Preclusion

Question 1

Claim Preclusion
& Modern and minority approach

Answer 1

CAN ONLY SUE ONCE
rule against claim splitting
not allowed to split claim into two different suits

If you used modern day approach - if it is from the same transaction and occurrence, it is allowed to be brought as a second claim

minority approach which is the primary rights theory – is that each right is a different claim,
1. property rights or
2. personal injury

Question 2

what law is applied in preclusion law

Answer 2

example –> case 1 state court in kansas
case 2 - federal case in Florida

court in case 2 has to apply the preclusion law, of the judicial system that decided case 1

so in case 2, the judge might apply Kansas law in case 2

Question 3

what if case 1 was in federal court based on diversity?

Answer 3

then the judge in case 2 uses federal preclusion law, federal law on that issue will adopt the state law in which the federal court sat

case 1 = federal court Nevada
case = federal law will mirror Nevada state law
- only when case 1 brought in because of diversity

Question 4

Claim Preclusion Elements

Answer 4

FINAL, VALID, AND ON THE MERITS

3/5 requirements

1. must be Brought by same claimant against the same defendant
   the judgement in case 1 was final
2. the judgement was valid
3. judgement was on the merits
4. claimants must be the same in case 1 and case 2
5. case 1 and case 2 were asserted by the same claimant against the same defendant

Question 5

majority and minority view of elements of claim preclusion

Answer 5

majority - must be from same transaction or occurrence

minority - can bring two claims for different issues like personal injury or property injury

Question 6

how to solve claim preclusion

Answer 6

3 requirements
1. are both claims brought by same defendant and claimant
2. did it end on final judgment on the merits
3. were case 1 and case 2 asserting the same claim?

depends on jurisdiction
majority - both claims from same transaction and occurrence (car crash)
1. would dismiss under majority view = because of claim preclusion
2. minority view = not dismiss, = case 1 is perusal injury case 2 is property injury
= two primary rights theories can sue twice

Question 7

Issue Preclusion

Answer 7

Rule against re litigating issues
stops you from litigating issues that had already been litigated in the first place

have to be a diff claim

in issue preclusion - case 2 won’t be dismissed, it will just have case 1 resolved for case 2 , narrows the scope don’t have to litigate same issue again

Question 8

Requirements for Issue preclusion
((Structure))

Answer 8

1. case 1 ended in valid final judgement on the merits
2. must show that the same issue was actually litigated and determined
   a. must have litigated case 1 = gone to trial, and know what was decided
3. show that the issue was essential to the judgement in case 1
   (if we did not have the issue, the judgement would be different)
4. against who is issue preclusion used?
   - due process , can only be used against someone who was a party to case 1 (or in privity to case 1)
5. whom is issue preclusion asserted?
   - not due process, courts can have diff opinions here
   - being used by someone who was not. a party to case 1
   come up in two ways
6. non mutual defensive (non -mutual defensive means person using it was not a party in case 1, defensive means defendant in case 2).

Question 9

Mutuality, non offensive mutuality, and non mutual defensive

Answer 9

required by some states, some do not insist on it anymore

offensive non mutual - when parties are not from the same as case 1

no mutuality if parties are not same

example –> P won, airline negligent, 2nd suit another passenger sues airline
trying to recover based on negligence of the airline
each P has their own claim - no claim preclusion problem

2nd p wants to use issue preclusion from first case of airline being negligent to help him in second case , so does not have to relitiage the same issue

old rule – parties have to be the same to satisfy mutuality
courts don’t really care for this anymore

non mutual defensive (non -mutual defensive means person using it was not a party in case 1, defensive means defendant in case 2).

Question 10

what are essential factors you need to see if it was or was not essential on the judgement?

Answer 10

did judgment rest on that conclusion, if party can appeal, the finding was NOT essential to the judgement