CivPro2 Final Outline (Complex Joinder to Preclusion)

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CivPro2 Final Outline (Complex Joinder to Preclusion)

			I.	Themes of CivPro (FACE-F)—why the rules/statutes operate as they do, the goals they’re designed to meet: Fairness * Accuracy * Consistency * Efficiency * Finality

			A.	Big pic reminders: Do not allow analysis of one element/issue preclude you from getting to another issue. Remember Policy, esp when you're deciding on conclusions.

			II.	Complex Joinder:

			A.	Supplemental Jurisdiction, 28 usc 1367, Kroger

			1.	You need supp. jur. when you have multiple claims or parties and you do not have independent smj over one or some of them. Supp. Jur. gives you the opportunity to attach jur. to an anchor claim over which you do have jurisdiction. Four steps:

			a.	Identify anchor claim and basis of SMJ for that claim (diversity or fed Q)

			b.	Determine if supplemental claim comprises the same constitutional issue or case—does it arise out of same transaction? Look at the the logical relationship test, overlap among evidence, factual evidence for two claims.

			c.	1367b Exceptions:

			d.	1367c: Even if ct. has jurisdiction over the supplemental claim, ct. has discretion to decline jur when:

			e.	Kroger, p. 922-927—When parties lose diversity, does federal ct. have jurisdiction? No. Ct. says it doesn't have independent grounds for jurisdiction over this claim and won't allow it under supplemental jurisdiction.

			B.	Rule 19: Compulsory joinder (necessary parties) When one of the parties to a suit (usually D) wants to add a 3rd party (but usually 3rd party doesn't want to or can't be added):

			1.	Rule 19: Allows joinder of parties necessary to:

			2.	2-step test to see if party is necessary:

			a.	Step 1: Is the party desireable? Should party be added if it can be?

			b.	Step 2: Is party necessary or indispensable? Can we still continue w/case even if we can't add the party? Ct looks at:

			3.	Helzberg's Diamond v. Valley West Des Moines, 1977, p. 930—ct finds 3rd party is not indespensible

			C.	Rule 24: 3rd Party Intervention: When parties don't want a 3rd party in a suit, but the 3rd party wants in.

			1.	Intervention as Right. NRDC case.

			a.	4 elements:

			b.	If yes to first 3, and no to above, then 3rd party has right to intervene.

			c.	Clinton v. Jones also raised issue of Limited purpose intervention—i.e. media wanting to challenge protective order in Clinton case. 3rd party only wants in case for a limited purpose. Ct. goes through similar analysis, but bar a little lower.

			2.	Permissive intervention:

			a.	Must be timely

			b.	You must have question of law or fact in common w/the original case

			c.	Will 3rd-party intervention unreasonably prejudice or delay the interests of the parties already in the case?.

			d.	Are there other alternatives?

			3.	NRDC v. US NRC, 1978, p. 940—Rule 24 —P suing D for violating federal statute that requires environmental impact statement (EIS) before issuing license for uranium mills. Jurisdiction under federal question. The case would probably affect 3rd parties. At least three parties (mines) tried to intervene, claiming their rights to open mills might be affected. Ct. agreed and allowed one of them to intervene.

			a.	Prof added consideration of prejudice to parties already in suit (which is mentioned in 24b).

			b.	Why are the other two parties not allowed to intervene?

			(1).	They filed to join after UNC (1st 3rd party) was allowed in. Ct. could then consider whether UNC might already represent these party's interests. Also, Rule 24 mentions "upon timely application," so court might consider timeliness:

			(2).	Also, UNC had applied for a license, so its interest would be directly affected by a decision in this case. Other parties had not yet applied, so their interests were more speculative, future.

			(3).	Ct. distinguishes between the "minimal interest" a party has in a case (say its interest in protecting the environment) vs. more substantial interest (like profit).

			c.	Will UNC really adequately represent interests of other parties? Not necessarily. UNC could agree to a settlement that would allow UNC a permit w/out EIS, but require an EIS for all future permits. This would give UNC what it wants, but it wouldn’t be great for Kerr-McGee, Anaconda, Gulf, etc.

			d.	Ct. also needs to look at the competence of UNC's counsel—will they be able to adequately represent the interests of the other parties who want to intervene?

			III.	Discovery (Rules 26-37)

			A.	General notes and Purpose of Discovery:

			1.	Theoretically designed to promote all goals of CivPro: FACE-F

			2.	Provides all parties the chance to get whatever info they can from other parties; goal is to allow each side to present its best case, and for the judge or jury to come to the best decision.

			3.	Our open system of pleadings allows Ps to begin an action w/very little info. Then, the discovery phase allows the parties to set the scope of the litigation.

			4.	Narrows the issues, defines the scope of the dispute (aids efficiency)

			5.	Can also promote settlement (aid efficiency)

			6.	Designed to promote fairness. Supposed to eliminate "gotcha" aspect of dispute so decisions can be based on fact rather than sensationalism or emotin. Rules designed to minimize "fishing expeditions."

			7.	Negatives: Potential high cost; often generates a lot of satellite litigation about what is/is not discoverable.

			B.	Mechanisms for discovery:

			1.	Initial disclosures under Rule 26a

			a.	Limited scope. You must disclose only witnesses or documents that you may use to support your claim or defense in the action.

			b.	Must also disclose certain things about insurance policies and damages.

			c.	If parties don't disclose something that falls under this rule, the other party can move to compel disclosure under Rule 37(a). Failure to disclose as required under 26a means the undisclosed evidence/witnesses cannot be used at trial. Ct. can also impose other sanctions at its discretion under 37c1. (Good incentive to be as complete as possible in disclosures.)

			d.	Four categories of initial disclosures:

			2.	Methods of getting info from other party; Governed by Rules 30-36 (need not know details of each rule, just generally and certain limitations on each):

			3.	Rule 33: Interrogatories—Written questions that elicit written answers. Cheap and easy; good way to get started. Answers to questions might to lead to next step in discovery.

			a.	After initial disclosures, interrogatories are used mostly to ask about stuff the other side knows that might hurt their case. (They don't have to disclose that stuff in initial disclosures.)

			b.	Interrogatories can only be exchanged between parties in the case.

			c.	33(b)(1): Interrogatories must be answered separately and fully under oath, unless it's objected to, in which case you must state your objection and answer to the extent the interrogatory is no objectionable.

			4.	Depositions (Rules 27-28, 30-32, Hunter 89) —interviews w/parties to case and witnesses

			a.	Depositions can produce more detailed and potentially "better" answers because the lawyer filter can be decreased. Lawyers write interrogatories, not the parties in a case.

			b.	Depositions also allow you to see the person's demeanor, body language, how he/she reacts to you, etc.

			c.	Rule 30c: Any objections to a deposition will be noted for the record, but the deposition will continue, w/testimony being taken subject to the objections.

			d.	Rule 30d1: If your objection is asserting attorney-client privilege, your client doesn't have to answer the Q because the privilege is designed to protect the confidentiality of that info.

			e.	To depose a 3rd party, you need to subpoena them. If you want them to bring documents, you have to use a subpoena duces tecum.

			5.	Rule 34: Requests for documents and things—

			a.	No limits on requests for documents/other tangible things (except that privileged info. will not be provided in response). But problems related to document requests:

			b.	Items must be "in the possession, custody or control of the party upon whom the request is served." Can also apply the "influence test": if party doesn't have actual possession, but has influence to compel production of the documents, then party likely has "sufficient control" to produce them.

			c.	You also must be careful you don't disclose anything that's privileged.

			d.	Rule 34 only applies to parties to the action. You can subpoena documents and things from other parties via Rule 45a1c.

			6.	Rule 35: Physical and Mental (medical) exams:

			a.	You must get court order for mental/physical exam.

			b.	Must be against a party.

			c.	Must show the condition you want examined is in controversy and that there is good cause for the exam. Schlagenhauf.

			d.	Ct. can also always order exam to determine if witness is competent to be deposed (to ensure accuracy and fairness...)

			e.	Cts. more likely to grant request for exam when it comes from party against whom the medical condition would count. I.e.,

			7.	Rule 36: Admissions

			a.	Operate primarily to lock in the other party's version of the case or to obtain concessions. Admissions can take issues off the table. Requests for admission elicits binding responses to specific factual questions.

			b.	Why admit anything? Because the rules say you must; if you don't admit something, you may be sanctioned.

			c.	You can refuse to admit something if there are reasonable grounds to believe the fact cannot be proven.

			8.	26e: Duty to supplement if things change

			C.	Scope of Discovery & Limits on Discovery & Sanctions and Judicial Supervision of Discovery

			1.	26b1: General scope—26(b)(1) limits discovery to "any matter, not privileged, that is relevant to the claim or defense of any party"

			a.	Must be relevant to a claim or defense of a party. Hill.

			b.	You can get info relevant to subject matter if you show good cause.

			c.	Request for info must be reasonably calculated to lead to admissable evidence. (Doesn't have to be admissible, just needs to lead to admissible evidence.)

			d.	Info must be not privileged

			e.	For good cause, ct. may also order discovery on any matter relevant to the subject matter. This is a broader category than "claims and defenses." The default is more narrow discovery, but ct. has discretion to broaden discovery where necessary.

			2.	Limits (defenses to the requests for discovery)

			a.	Rule 26b2: If request is overbroad (as to time or subject matter) or burdensome

			b.	26b3: Trial Prep/work product doctrine (Hickman)

			c.	26a2 & 26b4 Experts: Thompson and Chiquita

			3.	26c: Protective Orders

			a.	Defensive limit on discovery; when party seeks to protect something from discovery by opposing party. Discretionary. Judge must balance equities in order to ensure integrity of discovery process (liberal) and prevent potential abuse.

			b.	Party seeking order must show good cause.

			c.	Parties must have tried to work issue out themselves (efficiency, conservation of judicial resources)

			d.	8 options allow judge to protect party/person from annoyance, embarrassment, oppression, or undue burden or expense (see R26c, p.83)

			4.	26g: Enforcement and Sanctions on discovery

			a.	Just like Rule 11 but for discovery

			b.	You warrant that you're asking for reasonable info, that your requests are consistent w/rules, you're asking for a proper purpose, and that your requests aren't unreasonably burdonsome. Ct. uses an objective standard.

			c.	If ct. finds you signed a request or response and then violated its rules, the ct. must impose sanctions either on the party or the attorney or both, depending on who's at fault.

			5.	Rule 37: Motion to compel, Marketing Solutions

			a.	37a: You must bring a motion to compel after you've conferred in good faith. Ct. will decide whether to order the info be produced.

			b.	37b: If ct. decides party must comply and party fails to comply, ct. can levy sanctions at its discretion. Sanctions can include:

			c.	37c: If you fail to disclose under 26a, you will not be permitted to introduce that evidence at trial unless it was harmless or you had a substantial justification for your failure to disclose.

			d.	37g: Procedural Safeguards: Before levying sanctions, ct. must ensure due process by giving prior notice and opp' to be heard.

			e.	Appellate standard for reviewing sanctions is abuse of discretion.

			IV.	Choice of law: (Erie)

			A.	The question: In a diversity case, do you apply federal or state law?

			1.	Is the state law/constitution/common law issue controlled by (fall w/in the scope of) a federal statute or rule?

			a.	Look at purposes of both rules/laws—do they have same purpose. Is there a direct conflict?

			b.	Is there a way to interpret them (more narrowly, perhaps) to avoid a conflict?

			2.	If federal statute does control, go down REA side:

			a.	1) Constitutionality: Const. authorizes Congr. to make procedural rules. Is the controlling federal rule/statute arguably procedural?

			b.	2) If yes and you're dealing w/a federal rule, move to second prong of REA: Does the federal rule more than incidentally affect a substantive right? If no, then apply federal rule. If it does, apply state law.

			3.	If federal law/rule does not control: Go down RDA side. Is this a rule of decision or not?

			a.	Look to twin aims of Erie:

			b.	If answer to either q is yes, apply state law, unless there's a countervailing federal concern (Byrd—the 7th Amend. right to jury trial is the only contervailing federal concern that's been shown to override application of state law under these circumstances).

			c.	If answer to both q's is no, apply federal law.

			V.	Resolution w/out Trial

			A.	Rule 56: Summary Judgment: entry of J by the ct. in favor of either party w/out trial. Rule 56 motion comes after discovery. Basic claim: Your evidence does not allow you to prove your complaint.

			1.	56c Grounds for Sum J: Moving party must show there is no dispute over any genuine issue of material fact (GIMF) and the movant is entitled to J as a matter of law.

			a.	Genuine issue: You need evidence on both sides that raises a genuine issue. Must look at nature of evidence

			b.	Material fact: A fact that, if established, would affect the outcome of the case. It's a fact that counts as far as the law is concerned.

			2.	Disputes of fact/credibility are never resolved on sum J (issues to be decided by jury). Sum Judgment is a matter of law (not facts). Ct. is saying there just isn't any evidence to support a fact. Only granted when facts aren't in controversy.

			3.	Burdens of showing no GIMF:

			a.	Burden is always on the moving party.

			b.	If moving party has the burden at trial (usually the P), the moving party must have in admissible form evidence that establishes absence of GIMF.

			c.	If moving party doesn't have burden at trial (D), the moving party must show the absence of admissible evidence to support the non-moving party's case. Celotex.

			d.	If moving party meets initial burden, burden shifts to non-moving party to demonstrate that there is a GIMF.

			4.	Rule 56 v. 12b6:

			a.	Both challenge the legal or factual sufficiency of a party's charge.

			b.	12b6 focuses only on the complaint (pleadings). Basic claim: You don't even allege sufficient facts to sustain your complaint. Two reasons why complaint does not allege a claim for which relief can be granted:

			c.	Rule 56 motion comes after discovery.

			5.	Rule 56f: Attorney can file affadavit for more time prior to Sum J.

			a.	If party moves for summary J and other party needs more time, non-moving party can submit affadavit asking for more time and explaining why they need it. Ct. can either delay or dismiss the summ judgment motion.

			B.	Rule 55— Default J.

			1.	Usually if D doesn't show up—most common reason for Default J.

			2.	D can get relief from default J. under 55c if they can show good reason for not having responded, or under 60b which lists certain reasons for getting out of a prior judgment.

			C.	Rule 41: Dismissal

			1.	41a: Voluntary dismissal: P wants out for whatever reason; up to ct. whether to grant, usually w/out prejudice.

			2.	41b: Involuntary dismissal: Will operate as adjudication on the merits unless it's for lack of personal jur., venue or Rule 19 violation, or unless the ct. otherwise states the dismissal is w/out prejudice.

			D.	Settlement or other negotiation.

			1.	Remember issues of settlement clauses and when decisions can be vacated. Neary v. Bancorp

			2.	Rule 16: Mediation and coercian—how can judges "force" settlement? Lockhart. See also judicial management above.

			3.	Rule 54d: Costs of Js, atty's fees

			4.	Rule 68: Offer of J

			5.	Arbitration

			E.	Rule 16: judicial management.

			1.	Goals: To encourage settlement, or barring that, keep things moving efficiently, fairly, etc.

			2.	16b: Scheduling Orders (Sanders)—Will control unless modified for good cause.

			3.	16e: Final Pre-Trial Order (McKee)—Will control unless modified to prevent manifest injustice. A much higher standard.

			4.	16f: Sanctions (follow 37b2B, C, and D)

			5.	G. Heilman Brewing: Can a judge pressure a party to settle by requiring the presence of a person w/authority to settle at the confrerence? Yes. Ct. used cost-benefit analysis to decide: Burden on the parties v. benefits to ct., society, and the parties. Factors included length and complexity of case, stakes, and ability of party to attend.

			VI.	Trial: Right to Jury

			A.	Rule 38b: In fed. ct. you must demand a jury trial in writing w/in 10 days of service of the last pleading or right may be waived.

			1.	In state ct: the local rules will be state law w/in meaning of FRCP 81c. See Segal v. American Gas Co.

			B.	Rule 39b: You must ask for jury trial in writing.

			1.	Ct. has discretion to allow party who misses deadline to get a jury trial.

			C.	7th Amendment guarantees right to trial by jury:

			1.	Only applies to federal courts

			2.	Right to jury trial is preserved only in cases tried at law (i.e. w/legal remedies)

			3.	Equitable remedies: only available if an inadequate remedy at law (i.e. if $ damages are inadequate); can be decided w/out jury.

			D.	Right to jury today depends on whether you would have had a jury trial at common law in England in 1791. Two problems in applying doctrine (7th Amend.)

			1.	New claims added that weren't at common law in 1791

			2.	Major differences in procedures and ct. systems btwn 1791 and today

			3.	Juries decide issues of fact, not law. But if there's a question, you look to past: Did juries decide this issue in the past? If it's unclear, then judge will determine who is the better decision-maker.

			4.	Congress has right to deny right to jury if it's a public right (a right created by statute).

			E.	How to determine right to jury trial:

			1.	Determine issue by issue. Dairy Queen, Local 391 v. Terry

			2.	If an issue of fact underlies BOTH law and equity issues, jury trial is required. Beacon Theatres.

			3.	Order: Try the jury issues first, before the equity issues. Dairy Queen.

			4.	When new claims are added that weren't avail at common law (Terry c.ase. )

			a.	Does statute provide for jury trial?

			b.	If not explicit, is there other langauge that suggests a right to jury was intended? How does statute describe remedy?

			c.	If still can't tell:

			VII.	Trial Order: Opening stmts -->P’s case -->D’s case --> Closing Arguments JMOL --> Jury Decision Renewed JMOL --> Appeal.

			VIII.	Controls over Jury

			A.	Law of evidence and jury instruction control what info the jury gets. Motions control whether case gets to jury or allow change of jury's decision after the verdict

			B.	Rule 50a —JMOL (Judgment as a Matter Of Law)

			1.	Purpose: To protect D's from situations where there is little/no evidence on P's side, but the jury may award damages out of sympathy.

			a.	Verdicts cannot be based on possibilities; must be sound reasonable bases for jury or ct. to show that party met its burden

			2.	Timing: You must bring it before case goes to jury. If granted then, it's a directed verdict. If denied, then you've preserved your right to raise it after verdict.

			3.	You can first move for JMOL after non-moving party has been fully heard on the issue.

			a.	JMOL granted only if there is no legally sufficient evidenciary basis that a reasonable jury could find for the non-moving party on that issue. Similar to GIMF test.

			b.	Norton and Chamberlain

			4.	Issues For jury to decide:

			a.	Circumstantial evidence:

			b.	Credibility

			5.	Constitutionality of JMOL:

			a.	JMOL does not violate 7th Amend. right to jury trial. Galloway ct. found 7th Amend. was designed to preserve basic institution of Jury Trial in only its most fundamental elements, "not the great mass of specific procedural forms and details."

			C.	Rule 50B: Renewed JMOL (JNOV)

			1.	Can renew motion for JMOL after jury verdict. If granted, it's a Judgment Notwithstanding the Verdict (JNOV).

			2.	JNOV only granted if jury reached a seriously erroneous verdict that will result in miscarriage of justice because of:

			3.	Procedures: You have to save opportunity to move for JNOV by moving for JMOL at close of evidence.

			4.	Why judge might deny a 50a motion for JMOL, but then grant a 50b motion after verdict:

			a.	If there is insufficient evidence on one side, judge may hope jury makes "right decision" and still comport w/7th Amend.

			b.	If jury makes the "wrong" decision, judge can "reverse" by granting JMOL. If case is then appealed and appellate ct. decides JMOL was in error, lower ct. will simply reinstate jury verdict rather than sending the case back for an entirely new trial. (If judge grants JMOL prior to jury verdict, then JMOL is reversed on appeal, case must be tried anew).

			5.	Appellate standard: JMOL is reviewed by appellate ct De Novo.

			D.	Rule 59: Motion for new trial (Lindh)

			1.	59a: grounds for new trial (basic, read the rule). Generally may be granted when:

			2.	59b: Timing: w/in 10 days after entry of J

			3.	59d: Trial judge has nearly unlimited discretion to grant

			4.	Usually a party will bring both JMOL and Rule 59 motion for new trial. Judge will decide both at same time for efficiency purposes. Grant of JMOL with grant of new trial is not immediately appealable b/c the new trial just proceeds w/out appeal necessary.

			5.	New trials are reviewed for abuse of discretion. Trial ct. gets greater latitude when it grants new trial than when it denies it.

			E.	Conditional New Trial: When judge determines jury award of damages was excessive she has 3 choices: 1) Let J stand, 2) New Trial, or 3) Conditional New Trial.

			1.	Judge tries to determine highest max. award that would be legally consistent w/precedent and reason, then bargains w/P to avoid new trial and still preserve justice.

			2.	Remittitur: The process when judge discounts the jury verdict (asks P to accept lower .

			3.	Additur: If J thinks jury verdict inadequate, she could ask D to award higher damages. This is no longer allowed in federal cts. (found unconstitutional b/c violates 7th Amend.), but still possible in state cts.

			IX.	28 USC 1291 — Appeals:

			A.	Requirements for an appeal:

			1.	You must be a party

			2.	You must have an adverse judgment

			3.	You must have raised the issue below.

			4.	Judgment must be final under 1291. Apex Hosiery, Liberty Mutual. Final J is: A J that ends the litigation on the mertis and leaves nothing to do but execute the j.

			B.	Departures from finality

			1.	Rule 54b: If you have multiple parties or claims, ct. may direct entry of final J as to one or more but fewer than all the claims or parties only upon express determination that there is no just reason for delay as to that claim/party.

			a.	If you get a final resolution of one claim, you are allowed to appeal that, while the others may continue in the original litigation. You still need judge's express determination that there is no just reason for delay. Judge looks at:

			2.	Collateral Order Doctrine: A court-made exception to final J rule: Appellate ct. has discretion to hear an interlocutory appeal. Will only do so when:

			a.	The issue is collateral to/separate from the merits of the case

			b.	The issue involves important rights. No concrete rule about what's "important," but factors you might consider.

			(1).	what is the impact of this decision (the decision being appealed) to the party who is appealing, and to the other parties in the case, and to the case itself?

			(2).	what is the impact of this decision on other courts, other parties, future precedent, etc?

			c.	Ct's order conclusively determined/completely resolved the disputed question. (IOW: Ct's order was final J on that issue; lower Ct. can no longer change its mind on the issue.)

			d.	The issue will effectively be unreviewable on an appeal from a final J for the other issues (i.e., if resolution of the other issues (at the end of the case) would moot this one issue, and that could cause injustice, or if waiting for that final resolution would cause injustice).

			3.	Writ of Mandamus: A court order to a public official (e.g. a lower court judge) to perform his duties as required by law.

			a.	Not technically an appeal; you’re suing the trial judge at appellate level to have them set the trial judge right. § 1651: notes jurisdiction specifically - that’s integral. As is jury trial right.

			b.	Writ of mandamus is also a way to have an appellate ct. review an interlocutory judgment. Rare.

			c.	Issued according to appellate discretion; invoked only in extraordinary circumstances; i.e. judicial usurpation of power. Five factors when it might be issued:

			C.	1292: Interlocutory Appeals (other than via collateral order doctrine)

			1.	Statutory exception to the final J rule. Purpose is to attempt to counter the potential disadvantages of the "final J rule."

			2.	1292a1: If the decision is about an injunction (granting, continuing, modifying, refusing, or dissolving an injunction) you can bring an immediate appeal.

			3.	1292b: If you have a dispute over a controlling issue of law over which there is substantial disagreement, and it would materially advance the ultimate determination of the case, the district court can certify the issue for appeal and the appellate court can decide whether to take it or not.

			4.	Atlantic City Elec. Co v. General Elec., Gillespie v. U.S. Steel

			D.	Scope of Appellate Review:

			1.	Level of deference an appellate ct. gives to the ct. below is issue-specific.

			X.	Binding/Preclusive effect of judgments:

			A.	General Notes:

			1.	Claim/issue preclusion are defenses D would raise. "You can't bring that claim against me b/c that claim has already been litigated." OR: "You can't raise that issue in this case b/c that issue has already been litigated". Designed to promote consistency, finality and fairness. Often must balance efficiency v. accuracy.

			2.	Governed by full faith and credit. Look at 1st case; law that governs that case decides what will be precluded.

			B.	Claim preclusion (aka "res judicata)—

			1.	Effect: forbids a party from litigating the same claim against the same D when it has already been litigated or should have been litigated in a previous action.

			2.	Example: She gets thrown from motorcycle and injures her arm. Sues the city and wins. Then wants to sue same D for injury to her leg. City would respond by noting both are aspects of personal injury (the same legal claim).

			3.	Can be raised as an affirmative defense or in a summary judgment motion.

			4.	Claim preclusion bars a second suit when the first suit arose out of the same transaction even if they present different legal theories. P could have sued in state court for both replevin and under Section 1983, for damages. Both theories alleged the same conduct; therefore claim preclusion bars P's federal suit.

			5.	Elements of Claim Preclusion:

			a.	Same party or parties are in privity in the first case

			b.	Second case must be about the Same Claim (Frier)

			c.	First case must have reached final judgment (was it a valid judgment? Did 1st ct. have jurisdiction?) Same definition as for appeal.

			d.	First case had to have been decided on the merits

			C.	Issue preclusion (aka "collateral estoppel")

			1.	Used when a subsequent lawsuit involves a different claim that riases issues already litigated in a prior lawsuit.

			2.	Distinguished from Claim Preclusion:

			3.	Elements of Issue Preclusion:

			a.	Same issue: both substantive and procedural (burden of proof) must be the same

			b.	Actually litigated—An issue is "actually litigated" when it has been presented to judge or jury as shown by record, opinion, pleadings, and extrinsic evidence.

			c.	Was it actually decided? If there are multiple grounds for the decision and you don't know if the particular issue was actually decided, then you have to assume it wasn't. Issue won't be precluded.

			d.	Was the issue essential to the judgment? Would you have a different result if the jury or judge had found differently w/respect to that issue?

			4.	Changes in legal precedent: If change occurs btwn case 1 and case 2, issue will not be precluded in second case.

			5.	Mixed questions of law and fact: When new historical facts are the basis of 2nd suit and there has been a change in the legal regime, IP will NOT preclude litigation of facts in case 2.

			D.	Non-mutuality: (mutuality is no longer required)

			1.	Old doctrine: A party not bound by an earlier judgment (because not a party to it) could not use that judgment to bind his adversary who had been a party to the former action. The rule prohibiting a stranger's use of collateral estoppel was known as the doctrine of mutuality.

			a.	Reasoning: If a litigant could not be burdened with the effect of a prior judgment, it seemed inequitable to allow him to benefit from it. Bernhard v. BofA

			2.	New doctrine: even if you weren't a party to the first suit, you may be able to preclude opponent from relitigating issues that were decided in that first case.

			a.	Rationale: the "victim" of issue preclusion had a full and fair opportunity to litigate the matter in the first suit, so they can't relitigate the issue again simply because it's being raised by a new party.

			b.	At the same time, a party who has never had an opportunity to litigate an issue cannot be precluded from doing so.

			c.	IOW: Everybody gets their day in court, but once you've had your day, you don't get a second day on the same thing.

			3.	Mutuality: A party in a first case can bind a party in a second case, only if the second party was in privity w/the party in the first case.

			4.	Defensive issue preclusion is almost always allowed: Where a D in the second action seeks to assert estoppel against the P — D trying to use a previously-decided issue against P; D trying to preclude P from relitigating an issue, so preclusion is being used as a "shield" for D rather than as a sword for P. Blonder-Tongue Labs.

			5.	Offensive issue preclusion is generally allowed also, w/4 exceptions (P in a second action trying to hold a previously-decided issue against a D; P is using preclusion as a "sword" so presents possibility of unfairness). The 4 exceptions:

			a.	Wait and see plaintiff. Only applies if the parties are closely related (i.e., husband and wife); Ps that could or should have joined in the first case, but chose not to b/c waiting to see outcome of suit 1.

			b.	Did D have reason to fully litigate 1st suit?

			c.	Were there inconsistent prior judgments?

			d.	Were there procedural opportunities, not available in first case, that would have affected the outcome?