1. Two Tools for Dealing with Duplicative & Redundant Litigation
7/17/2018
One Bite at the Apple
Two Tools for Dealing with Duplicative & Redundant Litigation
Complex Litigation
Copyright © 2017 James M. Underwood. All rights reserved.

2. What’s In a name? Collateral Estoppel = Issue Preclusion
7/17/2018
What’s In a name?
Collateral Estoppel = Issue
Preclusion
Res Judicata = Claim
Similar General Purposes—To
Avoid Relitigation (for peace, tranquility, & efficiency)
Important to follow the rules:
“must contain”
“Failure to comply with the rules of this court regarding the contents of briefs can be grounds for dismissing a party's claims.” United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (per curiam).  Dismissal is warranted where the non-compliance is not merely “technical or stylistic,” but rather is so “fundamental” that it prevents the court from engaging in meaningful review. Owens v. Sec'y of Army, 354 Fed.Appx. 156, 158 (5th Cir.2009) (per curiam).
PRO SE!
Failure of employee's appellate brief to comply with content requirements of Federal Rule of Appellate Procedure (FRAP) required summary dismissal of his appeal of summary judgment granted employer in his racial discrimination lawsuit; instead of listing issues presented for review, employee recited federal statute giving rise to his cause of action and three theories of recovery, his statement of facts listed four allegations without elaboration and did not contain record citations, his argument section did not state standard of review, and did not specify basis for his challenge to district court's summary judgment. See Davison v. Huntington Ingalls, Inc., 712 F.3d 884 (5th Cir. 2013)
REPRESENTED BY COUNSEL!
substantial “noncompliance” with important “appellate rules, in and of itself, constitutes sufficient cause to dismiss [an] appeal.” Rodriguez-Machado v. Shinseki, 700 F.3d 48 (1st Cir. 2012)
Former employee's failure to comply with appellate procedural rules crippled any attempt to review issues intelligently, warranting dismissal with prejudice of her appeal from grant of summary judgment to former employer in action alleging discrimination, retaliation, and hostile work environment under Age Discrimination in Employment Act (ADEA); opening brief on appeal offered no specific record cites to support former employee's version of the facts, brief provided neither necessary case law nor reasoned analysis to support former employee's theories, former employee made no retaliation-based arguments in opening brief's argument section and did not explain how alleged harassment was severe or pervasive enough to be actionable, and reply brief did not adequately address omissions.  Rodriguez-Machado v. Shinseki, C.A.1 (Puerto Rico) 2012, 700 F.3d 48
Different rules have different requirements. YOU MUST FOLLOW THE FORM HANDBOOK!

3. Claim Preclusion/Res Judicata Context
Examples of doctrine’s application:
Pamela sues Donald for personal injuries in a car accident. (Case #1) After a trial and judgment in that case, Pamela sues Donald for damage to her car from the same accident. (Case #2)
Mary sues General Electric (Case #1) for negligently building a toaster that explodes in her face. After entry of a final summary judgment, Mary sues GE again (Case #2) for strict liability regarding the same explosion.
Q: Would it make sense to let Pamela and Mary carve up their respective claims against Donald/GE into multiple lawsuits? Should it matter who won case #1?

4. Claim Preclusion: Basics
7/17/2018
Claim Preclusion: Basics
Rule: Doctrine of claim preclusion (res judicata) bars the relitigation of the “same claim.”
Principle: Finality for the resolution of particular disputes between the same parties & to encourage litigants to bring all their related causes of action at once. Why? Promotes efficiency and fairness (to D)
Elements:
Must be the “same” claim (T/O)
Between the “same” parties (or those in “privity”)
After a “final” judgment (final even if on appeal)
On the “merits” (misleading term; what was 1st court’s intent?)
“on the merits” includes trials, summary judgments, 12(b)(6) dismissals, and even dismissals as a sanction (rule 37).
“on the merits” does NOT include 12(b)(1) (no SMJ), 12(b)(2) (no PJ), 12(b)(3) (bad venue) or 12(b)(4)-(5) (bad service of process).
A voluntary dismissal (“nonsuit”) is not a final judgment.
Important to follow the rules:
“must contain”
“Failure to comply with the rules of this court regarding the contents of briefs can be grounds for dismissing a party's claims.” United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (per curiam).  Dismissal is warranted where the non-compliance is not merely “technical or stylistic,” but rather is so “fundamental” that it prevents the court from engaging in meaningful review. Owens v. Sec'y of Army, 354 Fed.Appx. 156, 158 (5th Cir.2009) (per curiam).
PRO SE!
Failure of employee's appellate brief to comply with content requirements of Federal Rule of Appellate Procedure (FRAP) required summary dismissal of his appeal of summary judgment granted employer in his racial discrimination lawsuit; instead of listing issues presented for review, employee recited federal statute giving rise to his cause of action and three theories of recovery, his statement of facts listed four allegations without elaboration and did not contain record citations, his argument section did not state standard of review, and did not specify basis for his challenge to district court's summary judgment. See Davison v. Huntington Ingalls, Inc., 712 F.3d 884 (5th Cir. 2013)
REPRESENTED BY COUNSEL!
substantial “noncompliance” with important “appellate rules, in and of itself, constitutes sufficient cause to dismiss [an] appeal.” Rodriguez-Machado v. Shinseki, 700 F.3d 48 (1st Cir. 2012)
Former employee's failure to comply with appellate procedural rules crippled any attempt to review issues intelligently, warranting dismissal with prejudice of her appeal from grant of summary judgment to former employer in action alleging discrimination, retaliation, and hostile work environment under Age Discrimination in Employment Act (ADEA); opening brief on appeal offered no specific record cites to support former employee's version of the facts, brief provided neither necessary case law nor reasoned analysis to support former employee's theories, former employee made no retaliation-based arguments in opening brief's argument section and did not explain how alleged harassment was severe or pervasive enough to be actionable, and reply brief did not adequately address omissions.  Rodriguez-Machado v. Shinseki, C.A.1 (Puerto Rico) 2012, 700 F.3d 48
Different rules have different requirements. YOU MUST FOLLOW THE FORM HANDBOOK!

5. Some Consequences of R/J
Procedural rules (FRCP 18) permit permissive joinder of claims; yet R/J practically requires claimant to bring all possible related claims.
Issue spotting is more than just a final exam skill.
Don’t get too cute carving up your dispute and seeking adjudication in different courts.
Belts & Suspenders:
Settlements often include a contractual release + an entry of final judgment. (The former would give rise to the affirmative defense of release and the latter to the affirmative defense of R/J.)
As a member of a class action, you’re bound by the results of that judgment due to Res Judicata (even if you’re in litigation limbo in a 23(b)(2) class—deprived of notice or opt out rights).

6. Swaida v. Gentiva Health
Suit #1: Wrongful termination (retaliation). 12(b)(6) judgment for the employer.
(Later EEOC “right to sue” letter received.)
Suit #2: Wrongful termination (age). Should 12(b)(6) be granted due to RJ?
1st suit ended in final judgment “on merits”?
Identity of same parties?
“Identicality” of claims? 3 tests applied
Any equitable exceptions? Problems with recognizing such exceptions?

7. Issue Preclusion/Collateral Estoppel Context
Example of when issue arises:
Pamela & Donald’s car accident case (#1). One issue decided in that case is whether Donald was required to wear glasses while driving
The next week, Pamela & Donald are in another traffic accident. In Case #2 between them . . .
Q#1: Will court let Pamela sue Donald again?
Yes, not the same “claim” (different T/O) so no R/J.
Q#2: Will court let parties re-litigate the issue of whether Donald was required to wear glasses?
Not likely (issue finally litigated already) = C/E.

8. Issue Preclusion: Basics
Rule:
When an (1) issue of fact (or a mixed Q of fact/law) is (2) actually litigated and determined by (3) a valid and final judgment, and (4) the determination is essential to the judgment . . .
Then the determination is conclusive in a subsequent action between the parties, even on an entirely different claim.

9. Issue Preclusion: Questions
Big points of controversy:
What is the“same”issue?
Same Q with same BOP
(Defendant in a criminal suit losing may have civil ramifications; losing a civil suit does not have criminal ramifications.)
How about a defendant winning a criminal suit? Does this protect it from a victim’s civil suit? (O.J.)
When is an issue “actually litigated and determined?”
Default? NO
MSJ? YES
Trial? YES
When is an issue “essential to the judgment”?
Issue necessary to the claim/defense and with similar incentive to litigate well
Between“which” parties?
Traditional requirement of mutuality” has eroded. But everyone is entitled to their one day in court.

10. Freeman v. Coggins Trucking: The Basics
Car/Truck accident in Mississippi. Freeman hurt but survived. His infant daughter killed.
Suit #1: Freeman sued Ds for his own personal injuries. Jury verdict  Ds.
Suit #2: Freeman wrongful death claim based on death of daughter. For himself and other beneficiaries.
Q: Should prior litigation loss by Freeman bind him and others?
Would R/J bar this claim by him anyway (regardless of outcome in case 1)? Is it the same “Claim”?
If not, should C/E prevent re-litigation of the issue of fault for same accident?
3 questions: (1) same issue? (2) actually litigated? (3) critical to judgment?
Answer clear as to Freeman
What about other W/D beneficiaries he seeks to represent? A “party” or in “privity” with him during case #1? “Virtual Representation”?
Friendly litigant with parallel interests enough?
Same family member good enough?
Same counsel enough?
Don’t forget strong constitutional (Due Process) rights at stake

11. The full set of 197 slides is available upon adoption of Complex Litigation. If you are a professor using this book for a class, please contact Beth Hall at to request your copy of the slideshow presentations.