Finish Up Claim Preclusion

1
Finish Up Claim Preclusion
2
CP 4 Essential Inquiries

• Could the claim have been brought in the first
  suit?
• -- didnt exist/no SMJ/not a party (HW)
• Is allegedly barred claim
• the same as claim in first suit
• - Narrow Illinois test broader Restatement test.
• a compulsory counterclaim under13(a) or
• - Substantive requirements of 13(a).
• it could have been defense to first suit that
  would nullify rights established in first suit.
• (3)Was the party against whom CP is asserted in
  the later suit a party to the first suit, or in
  privity with a party who was?
• (4)Did the first suit end with final judgment
  on the merits?

3
3. Party against whom CP is asserted must have
been, or must have been privy to, party to first
suit.

• Bob sues doctor Bob sues doctor again.
• Result?
• Bob sues for personal injuries from wreck Bobs
  wife, Susie, sues for her injuries.
• Result?
• Bob sues for personal injuries from wreck Susie
  agrees to be bound by liability findings.
• Result?

• Bob sues for easement over Neighbors land wins
  Bob sells land to Susie Neighbor sues Susie for
  trespassing.
• Result?

4
Searle (673)

• What is the test for privity?
• E.g.
• (1)_______________
• Why not here?
• (2)_______________
• Why not here?
• When can a principal become bound by a suit
  against an agent?
• If a person has a right to intervene, but
  doesnt, is it in privity? Why?
• If a person testifies at the earlier suit, is it
  in privity? Why?

• 1st Suit Who sues who over what?
• Result?
• 2d suit Who sues who over what.
• D.Ct barred or not?
• S.Ct. barred or not? Why?

5
4. There must be an (a) final (b) judgment
(c) on the merits

• (a) Finality
• Majority rule judgment is final even though it
  is on appeal.
• (b) Judgment
• An agreed, or consent judgment, is a
  judgment. Martino.
• But a case which is settled without suit being
  filed does not have a judgment.
• So, what do you need to do to protect client?

6
(c) On the merits

• Judgment entered on jury verdict, jmol, summary
  judgment is on merits. right?
• Judgment voluntarily dismissing under 41(a) is
  not on merits unless judgment says otherwise.
• Judgment entered after granting 12(b)(6) motion?
• Why doesnt the fact that Rule 41(b) says that
  involuntary dismissal is on merits unless
  judgment says otherwise or it is for (a) lack of
  jurisdiction (b) improper venue or (c) failure
  to join an indispensable party answer that
  question?
• What does the preclusive effect of a dismissal
  under 12(b)(6) turn on?

7
Gargallo (683)

• First suit was a state court fraud case dismissed
  with prejudice under rule 37 for discovery
  violations.
• Second suit was federal court securities fraud
  case.
• Trial court dismissed, holding the first judgment
  was on the merits.

• CP
• (1)
• (2)
• Would it be a different result under either
  Illinois or Rst?
• (3)
• (4)
• Why is that correct?
• But why, then, no CP?

8
Problems 686

• 3
• 4
• 5(a)
• 5(b)
• 5(c)