Issue Preclusion mutuality issues

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Issue Preclusion mutuality issues

• April 14

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Please bring computers

• Please complete the on line evaluation.

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Issue preclusion - review

• 1. the same issue of law or fact was actually
  litigated detd
• 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)

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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

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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.

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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?

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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?

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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?

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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?

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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
  Sallys negligence? (i.e. Does issue preclusion
  apply when either one of the two jury findings
  support Joes victory in case one)

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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?

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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?
  

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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)

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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 hasnt made the demand in her
  complaint and the def wants one, make the demand
  for jury trial in your answer.

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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 shouldnt be able to take advantage of
  outcome. Only a few courts follow a strict
  mutuality approach today.

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Things to remember

• AB 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?

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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)

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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?

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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?

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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?

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Parklane

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

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Parklane

• What is the courts holding?
• What kind of factors should the district court
  look at in exercising its discretion?

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How does the court apply its holding to the facts
in Parklane?
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Dissent by Justice Rhenquist

• What was Justice Rhenquists 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?)

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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 fedl
  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.

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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.

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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.

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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 pilots 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?