CIVIL PROCEDURE CLASS 41

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CIVIL PROCEDURE CLASS 41

• Professor Fischer
• Columbus School of Law
• The Catholic University of America
• Dec 3, 2003

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ANNOUNCEMENTS

• Exam review classes
• Exam is completely open book.

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EXAM TIPS

• Read questions carefully and remember to answer
  the question asked
• Use IRAC form for each issue in question
• Answer every question manage your time carefully
• Get sufficient sleep the night before the exam.

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ELEMENTS OF ISSUE PRECLUSION

• Same issue
• Actually litigated thus an admission is not
  enough for issue preclusion to apply
• Actually decided by a valid and final judgment
• Determination is essential to judgment
• Some courts require mutuality, i.e. same parties

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NECESSARY TO THE JUDGMENT

• Davis sued Rios for negligence in an automobile
  collision. The jury found Rios negligent but
  also found Davis contributorily negligent.
  Judgment entered for Rios.
• Should the court in a subsequent claim by Rios
  for injuries suffered in the same collision hold
  that Rios was barred from relitigating on the
  basis that his contributory negligence determined
  in first proceeding?

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NECESSARY TO THE JUDGMENT

• The finding that Rios was negligent was not
  essential to the judgment and the judgment was
  not based thereon. Since the judgment was in
  favor of Rios he had no right to complain of or
  appeal from the finding that he was guilty of
  such negligence even if such finding had been
  without support in the evidence. Right of appeal
  is from a judgment not a finding.

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NECESSARY TO THE JUDGMENT

• A useful test_ ask yourself if the issue had
  been decided the opposite way, would the same
  judgment have been entered? If so, the judgment
  did not depend on the way the issue was actually
  resolved. Applying this test to Rios, we find
  that once jury found Davis to be contributorily
  negligent, Rios had to win.

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JUDGMENT ON ALTERNATE GROUNDS

• What if judgment is explicitly based on
  alternate grounds? Strictly speaking, neither
  ground alone is necessary to judgment.
• Yet each supports the judgment and is made
  against the losing party, so all may be reviewed
  on appeal
• Old rule each alternate ground entitled to
  preclusive effect

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JUDGMENT ON ALTERNATE GROUNDS

• Currently, there is a division of authority on
  this question.
• Restatement (Second) of Judgments states that
  if a judgment of a court of first instance is
  based on determinations of two issues, either of
  which standing independently would be sufficient
  to support the result, the judgment is not
  conclusive with respect to either issue standing
  alone.

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HOULT CASE (3d Cir. 1998)

• What was Jennifer Hoults cause of action in the
  first action?
• What was the outcome of the first action?
• What is David Hoults cause of action in the
  second action?
• What is the procedural issue in the second
  action?
• How did the trial court rule?

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THE HOULT APPEAL

• Does the First Circuit affirm or dismiss Jennifer
  Hoults appeal?
• What is the First Circuits reasoning?

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MUTUALITY AND COLLATERAL ESTOPPEL

• Old rule parties had to be the same
• New rule in federal court Parklane Hosiery Co.
  v. Shore (1979)
• NOTE THAT PARKLANE applies only to federal
  courts. State courts are not obligated to follow
  Supreme Court. You will need to check the law
  carefully to see whether a jurisdiction has
  abandoned mutuality, and if so, to what extent.

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DEFENSIVE NON-MUTUAL COLLATERAL ESTOPPEL

• In Blonder-Tongue, the Supreme Court first
  endorses the use of nonmutual estoppel
• What are the key facts of Blonder-Tongue
• What is the policy justification for the Supreme
  Courts reversal of its long-standing rule
  requiring mutuality?
• What is the difference between the use of
  collateral estoppel in Blonder-Tongue and in
  Parklane?

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DEFENSIVE NONMUTUAL ESTOPPEL

• Suit 1 P sues D1 (P loses on Issue A)
• Suit 1 P sues D2 (D2 pleads collateral estoppel
  to bar plaintiff from relitigating Issue A)

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OFFENSIVE NONMUTUAL COLLATERAL ESTOPPEL

• Suit 1 P1 sues D (D loses on Issue A)
• Suit 2 P2 sues D (new plaintiff invokes
  collateral estoppel to establish Issue A in her
  suit against D)
• What are the risks posed by offensive use of
  estoppel?

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SUPREME COURT IN PARKLANE

• Does the Supreme Court categorically endorse or
  reject offensive nonmutual collateral estoppel?
• What factors must lower courts consider?

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4 PARKLANE FACTORS

• 1. Could nonparty have joined prior litigation?
• 2. Was subsequent litigation foreseeable at time
  of first suit?
• 3. Is judgment being relied on consistent with
  prior judgments against this D?
• 4. Are there any procedural opportunities
  available to D in second action that did not
  exist in the first that would lead to a different
  result?

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NEW UNIT

• More consideration of venue (forum no conveniens
  and transfer of venue)

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FORUM SELECTION CLAUSES

• Parties may select a venue that is not a
  statutory venue by including a forum selection
  clause in a contract.
• Non-negotiable forum selection clauses have been
  enforced by the Supreme Court.

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FORUM NON CONVENIENS

• Compare this doctrine with
• 28 U.S.C. 1404
• 28 US.C. 1406

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28 U.S.C. 1404

• (a) For the convenience of parties and witnesses,
  in the interest of justice, a district court may
  transfer any civil action to any other district
  or division where it might have been brought
• PIPER - After removal to US District Court for
  Central District of CA, action is transferred to
  US District Court for Middle District of PA
• Cases are usually transferred under this section
  between federal district courts rather than
  dismissed for forum non conveniens

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Improper Venue Provision

• 28 U.S.C. 1406(a) permits court to dismiss if
  venue has improperly been laid or if it be in
  the interest of justice, transfer the case to
  any district or division in which it could have
  been brought

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PIPER AIRCRAFT CO. V. REYNO (1981) CB 784

• Landmark decision on forum non conveniens
• Who is the plaintiff?
• Who is plaintiff suing?
• What is the cause of action?
• Where does plaintiff bring the action?
• Why does plaintiff choose that forum?

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Piper Aircraft Co. v. Reyno

• Wrongful death suit originally brought in
  Superior Court of California by Gaynell Reyno on
  behalf of 5 Scottish passengers
• Defendants were Piper Aircraft Co. (aircraft mfr)
  (PA) and Hartzell Propeller Inc. (OH) (propeller
  mfr)

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Scottish Legal System

• See also Kevin F. Crombies useful site
  http//www.scottishlaw.org.uk/

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DEFENDANTS MOTIONS

• Explain the strategies and procedural moves of
  defendants Piper and Hartzell. How did the case
  get from the state court in CA (where filed) to
  the federal court in PA?

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28 U.S.C. 1404

• (a) For the convenience of parties and witnesses,
  in the interest of justice, a district court may
  transfer any civil action to any other district
  or division where it might have been brought
• PIPER - After removal to US District Court for
  Central District of CA, action is transferred to
  US District Court for Middle District of PA

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IN THE U.S. SUPREME COURT

• How does the majority rule in the U.S. Supreme
  Court? Describe Justice Marshalls reasoning in
  his majority opinion.

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PIPER Test

• In applying the doctrine of forum non conveniens
  to a foreign plaintiff, Supreme Court essentially
  follows two steps it had articulated in Gilbert.
  
• 1. Requires a suitable forum in another country
• 2. Considers 4 factors or interests to determine
  which forum would best serve private and public
  interests
• Unfavorable choice of law alone should not bar
  dismissal

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SIGNIFICANCE OF PIPER v. REYNO

• This case extends doctrine of forum non
  conveniens for use in an international context by
  adopting a lower threshold and by decreasing its
  deference to foreign plaintiffs choice of forum
  (takes nationality into consideration)
• The foundation for any modern forum non
  conveniens analysis in an international context.
  
• Decision has prompted continuing criticism

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LORD DENNING

• Famous and long-lived English judge
• As a moth is drawn to the light, so is a
  litigant drawn to the United States.

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Attractions of U.S. Legal System For Foreign
Plaintiffs

• Encouragement by U.S. plaintiffs bar for
  litigants to bring suit in U.S.
• contingency fee arrangements
• extensive pre-trial discovery
• advantageous substantive law
• availability of trial by jury
• tendency for large jury awards