving injunctions, final judgment on collateral matters, or when there is a substantial disagreement on law and the appellate court agrees to hear it. Here,
98
Claim Preclusion (Res Judicata)
Claim Preclusion bars relitigation of the 1) same cause of action 2) between the same P and D 3) if the earlier case ended in a valid judgment 4) on the merits
99
Claim Preclusion - Same Cause of Action
Res judicata applies only if the cause of action in the first suit is the same as that being brought in the second suit. A cause of action is ALL claims arising out of the same T/O. Here,
CA follows the "primary rights" doctrine, which allows causes of action to be split into separate lawsuits as long as the cause of action does not give rise to an invasion of a single primary right. Here,
100
Claim Preclusion - Same Parties
Res judicata applies ONLY if the parties from the first suit and the second suit are the same parties in the SAME CONFIGURATION. Here,
101
Claim Preclusion - Valid Final Judgment
A judgment is final if it is one that disposes of the whole case by rendering final judgment not only as to all parties but as to all causes of action. Here,
102
Claim Preclusion - On the Merits
A judgment is on the merits so long as it was not an involuntary dismissal for lack of PJ, SMJ, Venue, or failure to join an indispensable party. Here,
103
Issue Preclusion (Collateral Estoppel)
Issue preclusion bars re-litigation of a particular issue between parties when: 1) there was an earlier valid final judgment, 2) on the merits, 3) the same issue was actually litigated and determined, and 4) the issue was essential to the judgment in the first action. Here,
104
Issue Preclusion - Non-Parties
Traditionally, issue preclusion could not be used against a non-party because this would violate due process. However, modern law allows issue preclusion to be used by parties not in the original case if the issue was fully litigated and issue preclusion would not be unfair. Here,
