Issue Preclusion – mutuality issues

1. Issue Preclusion – mutuality issues April 14

2. Please bring computers • Please complete the on line evaluation.

3. Issue preclusion - review • 1. the same issue of law or fact was actually litigated & det’d • 2. by valid final judgment, • 3. And the determination of that issue was essential to the judgment • the determination of that issue is conclusive in a subsequent action btwn the parties (in strict mutuality juris); and potentially between a party and non-party (in juris which recognize non-mutual issue preclusion)

4. More review • “Actually litigated” means that the issue was subject to an adversary presentation and the judgment was not a product of the parties’ consent. To see if the issue was litigated look to transcript and arguments; • “Essential to judgment” means it was essential to deciding the merits of the underlying case

5. Sally & Joe • Sally & Joe are in a wreck & both suffer personal injury & property damage. In their jurisdiction, contributory negligence is a complete bar to recovery and there is no compulsory counter claim rule. For each hypo, assume that the issues of defendant's negligence and plaintiff's contributory negligence were litigated.

6. Sally & Joe #1 • Suit one: Sally sues J for negligence. Joe raises defense of contributory negligence. The jury returns a general verdict for Sally (i.e. jury says - we find that Sally wins) and court enters judgment for Sally on basis of that verdict; • Suit two: J v. Sally (same accid) – Joe is alleging Sally was negligent, Sally is asserting the defense of contributory negligence. • Can Sally assert issue preclusion v. Joe as to (1) Joe's negligence; (2) her freedom from negligence?

7. Sally & Joe #2 • Suit one: Sally v. Joe for negligence; Joe raises defense of contrib; Jury returns gen'l verdict for Joe. • Suit two - Joe v. Sally for negligence. Sally raises the defense of contrib. • Can Joe assert preclusion v. Sally as to (1) his freedom from contrib; or (2) Sally's negligence?

8. Sally & Joe #3 • Suit 1: Sally sues Joe for negli; Joe raises defense of contrib. Jury returns special verdict finding Sally was negligent; court enters judgment for Joe on basis of verdict • Suite 2: Joe sues Sally for negligence. Sally raises defense of contrib. • Can Joe assert issue preclusion v Sally as to (1) his freedom from negli; or (2) Sally' s negligence?

9. Sally & Joe #4 • Suit 1: Sally sues J for negli; Joe raises defense of contrib; jury returns a special verdict finding Sally not negligent & Joe negligent;(Sally wins) • Suit 2: Joe sues Sally for negli; Sally raises the defense of contrib. • Can Sally assert issue preclusion v Joe as to (1) her own freedom from negli; or (2) - Joe's negli?

10. Sally & Joe #5 • Suit one - Sally v. Joe - Jury finds Joe not negligent and Sally contributorily negligent. Joe could have won on either one of those grounds - so, the jury has alternative grounds. • Suit two - Joe v. Sally. May Joe assert issue preclusion as to his freedom from negligence and Sally’s negligence? (i.e. Does issue preclusion apply when either one of the two jury findings support Joe’s victory in case one)

11. Right to Jury Trial (brief overview) • Which Amendment provides a right to jury trial? • Do you have a right to jury trial in ALL civil cases?

12. Jury Trial • Right to jury trial in common law claims (or their parallels) that were in existence in the late 1700s. If the claim was one that was recognized as a common law claim in the late 1700s, then no question but that you had a right to jury trial. • What happens if it is a “new” claim, such as the statutory wrongful death claim – how do you know if there is a right to jury trial for that claim?

13. Equity & Common Law Claims • With Fed. R. Civ. P., can now join equitable and common law claims. What happens when one claim allows for jury trial and the other claim does not have a right to a jury trial (jury is not allowed to decide the equitable claim)

14. Practice Pointer • Even if have right to jury trial, may choose to have case heard by judge. If you want a jury trial, you must ask for one! • In your complaint make sure to demand a jury trial - or if p hasn’t made the demand in her complaint and the def wants one, make the demand for jury trial in your answer.

15. Mutuality v. Non- Mutuality • In Parklane, the big issue is: Can you use issue preclusion if the parties in suit 1 and suit 2 are different? • Traditionally, courts found that only those who had been a party to first suit could assert issue preclusion. This is doctrine of mutuality. The idea was that if you were not involved in suit, you shouldn’t be able to take advantage of outcome. Only a few courts follow a strict mutuality approach today.

16. Things to remember • A&B are friends driving to GSU. A is driving, B is a passenger. On the way to school, A collides with C. A v. C for negligence. C wins – the jury finds C was not negligent. Suit 2: B v. C. • C wants to assert suit should be over on grounds of issue preclusion – the jury in suit one found her not negligent. Even if this jurisdiction did not require complete mutuality (i.e. same parties or privies) could C do this?

17. KEY POINT • REMEMBER: Due Process requires that issue preclusion be asserted only AGAINST one who was a party/in privity/ in the first case (if you were not a party/privy in the first suit, IP cannot be used AGAINST you – although you may be able to use IP against another party)

18. Parklane • What are the facts of suit 1 (who are the parties; what were the issues; what was the resolution of the claim) • What are the facts of suit 2 (who are the parties; what are the issues) • What issue do the plaintiffs want precluded from re-litigation? • What is the question the court is deciding?

19. Blonder Tongue • Court distinguishes offensive from defensive ip using the example of the Blonder-Tongue case to explain defensive ip. What happened in Blonder-Tongue? • Using that case as an example, how would you explain non-mutual defensive issue preclusion? • What is the policy underlying the non-mutual use of defensive issue preclusion?

20. Parklane • How is the issue in Parklane different from the issue in Blonder-Tongue? • What is meant by the term “non-mutual offensive issue preclusion?”

21. Parklane • What are the arguments against allowing non-mutual offensive issue preclusion? • What are the arguments in favor of allowing offensive non-mutual ip?

22. Parklane • What is the court’s holding? • What kind of factors should the district court look at in exercising its discretion?

23. How does the court apply its holding to the facts in Parklane?

24. Dissent by Justice Rhenquist • What was Justice Rhenquist’s big argument about the fairness of allowing offensive issue preclusion in this case? • Do you agree that losing right to have jury decide is a big procedural difference and makes it unfair (are juries “neutral” or not?)

25. Other points • For issue preclusion - final judgment is exactly the same as what we discussed for claim preclusion. • Claim preclusion applies btwn courts - i.e. if get final judgment in one state court or in fed’l court and sue in a different forum, the court in the second case must apply the law of claim/issue preclusion that is applied by the court where the first case was heard.

26. The analytical process • In analyzing a non-mutual IP problem, start by asking who litigated the issues in case one. In a strict mutuality jurisdiction, if suit 2 does not involve same parties or their privies, IP will not apply.

27. Review of the basics • In a non mutual jurisdiction, preclusion can only be asserted AGAINST a party who litigated and lost the issue in the first suit. • If jurisdiction only allows defensive use, then ip can only be used by the defendant to AVOID liability. If jurisdiction allows offensive IP and plaintiff can show that the offensive factors apply, the plaintiff can use IP to IMPOSE liability.

28. Query • A plane crashes and all 200 passengers die. Passenger 1 sues alleging the pilot was negligent. She loses. Passenger 2 sues alleging negligence, she loses. Passengers 3-25 all bring suit and all lose on the issue of negligence. Are passengers 26-200 precluded from litigating the issue of the pilot’s negligence? Should they be? • What happens if passengers 1-25 lose but passenger 26 & 27 win. Can passengers 28-200 assert issue preclusion to impose liability?