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Flashcards in Preclusion Deck (17):
1

Requirements for res judicata (claim preclusion)? (3)

Case 1 and 2 were brought by the same claimant AGAINST the same D

Case 1 ended in a valid final judgment on the merits

Case 1 and 2 asserted the same claim.

2

Res Judicata = _____ Preclusion

Claim

3

A and B are involved in a car crash.

Case 1: A sues B. Case is litigated and goes to final judgment.

Case 2: B sues A to recover for his injuries from the same crash.

Why does claim preclusion NOT apply?

Because the cases were not by the same P against the same D.

4

A and B are involved in a car crash.

Case 1: A sues B. Case is litigated and goes to final judgment.

Case 2: B sues A to recover for his injuries from the same crash.

Why might Case 2 be dismissed

Seems like a compulsory counterclaim.

5

Any judgment entered is likely "on the merits" UNLESS it was based on one of the following 3:

Jurisdiction

Venue

Indispensible parties

6

P sues D. The case is dismissed for lack of PJ. In Case 2, P sues D in a court with PJ, asserting the same claim in Case 1. D argues that Case 2 should be dismissed under claim preclusion. Yes or No and why?

No.

Case 2 was not "on the merits" because it was based on PJ.

7

A claim is any right to relief arising from . . .

The same T/O.

8

The minority view of "claim": There are separate claims for ____ ___ and ____ ____ because those are different primary rights.

Property Damage

Personal Injuries.

9

Three elements of issue preclusion (collateral estoppel)?

Case 1 ended in a valid final judgment on the merits

The same issue was actually litigated and determined in Case 1

The issue was essential to the judgment in Case 1 (finding on the issue was the basis for the judgment)

10

For issue preclusion, case 1 must have actually been _____

Litigated.

11

P sues D for neg. Assume that under applicable law, contributory negligence would bar P from recovery. D asserts the affirmative defense of contributory neg. The case is tried and the jury makes the express finding that P was contributorily negligent. Judgment is entered for D. Is the finding on P's negligence "essential" for purposes of issue preclusion? Why?

Yes. It is why D won, so it is essential. Under contrib. neg., once P was found negligent, D had to win.

12

Against whom can issue preclusion be asserted?

Only against somebody who was a party to Case 1 (or represented by a party in Case 1).

13

Who can always assert issue preclusion?

Someone who was a party to Case 1 (or represented by a party)

14

How can someone, not a party to case 1, use nonmutual defensive issue preclusion?

If the other party had a full chance to litigate in Case 1.

15

Explain nonmutual defensive issue preclusion with respect to who is using it against whom?

One using it was not a party to Case 1 and is D in case 2.

16

Explain nonmutual OFFENSIVE issue preclusion with respect to who is using it against whom?

One using it was not a party to Case 1 and is a P in Case 2.

17

What four factors will a court use to determine whether a person not a party to Case 1, but is a P in Case 2, can use nonmutual OFFENSIVE issue preclusion?

D had a full and fair opportunity to litigate Case 1

D had an incentive to litigate strongly in Case 1 (D didn't want to lose because he knew you could sue him)

P could NOT have joined easily in Case 1

There is no inconsistent finding on this issue