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Flashcards in Claim & Issue Preclusion Deck (17)
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What is the doctrine of claim preclusion (res judicata)

Prohibits relitigating the same claim once a final judgment on the merits has been issued (i.e. claim is precluded).

Claim preclusion is typically asserted as an affirmative defense (e.g. Todd can't sue me for this, he had the opportunity to do so in a prior suit but didn't")

Policy reason: encourages efficiency and consistency.


When does claim preclusion exist?

  1. There is a valid final judgment on the merits;
  2. There are the same parties (same P against same D); and
  3. The same claims (arising out of same transaction or occurence)

If these 3 elements are met, the claim will be precluded.


What are examples of valid final judgments on merits

  • Decision after full adjudication
  • Dismissal on a 12(b)(6) motion
  • Default judgment if court had valid PJ & SJ
  • Judgment as a matter of law
  • Summary judgment


What are examples of decisions that are not considered an adjudication on the merits?

  1. Lack of jurisdiction
  2. Improper venue
  3. Failure to join a party when required to do so under FRCP 19 (aka "Mandatory Joinder")
  4. Voluntary dismissals
  5. If the dismissal order does not state otherwise (i.e. a decision made "without prejudice" would not be claim preclusive")

See more: Res Judicata


In the pleading stage, when must claim preclusion be raised as a defense?

Since claim preclusion is an affirmative defense, it must be raised in D's answer or else it is considered waived.


What factors determine whether claims are sufficiently related for the purposes of claim preclusion?

  • Whether 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


Does claim preclusion bar a party from bringing the claim again if the claim was involuntarily dismissed?

Yes, because unless otherwise specified, involuntary dismissals are "on the merits."

⚠️ Note: Party can however, refile claim in state court, just not federal court.


Does claim preclusion apply to adverse parties or co-parties?

Adverse parties only.

Issue preclusion, however, applies to both adverse parties and co-parties.


If D fails to assert a compulsory counterclaim, will she later be precluded from filing that same claim?

Yes, except if:

  1. D was not aware that he could bring the compulsory counterclaim; or
  2. D wins an affirmative defense → D can then can counterclaim on the same facts 

See more: Res Judicata


What is issue preclusion ("collateral estoppel")?

Prohibits relitigation of issues of fact or law that have been previously adjudicated.

⚠️ Note: Much narrower than claim preclusion (which bars whole claim, not just the issue).

Policy goal: prevent inconsistent judgments on the same issue.


What are the elements of issue preclusion?

  1. Same issue was actually litigated and determined;
  2. Issue was essential to the judgment (i.e. if decided in the opposite way, it would change the result of the case);
  3. There was a valid final judgment on the merits; and
  4. Party against whom preclusion is asserted must have had a full and fair opportunity to litigate the issue in the first suit



Does issue preclusion apply if two issues were the reason for the determination?

No, neither issue will be precluded.


What is the difference between mutual collateral estoppel and nonmutual collateral estopel?

Mutual: Being asserted by a party in the prior action.

Nonmutual: Asserted by someone who was not a party to the prior litigation.


Non-mutual issue preclusion typically arises in what scenarios?


  1. The new party requests that a final judgment against a previous party be enforced; or
  2. The previous party attempts to prevent the new party from litigating a claim that the previous party already lost to another, previous party



What is nonmutual defensive collateral estoppel and when is it allowed?

When a new D requests that a final judgment against P from a prior suit be enforced (e.g. Dan tries to use Patty's negligence finding from a prior lawsuit)

Only allowed if P had a full chance to litigate the issue previously.




What is non-mutual offensive collateral estoppel?


P tries to assert a final judgment issued against D from a prior suit.

⚠️ Note: Rarely granted.



What factors do courts balance when deciding whether to allow nonmutual offensive collateral estoppel? 

  1. Did prior party have a full incentive & opportunity to litigate?
  2. Are there multiple, prior inconsistent judgments?
  3. Could the party trying to invoke collateral estoppel have participated in the prior action?
  4. Are there any procedural opportunities available to D that were not available in the first suit?

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979)