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Issue Preclusion – mutuality issues

Issue Preclusion – mutuality issues. April 14. Please bring computers. Please complete the on line evaluation for this class. You can do it here or in the computer lab. Class will begin at 9:10. Issue preclusion - review. 1. the same issue of law or fact was actually litigated & determined

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Issue Preclusion – mutuality issues

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  1. Issue Preclusion – mutuality issues April 14

  2. Please bring computers • Please complete the on line evaluation for this class. You can do it here or in the computer lab. Class will begin at 9:10.

  3. Issue preclusion - review • 1. the same issue of law or fact was actually litigated & determined • 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 or privies (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. Defining the elements of IP • Parties or their privies – same analysis as for claim preclusion • [strict definition of privity in legal sense; or if not legal privity per se, was the party in substantial control of suit 1 or was there virtual representation in suit 1] • Remember – concept of privity strictly interpreted because of Due Process concerns

  6. 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.

  7. 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? • HINT: GO THROUGH ELEMENTS FOR IP

  8. 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?

  9. 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?

  10. 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?

  11. 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)

  12. Hint • Do Not confuse alternative determinations in which Either of the two findings would dictate the same judgment with the situation in which BOTH findings are necessary • (E.G. – For Sally to win, BOTH findings are nec’y; For Joe to win – Either finding works)

  13. 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?

  14. 7thAmendment • In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

  15. 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?

  16. 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)

  17. 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.

  18. 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 (or privy) 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.

  19. Defining the terms • Non mutual issue preclusion • Defensive IP – used by a defendant to AVOID liability • Offensive IP – used by a plaintiff to IMPOSE liability

  20. 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?

  21. 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) • The RULE: When plaintiff not a party to first suit, defendant cannot use ip defensively b/c of Due Process.

  22. Defensive v. Offensive IP • Offensive IP – don’t have Due Process concerns. Why?

  23. Parklane • What was suit 1 about; who were the parties; what was the judgment; • What is suit 2 about; who are the parties • What is the issue plaintiffs in suit 2 want to have precluded? • What issue must the Supreme Court decide?

  24. 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?

  25. 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?”

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

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

  28. factors • 1. Could the party trying to assert IP have joined earlier suit? • IS IT UNFAIR TO THE DEF (e.g.) • a. Did defendant have incentive to fully litigate the first action? (nominal damages) • b. Are there multiple, prior inconsistent judgments? • c. Are there any procedural opportunities in this suit that weren’t available in earlier action (e.g. discovery; dif evidentiary rules) • d. was suit one in an inconvenient forum that may have affected litigation opportunities

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

  30. 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?)

  31. 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.

  32. 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.

  33. 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.

  34. 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?

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