Civil Dispute Resolution &

Procedures II Class 18

More fun with

Res Judicata!
 Some terminology
• Res Judicata: an umbrella term
– Courts (and lawyers!) will sometimes use it generically
to refer to all types of preclusion – as in “That’s res
judicata!”
– But also specifically refers to what we more modern
types call “claim preclusion”
• Collateral estoppel: older term
– Refers to “estopping” a party in a “collateral”
(separate) case from relitigating a particular issue
– We modern types call this “issue preclusion”
Distinguishing claim from issue preclusion
• Claim preclusion:
– Imagine you and I are involved in a scuffle.
– CASE 1: I sue you, alleging that you negligently hit me in the eye.
I win, but only get $500. Hmmm, I think. Perhaps if I can show
you intentionally battered me in the same incident, I could get
punitive damages!
– CASE 2: I sue you again, this time alleging intentional battery.
– NOTE: I’m suing about the same factual incident. I’ve just
switched legal theories.
– Claim preclusion will prevent me from pursuing CASE 2. The
court will say: all claims that I have against you arising out of that
scuffle MERGED into my prior judgment.
– NOTE: If I had lost CASE 1, I’m still claim precluded from bringing
CASE 2. Court will say all my claims are BARRED by CASE 1.
 Compare Issue Preclusion
• Suppose in Case 1, in which I win on a negligence claim
against you based on the scuffle, the court makes a
finding of fact that you are a trained pugilist.
• Case 2 is brought by another person who was present
and injured during the scuffle. The same issue comes
up in that case.
• Issue preclusion MAY bind you in that later case to the
finding that you are a trained pugilist.
• In other words, that fact will be treated as true for
Case 2. No dispute about it. No litigating it.
 PRECLUSION: A General Outline
• Claim Preclusion: Need all 3 elements:
1. There must be a prior judgment that is final, valid, and on
the merits (meaning the substantive case was decided—
or dismissed as punishment for non-cooperation)
2. The parties who are opponents in the later case must
have been opponents in the earlier case (or in privity).
3. The claim in the later case must be within the scope of
the judgment in the earlier case.
• How to tell? Our old friend . . . TRANSACTION/CNOF TEST!!!
• Remind you of anything???
• Note that claim preclusion bars claims that could have been but were
not brought up in previous case.
• ”USE IT OR LOSE IT!”
 GENERAL OUTLINE, cont’d.
2. Issue Preclusion: need all 3 elements
“Been there, done that!!!”
– There must be a prior judgment that is final and valid (and on the
merits, if issue goes to the merits)
– Issue in later case must be the SAME as issue in earlier case, and must
have been
• Actually litigated in prior case
• Actually decided in prior case
• Necessary to the judgment in prior case
– Party to be precluded in later case must have had their day in court in
earlier case. NOTE: that means that ONLY a repeat player can be
precluded! Also NOTE that issue preclusion ONLY precludes issues
that actually were litigated—not those that could have been but were
not.
 28 U.S.C. §1738: Full Faith and Credit
• All courts must give “full faith and credit”—that
is, recognize and enforce—the judgments of
their sister states’ courts.
• This means that any later court considering
whether to preclude a party (using either claim
or issue preclusion) must look to the law of the
RENDERING state to determine preclusion.
• The RENDERING state is the state that rendered
(issued) the prior judgment.
 Methodology
• First, look for a prior case. Label that Case 1.
Identify the outcome of that case. Who won/lost?
• Second, look for later case. Label that Case 2 (or 3, or
4, etc.).
• Third, apply the test for claim preclusion. Remember,
all 3 elements must be present for CP to work.
• Fourth, if claim preclusion fails, try issue preclusion.
Identify repeat player. Remember, all elements must
be present, including the subparts, for IP to work.
• Fifth, apply “fairness factors”—more on this to come!
Let’s Try It:
Rush v. City of Maple Heights
• Facts: Ms. R. wrecks her motorcycle when she
hits a pothole she claims the city failed to fill
• Case 1: Ms. R. v. City, for damage to
motorcycle. She wins $100
• Case 2: Ms. R. v. City, for personal injury,
seeking $12,000
• Ms. R is a CLAIM-SPLITTER!!!. You can’t do
that!
 Hypo Hell
• Penny sues Doug for damage to her car after they were
involved in a car accident. She wins $1000. Later, Penny
files a suit for personal injury arising out of the same car
accident. What should Doug file?
• Penny sues Doug for damage to her car after they were
involved in a car accident. She loses. Later, Penny files a
suit for personal injury arising out of the same car
accident. What should Doug file?
• Penny sues Doug for damage to her car after they were
involved in a car accident. She wins $1000. Later, Doug
files a suit against Penny for personal injury arising out of
the same car accident. What should Penny file?
 The Plan

Monday, March 23:

pp. 718-732
AND Federal Rule 13(a)

Future Quiz Dates: March 30, April 6, April 29