1. CIVIL PROCEDURE CLASS 41 Professor Fischer Columbus School of Law The Catholic University of America Dec 3, 2003

2. ANNOUNCEMENTS Exam review classes Exam is completely open book.

3. EXAM TIPS Read questions carefully and remember to answer the question asked Use IRAC form for each issue in question Answer every question; manage your time carefully Get sufficient sleep the night before the exam.

4. ELEMENTS OF ISSUE PRECLUSION Same issue Actually litigated thus an admission is not enough for issue preclusion to apply Actually decided by a valid and final judgment Determination is essential to judgment Some courts require mutuality, i.e. same parties

5. NECESSARY TO THE JUDGMENT Davis sued Rios for negligence in an automobile collision. The jury found Rios negligent but also found Davis contributorily negligent. Judgment entered for Rios. Should the court in a subsequent claim by Rios for injuries suffered in the same collision hold that Rios was barred from relitigating on the basis that his contributory negligence determined in first proceeding?

6. NECESSARY TO THE JUDGMENT The finding that Rios was negligent was not essential to the judgment and the judgment was not based thereon. Since the judgment was in favor of Rios he had no right to complain of or appeal from the finding that he was guilty of such negligence even if such finding had been without support in the evidence. Right of appeal is from a judgment not a finding.

7. NECESSARY TO THE JUDGMENT A useful test_ ask yourself if the issue had been decided the opposite way, would the same judgment have been entered? If so, the judgment did not depend on the way the issue was actually resolved. Applying this test to Rios, we find that once jury found Davis to be contributorily negligent, Rios had to win.

8. JUDGMENT ON ALTERNATE GROUNDS What if judgment is explicitly based on alternate grounds? Strictly speaking, neither ground alone is necessary to judgment. Yet each supports the judgment and is made against the losing party, so all may be reviewed on appeal Old rule – each alternate ground entitled to preclusive effect

9. JUDGMENT ON ALTERNATE GROUNDS Currently, there is a division of authority on this question. Restatement (Second) of Judgments states that “if a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone.”

10. HOULT CASE (3d Cir. 1998) What was Jennifer Hoult’s cause of action in the first action? What was the outcome of the first action? What is David Hoult’s cause of action in the second action? What is the procedural issue in the second action? How did the trial court rule?

11. THE HOULT APPEAL Does the First Circuit affirm or dismiss Jennifer Hoult’s appeal? What is the First Circuit’s reasoning?

12. MUTUALITY AND COLLATERAL ESTOPPEL Old rule: parties had to be the same New rule in federal court: Parklane Hosiery Co. v. Shore (1979) NOTE THAT PARKLANE applies only to federal courts. State courts are not obligated to follow Supreme Court. You will need to check the law carefully to see whether a jurisdiction has abandoned mutuality, and if so, to what extent.

13. DEFENSIVE NON-MUTUAL COLLATERAL ESTOPPEL In Blonder-Tongue, the Supreme Court first endorses the use of nonmutual estoppel What are the key facts of Blonder-Tongue What is the policy justification for the Supreme Court’s reversal of its long-standing rule requiring mutuality? What is the difference between the use of collateral estoppel in Blonder-Tongue and in Parklane?

14. DEFENSIVE NONMUTUAL ESTOPPEL Suit 1: P sues D1 (P loses on Issue A) Suit 1: P sues D2 (D2 pleads collateral estoppel to bar plaintiff from relitigating Issue A)

15. OFFENSIVE NONMUTUAL COLLATERAL ESTOPPEL Suit 1: P1 sues D (D loses on Issue A) Suit 2: P2 sues D (new plaintiff invokes collateral estoppel to establish Issue A in her suit against D) What are the risks posed by offensive use of estoppel?

16. SUPREME COURT IN PARKLANE Does the Supreme Court categorically endorse or reject offensive nonmutual collateral estoppel? What factors must lower courts consider?

17. 4 PARKLANE FACTORS 1. Could nonparty have joined prior litigation? 2. Was subsequent litigation foreseeable at time of first suit? 3. Is judgment being relied on consistent with prior judgments against this D? 4. Are there any procedural opportunities available to D in second action that did not exist in the first that would lead to a different result?

18. NEW UNIT More consideration of venue (forum no conveniens and transfer of venue)

19. FORUM SELECTION CLAUSES Parties may select a venue that is not a statutory venue by including a forum selection clause in a contract. Non-negotiable forum selection clauses have been enforced by the Supreme Court.

20. FORUM NON CONVENIENS Compare this doctrine with: 28 U.S.C. § 1404 28 US.C. § 1406

21. 28 U.S.C. § 1404 (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought PIPER - After removal to US District Court for Central District of CA, action is transferred to US District Court for Middle District of PA Cases are usually transferred under this section between federal district courts rather than dismissed for forum non conveniens

22. Improper Venue Provision 28 U.S.C. § 1406(a) permits court to dismiss if venue has improperly been laid “or if it be in the interest of justice, transfer [the] case to any district or division in which it could have been brought”

23. PIPER AIRCRAFT CO. V. REYNO (1981) – CB 784 Landmark decision on forum non conveniens Who is the plaintiff? Who is plaintiff suing? What is the cause of action? Where does plaintiff bring the action? Why does plaintiff choose that forum?

24. Piper Aircraft Co. v. Reyno Wrongful death suit originally brought in Superior Court of California by Gaynell Reyno on behalf of 5 Scottish passengers Defendants were Piper Aircraft Co. (aircraft mfr) (PA) and Hartzell Propeller Inc. (OH) (propeller mfr)

25. Scottish Legal System See also Kevin F. Crombie’s useful site: http://www.scottishlaw.org.uk/ http://www.scottishlaw.org.uk/

26. DEFENDANTS’ MOTIONS Explain the strategies and procedural moves of defendants Piper and Hartzell. How did the case get from the state court in CA (where filed) to the federal court in PA?

27. 28 U.S.C. § 1404 (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought PIPER - After removal to US District Court for Central District of CA, action is transferred to US District Court for Middle District of PA

28. IN THE U.S. SUPREME COURT How does the majority rule in the U.S. Supreme Court? Describe Justice Marshall’s reasoning in his majority opinion.

29. PIPER Test In applying the doctrine of forum non conveniens to a foreign plaintiff, Supreme Court essentially follows two steps it had articulated in Gilbert. 1. Requires a suitable forum in another country 2. Considers 4 factors or interests to determine which forum would best serve private and public interests Unfavorable choice of law alone should not bar dismissal

30. SIGNIFICANCE OF PIPER v. REYNO This case extends doctrine of forum non conveniens for use in an international context by adopting a lower threshold and by decreasing its deference to foreign plaintiff’s choice of forum (takes nationality into consideration) The foundation for any modern forum non conveniens analysis in an international context. Decision has prompted continuing criticism

31. LORD DENNING Famous and long- lived English judge “As a moth is drawn to the light, so is a litigant drawn to the United States.”

32. Attractions of U.S. Legal System For Foreign Plaintiffs Encouragement by U.S. plaintiffs’ bar for litigants to bring suit in U.S. contingency fee arrangements extensive pre-trial discovery advantageous substantive law availability of trial by jury tendency for large jury awards