Agenda for 26th Class Administrative Name cards No classes after today, except review classes TA-led review class M 11/27. 10-11:50, Rm 101 2016 exam. No writing assignment Review class. M 12/11, 10AM Rm 101 2015 exam. No writing assignment Prepare questions you want to ask me Handouts Slides, 2015 Exam, 2016 Exam Prof. Klerman office hours for rest of semester M 11/20. 3-4PM (today) M 11/27. 10-noon (regular class time), 2-5 (expanded regular office hours) M 12/11. noon-5 (after review class) Exam info Review of Venue & FNC Res Judicata Collateral Estoppel

Exam In class Tuesday morning, December 12 Multiple choice Open book, can use calculator MC Challenges Take home Essay or essays Tuesday afternoon, December 12 Integrity You must do the exam alone You cannot share or discuss exam questions with those who take exam later Cheating has not been a problem at USC Law If you cheat or help others to cheat, you can be expelled.

Exam Advice Read question carefully Outline answer before starting to write, so well structured Pay attention to genre Memo to partner different is different from appellate opinion Compare 1995 Question 2 model answer to 2013 model answer Include one or two-paragraph executive summary at the beginning Summarize key conclusions and reasons for those conclusions NOT just road map Use headings to separate issues Consider putting most important issues first Make sure you justify your conclusions with reference to facts in the question Take a break after completing your first draft Go over one page outline/list of topics & issues to make sure you didn’t miss issues Re-read the question and go over one-page outline again Proofread and revise Take a break Reread question again, go over one-page outline again, revise again, proofread

Introduction to Former Adjudication 2 concepts Res judicata / claim preclusion Collateral estoppel / issue preclusion Res judicata Cannot litigate same claim several times Sometimes bars related claim, even if not litigated before Collateral estoppel If issue resolved in one case, cannot relitigate that issue in subsequent case Both doctrines motivated by similar policies Finality Save litigation costs Avoid inconsistent judgments or verdicts

4 Requirements for Res Judicata Same (or related claim) claim Federal rule. Claim arising out of the same transaction or occurrence Even if claim in second suit not actually raised or litigated in first suit Some state rules may be narrower E.g. claim in second suit arises out of “same evidence” Judgment on the Merits Trial, summary judgment, default judgment 12(b)(6), but not equivalent dismissals in some states courts NOT dismissal for lack of jurisdiction or venue Final judgment Judgment entered on all claims In federal court, still final if appeal pending; not in some state courts Same parties Except judgment against former real property owner bars subsequent owner Perhaps other exceptions when interests of parties are very closely aligned But exception narrowed by Taylor v. Sturgell (not assigned) Res judicata and choice of law Apply res judicata rules of court which rendered judgment Fed ct applies IL res judicata rules when deciding whether IL judgment bars federal litigation. Frier

Frier v. City of Vandalia City towed Frier’s cars Frier sued city in in state court seeking replevin to get cars back City won Frier sued city in federal court alleging Due Process violation, because city did not give him a hearing before or after it took his cars District court found for city on merits Frier appealed City: res judicata from prior state court bars this suit 7th Circuit found for city on res judicata Since 1st judgment was rendered by IL court, need to apply IL rules for res judicata, even though 2nd case in federal court IL rules are narrower than federal rules “same evidence” rather than “same transaction or occurrence” Majority and concurrence differ in application In what court could Frier have brought both his replevin and his due process claims? Did the city raise res judicata as a defense in the district court? How? Why was that improper? How should the city have raised that defense? Why was it proper for the Court of Appeals to consider the res judicata defense, given that the district court did not address it and the city did not cross appeal? Yeazell p. 727 Q1

Collateral Estoppel Requirements 1. Same issue 2. Actually litigated. No C.E. if party admitted issue in first suit 3. Actually decided. No C.E. if court resolved case without deciding issue Can be hard to tell if jury verdict. See Illinois Central v. Parks 4. Necessarily decided / Essential to judgment If changing result on issue would not change outcome of case, then no C.E. If court decides negligence case by finding duty, but no negligence No C.E. on duty CE would not be fair to defendant, because could not have appealed finding of duty If court decides contract case by deciding that there was no contract and that, even if there was a contract, there was no breach Some courts follow Restatement 2nd C.E. applies neither to “no contract” nor to “no breach” Court may not have thought carefully about Plaintiff may have thought appeal futile Unless issue squarely decided on appeal Other courts follow 1st Restatement and apply C.E. to both Like res judicata, apply collateral estoppel rules of court which rendered first judgment

Illinois Central v. Parks Train collision Suit 1. Bertha and Jessie v. IL Central Bertha‘s claim. Compensation for injuries Judgment. 30K Jessie’s Claim. Loss of services and consortium Judgment for defendant Suit 2. Jessie v. IL Central for Jessie’s injuries No c.e. on contributory negligence, because J for defendants could have been based on two findings No damages in loss of consortium claim Contributory negligence by Jessie So not clear which issue actually decided So Jessie can relitigate whether he was contributorily negligent The suit in the first paragraph was actually heard in state court. If the suit in the first paragraph of the opinion had been brought in federal court, would the second suit be barred by res judicata? If the suit in the first paragraph of the opinion had been brought in state court, but the main suit described in the case was brought in federal court, would the second suit be barred by res judicata.

Collateral Estoppel Questions Yeazell p. 749 Q 2 Ruhrgas. Fed Court dismissed, citing lack of subject matter J and lack of personal J Plaintiff refiled in state court Yeazell p. 751 Qs 3-4 (Note you will want to do the Blackboard Questions first, because they give you the answers to Qs 1 & 2)

Nonmutual Collateral Estoppel I Traditionally, collateral estoppel applied only when parties were the same in first and second suit (like res judicata) Some courts allow person not a party to the first suit to assert collateral estoppel, as long as person against whom c.e. asserted was in the first suit (and 4 other requirements satisfied) Called nonmutual collateral estoppel 2 kinds of nonmutual collateral estoppel Defensive Offensive Defensive nonmutual collateral estoppel Plaintiff sues defendant1 for patent infringement Court decides that patent is invalid Plaintiff sues defendant2 for patent infringement Defendant2 can assert collateral estoppel against plaintiff Because plaintiff already litigated and lost on issue of patent validity Now accepted in nearly all jurisdictions “defensive” means asserted by defendant

Nonmutual Collateral Estoppel II Offensive nonmutual collateral estoppel Plaintiff1 sues defendant for poisoning water Court decides that defendant poisoned the water Plaintiff2 sues defendant for poisoning the water Defendant may be estopped from arguing that did not poison the water Very controversial If defendant loses one case (1st or 2nd or 99th case), would mean that defendant loses all subsequent related cases But if one plaintiff loses case, then later plaintiffs not bound by c.e Discourages joinder Defendant may not have had incentive to litigate hard in first case Federal courts have discretion to apply c.e. offensively. Factors from Parklane Has there been inconsistent litigation outcomes? Did plaintiff strategically wait (not join) so as to take advantage of offensive non-mutual collateral estoppel Did defendant have sufficient incentive to litigate issue aggressively in first case “Offensive” means by plaintiff No estoppel if person against whom estoppel asserted was not a party in first case Yeazell pp. 759ff Qs 1, 2a&b, 5a&b