1. Mon., Nov. 26

2. preclusion claim preclusion issue preclusion

3. claim preclusion - when P sues D and it comes to a final valid judgment on the merits claim preclusion bars P from subsequently bringing suit on actions that P did bring or should have brought in the earlier suit

4. defendant preclusion

5. claim preclusion bars litigation of actions that should have been brought compulsory joinder rule

6. defendant preclusion bars litigation of defenses that should have been brought

7. distinguish defendant preclusion from compulsory counterclaim rule

8. requirements for claim preclusion

9. there must be: a final judgment

10. claim splitting or prior action pending

11. the judgment must be: valid

12. the judgment must be: on the merits

13. § 20. Judgment For Defendant—Exceptions To The General Rule Of Bar (1) A personal judgment for the defendant, although valid and final, does not bar another action by the plaintiff on the same claim: (a) When the judgment is one of dismissal for lack of jurisdiction, for improper venue, or for nonjoinder or misjoinder of parties; or (b) When the plaintiff agrees to or elects a nonsuit (or voluntary dismissal) without prejudice or the court directs that the plaintiff be nonsuited (or that the action be otherwise dismissed) without prejudice; or (c) When by statute or rule of court the judgment does not operate as a bar to another action on the same claim, or does not so operate unless the court specifies, and no such specification is made.

14. (2) A valid and final personal judgment for the defendant, which rests on the prematurity of the action or on the plaintiff's failure to satisfy a precondition to suit, does not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied, unless a second action is precluded by operation of the substantive law.

15. - statute of limitations?

16. tendency to treat a dismissal on statute of limitations grounds (even a “procedural” one) as having preclusive effect

17. if a final valid judgment on the merits then… if judgment is for P, P’s claim is merged in the judgment (no new causes of action about the transaction allowed) if judgment is for D, P’s claim is extinguished (no new causes of action about the transaction allowed)

18. scope of a claim

19. interjurisdictional claim preclusion

20. evidence test

21. primary rights test

22. transactional test

23. Rest. (2d) of Judgments § 24. Dimensions Of “Claim” For Purposes Of Merger Or Bar—General Rule Concerning “Splitting” (1) When a valid and final judgment rendered in an action extinguishes the plaintiff's claim pursuant to the rules of merger or bar the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. (2) What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined pragmatically, giving weight to such considerations as whether the 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 or business understanding or usage.

24. claim preclusion and changes in the law

25. P sues D Railroad alleging that the conductor was negligent in starting the car while P was disembarking and that as a result P broke his arm after judgment for P, P brings a new action against D alleging that after disembarking from the car he fell into a trench negligently left by D beside the road and broke his leg

26. B owes A $500 on an obligation that matured on February 1 A visits B on June 1 and requests payment, whereupon B commits an unprovoked assault upon A A sues B on the debt and recovers may A maintain a second action against B based on the assault?

27. D buys goods at P store on credit during January, February and March in April P sues D for the debt incurred in January may P later sues for the debt incurred on February or March

28. A pays state income taxes for the years 2011 and 2012 and state property tax for the year in 2014 A sues state for overpayment of income taxes for 2011

29. A brings an action against B in federal court for the purchase price of a boiler sold by A to B. B defends on the sole ground that the price has been paid, and judgment is given to A. B subsequently sues A for breach of warranty because the boiler was defective and exploded, causing damage to B. The explosion happened before A’s suit.

30. privity

31. guardian/ward trustee/beneficiary executor/decedent

32. - P as guardian of X sues D for negligence in an accident in which X and D were involved - P loses (D not negligent) - X, upon obtaining maturity, then sues D for negligence in connection with the same accident - precluded?

33. - P sues D to determine whether P has an easement to D’s property - P wins - D sells the property to X - X finds P on his property and sues P in ejectment - P defends on the ground of the easement - is X issue precluded?

34. successor in interest

35. - P as guardian of X sues D for negligence in an accident in which P, X and D were involved - X loses (D not negligent) - P then sues D in individual capacity for negligence - precluded?

36. water from river flowing from D’s property down to P’s is flooding P’s property P sues D to get D to build a dam P wins X, who knew about the suit but did not intervene, sues D to get D to take down the dam because water backing up from the dam is going on X’s property

37. exceptions to claim preclusion

38. § 26 Exceptions to the General Rule Concerning Splitting (1) When any of the following circumstances exists, the general rule of § 24 does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant:

39. (a) The parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant has acquiesced therein

40. (b) The court in the first action has expressly reserved the plaintiff's right to maintain the second action

41. (c) The plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief

42. P brings a state antitrust action against D in state court judgment for P P then brings a federal antitrust action concerning the same transaction in federal court – precluded?

43. P brings a quasi in rem action against D for $2000 in unpaid lawyer’s fees in Or state court the value of the property is $1000 Or allows limited appearances and D makes such an appearance judgment for P for $1000 P then brings an in personam action against D in D’s domicile (Ca) for the remaining $1000 precluded?

44. (d) The judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme, or it is the sense of the scheme that the plaintiff should be permitted to split his claim

45. African-Americans as a class sue city for racially segregating school this is pre-Brown and the plaintiffs lose Brown is decided Ps are not claim precluded to sue again

46. (e) For reasons of substantive policy in a case involving a continuing or recurrent wrong, the plaintiff is given an option to sue once for the total harm, both past and prospective, or to sue from time to time for the damages incurred to the date of suit, and chooses the latter course

47. temporary vs. permanent nuisance

48. P sues D for mild asbestosis caused by asbestos exposure P receives damages years later, he develops deadly mesothelioma, a cancer caused by asbestos P sues D for this harm claim precluded?

49. (f) It is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason, such as the apparent invalidity of a continuing restraint or condition having a vital relation to personal liberty or the failure of the prior litigation to yield a coherent disposition of the controversy.

50. issue preclusion

51. if in an earlier case an issue was - actually litigated and decided - litigated fairly and fully - and essential to the decision then the earlier determination of the issue precludes relitigation of the same issue by someone who was a party (or in privity with a party) in the earlier litigation

52. Felger v. Nichols (MD 1977)

53. why not claim preclusion?

54. why not compulsory counterclaim rule?

55. same issue?

56. what does it take for an issue to be actually litigated and decided?

57. - P sues D for negligence - D admits negligence but introduces the affirmative defense of contributory negligence in his answer - at trial, no evidence for or against contributory negligence is offered by either side and the jury finds for P - D subsequently sues P for his damages in accident - can D be issue precluded from relitigating P’s negligence? - can D be issue precluded from relitigating D’s negligence?

58. default judgment? summary judgment? consent judgment?

59. what is the “same” issue…?

60. - P sues D for breach of a contract to buy 10 shares of the C Corp
- P sues D for breach of a contract to buy 10 shares of the C Corp. every month for 2 years - D introduces the defense of fraud, on the ground that at the time they entered into the contract P lied to D about the C Corp.’s oil assets - D loses on that issue; judgment for P - subsequently D breaches the contract again - P sues D and D introduces two defenses: statute of frauds (the contract was not in writing) fraud (at the time that they entered into the contract, P lied to D about the C Corp.’s coal assets) - is D issue precluded?

61. essentiality requirement

62. Cambria v. Jeffrey (Mass. 1940)

63. - P sues D for interest on note - D alleges fraud in execution of note and release of obligation to pay interest - P wins - P then sues for principal - D brings up fraud in execution of note - Is D issue precluded?

64. - P sues D for interest on note - D alleges fraud in execution of note and release of obligation to pay interest - D wins on both grounds - P then sues for principal - D brings up fraud in execution of note - Is P issue precluded?

65. - P sues D for interest on note - D alleges fraud in execution of note and release of obligation to pay interest - D wins on both grounds - P then sues for subsequent interest - D alleges fraud in execution of note and release of obligation to pay interest - Is P issue precluded?

66. - P and D contract for D to deliver coal to P monthly - D breaches - P sues D in California - D argues that the contract is invalid, D loses on issue - D breaches again - P sues D in Nevada - D argues that the contract is invalid (P fails to mention issue preclusion), D wins on issue - D breaches again - P sues D in California - Which determination has issue preclusive effect?