CLAIM AND ISSUE PRECLUSION————————————————————————
· Generally
o This material can be raised only when the fact pattern involves at least 2 cases
§ The first case (Case 1) has ended, and a judgment has been entered
§ The question now is whether that judgment from Case 1 precludes anyone from litigating anything in Case 2 which is pending
o Claim preclusion is the modern terminology for “res judicata” (which literally means the thing has been decided)
§ Stands for the proposition that a claimant only gets one opportunity to assert a claim
· If you have one claim, you only get one chance to vindicate it
· Means that the claimant must be careful and seek all rights to relief encompassed in a single claim in Case 1. If he does not, he cannot seek the other rights to relied in Case 2.
o Issue preclusion is the modern terminology for “collateral estoppel”
§ In an important way, it is narrower than claim preclusion – it precludes relitigation in Case 2 of a particular issue that was litigated and determined in Case 1
§ The fact finder in Case 2 will be instructed that the issue is established
§ Does not necessarily result in dismissal of Case 2; rather it may simply narrow the scope of what must be litigated in Case 2.
§ Hypo on page 511
· Case 1: P sues D and must establish A, B, C, D. P wins.
· Case 2: P sues D and must establish W, X, Y, Z, and A
· If issue preclusion applies, P must only establish W, X, Y, Z
o Both claim and issue preclusion are affirmative defenses under Federal Rule 8(c)
§ Thus, it is incumbent on the defendant to raise them or risk waiving them
§ Some courts seem willing to raise preclusion on their own motion
o Several closely related and important policies support these doctrines
§ There is a legitimate interest in finality
· At some point, litigation must be declared finished
§ At some point a defendant has a right to repose
· To know that he cannot be sued repeatedly on the same claim
§ There is an interest in consistency
· If the same issue were to be relitigated several times, there is a chance that it would be resolved differently in different cases
§ The community has an interest in efficiency
· Litigation is publicly funded dispute resolution, and the public has a right to expect that the resources of the judicial system not be wasted
o SCOTUS has said that preclusion embodies “public policy and private peace” and serves “vital public interests”
· Claim Preclusion (Res Judicata)
o Generally
§ Provides that a claimant may sue only once to vindicate a claim
§ A single claim might include more than one right to recover
§ Because the claimant only gets to sue on the claim once, he must be careful and seek recovery for all rights to relief in that one case
§ There are three requirements for the operation of claim preclusion
· Both Case 1 and Case 2 must have been brought by the same claimant against the same defendant
· Case 1 must have ended in a valid, final judgment on the merits
· Both Case 1 and Case 2 must be based upon the same claim
o Case 1 and Case 2 must have been brought by the same claimant against the same defendant
§ Resist the temptation to say “same parties”
· Not accurate because it applies only to someone who has asserted a claim
· Hypo on page 514
§ Resist the temptation to say that claim preclusion requires that Case 1 and Case 2 be brought by the same plaintiff against the same defendant
· Claim preclusion applies to parties who assert the same claim twice; thus it applies to “claimants” and not just “plaintiffs”
· Hypo on page 515
§ Due process provides that one may be bound by a judgment only if he was a party to the case in which that judgment was entered
· Ma
clusive effect
· Many judgments are accorded preclusive effect even though there has been no true assessment of the merits of the case at all
o It is more accurate to think of the requirement as one that the court had the opportunity to get to the merits of the case, even if it did not actually do so
o If Case 1 went to trial, the resultant final judgment is undoubtedly on the merits
· “On the merits” does not require that there be a trial
o Suppose a valid final judgment is entered on summary judgment
§ Such a judgment is entitled to preclusive effect
§ It is on the merits for these purposes
§ It is an adjudication that a party is entitled to prevail as a matter of law
o Suppose a plaintiff wins on default judgment
§ Entitled to preclusive effect because default does establish (albeit by a defendant’s failure to respond) that the plaintiff’s claim is substantively valid
o With a voluntary dismissal
§ Where the plaintiff simply pulls the plug on the case
§ Federal Rule 41(b) provides that such a dismissal is “without prejudice,” which means that it is not deemed on the merits, unless the notice or stipulation or order of dismissal provides otherwise
o Involuntary dismissals
§ Starting point is Rule 41(b) which bears careful scrutiny and envisions 3 scenarios
If the involuntary dismissal is based upon a lack of jurisdiction, lack of venue, or failure to join a party under Rule 19, the Rule provides that the dismissal is not “treated as an adjudication on the merits,” which
