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if B fails to raise a compulsory counterclaim against A, and later files suit against A for what should have been the counterclaim in the first action, does claim preclusion bar the claim, or do we simply say 13(a) required him to assert that during action 1?

Just say 13(a) required it. This is not res judicata.

Retiarius wrote:Just say 13(a) required it. This is not res judicata.

Ok thanks a ton. Didn't think so. I'm trying to iron out these little wrinkles before my exam.

I was under the impression that this was a function of claim preclusion, at leas that's what Crunchtime says.

hawkeye22 wrote:I was under the impression that this was a function of claim preclusion, at leas that's what Crunchtime says.

Hmm interesting. I can see how it could be, thus why I raised the issue in the first place. One could argue this is the "same claim" that was actually litigated and brought to a final judgment by the same parties.

Same claim because it arises out of the same common nucleus of operative fact.

hawkeye22 wrote:I was under the impression that this was a function of claim preclusion, at leas that's what Crunchtime says.

The Barbri Freer lecture specifically says otherwise. That's where I got it from.

BCLS wrote:if B fails to raise a compulsory counterclaim against A, and later files suit against A for what should have been the counterclaim in the first action, does claim preclusion bar the claim, or do we simply say 13(a) required him to assert that during action 1?

You can go 13(a) and then Collateral Estoppel in the alternative. If 13(a) doesn't work, I couldn't see Res Judicata gaining anything.

hawkeye22 wrote:I was under the impression that this was a function of claim preclusion, at leas that's what Crunchtime says.

Failure to assert a compulsory counter claim will always be a 13(a) analysis first. You can score some ancillary points by mentioning that if it's denied, then Collateral Estoppel in the alternative.

BCLS wrote:if B fails to raise a compulsory counterclaim against A, and later files suit against A for what should have been the counterclaim in the first action, does claim preclusion bar the claim, or do we simply say 13(a) required him to assert that during action 1?

The village should berate B after the game for being a dumbass.

Retiarius wrote:Just say 13(a) required it. This is not res judicata.

Some courts say it is res judicata. Some courts think that allowing Rule 13 to carry with it an implication of preclusion would constitute a violation of the Rules Enabling Act ban against altering substantive rights, and accordingly say that failure to raise a compulsory counterclaim constitutes a waiver.

Either way: Failure to raise a compulsory counter claim that existed at time of prior litigation = an affirmative defense if the party tries to raise it in a subsequent action.

Why collateral estoppel and not claim preclusion?

d34dluk3 wrote:

BCLS wrote:if B fails to raise a compulsory counterclaim against A, and later files suit against A for what should have been the counterclaim in the first action, does claim preclusion bar the claim, or do we simply say 13(a) required him to assert that during action 1?

The village should berate B after the game for being a dumbass.

Negbomb, anybody?

BCLS wrote:Why collateral estoppel and not claim preclusion?

Which one applies will depend on context.

In order for collateral estoppel/issue preclusion to apply, the court must have actually litigated on that specific issue in the prior action and that issue must have been essential to the judgment. If it wasn't, issue preclusion will not apply.

However, even if issue preclusion doesn't apply, claim preclusion might if it arose out of the same transaction/occurrence and the party could have brought it but did not.

Thanks man makes sense!

BCLS wrote:Why collateral estoppel and not claim preclusion?

Now this might be me talking out of my ass, but this is how I see it.

Claim Preclusion is enacted when it's the same claimant vs. the same defendant, which we could only have if "B" actually filed a Compulsory counter claim. If he didn't file the compulsory counter claim then Claim Preclusion doesn't apply, since it fails to meet this requirement. At least for me, the analysis stops there.

If for some reason the judge does not grant my motion to dismiss, than I would try Collateral Estoppel in the alternative....which I really don't think is necessary because I don't see 13(a) NOT working. But if the Judge does not grant then we have all the requirements for collateral estoppel.

1) Case one ended in a final judgement on the merits
2) The claim was actually litigated
3) You'd have to argue that the claim was essential to the litigation (probably not a problem)
4) We'd be using it against someone who was a party in case 1
5) And B was a party in case one, so you wouldn't even have to do a mutuality analysis about how it no longer applies in most courts so long as the claimant is in privity with someone in case

*edit*

Keep in mind however that this analysis will be driven by the facts. It will depend on the nature of the claim in Case 1, the issues litigated in that case and how it relates to "B's" claim in Case 2.

BCLS wrote:if B fails to raise a compulsory counterclaim against A, and later files suit against A for what should have been the counterclaim in the first action, does claim preclusion bar the claim, or do we simply say 13(a) required him to assert that during action 1?

13(a) usually results in claim preclusion, not issue preclusion. A 13(a) compulsory counterclaim usually deals with similar facts but not necessarily the same issue.

Anyways, a 13(a) counterclaim must be filed or the person is precluded from bringing the claim again in the future. Essentially, 13(a) removes the "permissive" aspect from joinder of claims (18(a)) when the relationship between the claims are logical and immediate.

Claim preclusion applies when suits are brought based on the same transaction/occurence or operative facts. The language here is not the same as the language in 13(a) which requires the claim to be logical and immediate. However, the two essentially mean the same thing. When you have multiple claims based on the same set of facts, you must bring them all or you will lose the right to any claims you fail to bring. The only real difference between a compulsory counterclaim and res judicata (claim preclusion) is that 13(a) specifically applies to counterclaims and res judicata works for all claims.

Read Mitchell v. Federal Intermediate Bank (potato buyer case...name might be slightly off). The majority talk about how one cannot first use a set of facts as a shield and then use them as a sword. Essentially, the court argues that claim preclusion bars the use of the same set of as a sword (in a new suit) once the facts were used as a shield (affirmative defense) in a previous case.

Based on my understanding, 13(a) is basically a codified version of claim preclusion that applies only to counterclaims. I could be wrong, but that is how I understood it.

In the case of a codified compulsory counterclaim (i.e not common law) will preclude the bringing of the CCC in a separate action when it is not asserted in the first action when the statute or rule so provides (like 13a) However, courts usually will look at this through a collateral estoppel lens (or waiver) and not through res judicata.

Equitable Estoppel: Court will bar a previously un-stated counter claim if a party shows a position that is inconsistent with previous conduct when the change would burden a party that has detrimentally relied. Usually when D loses I think. If D wins on the strength of his defense then he is not estopped from bringing the action in a later suit (Schwabe) <---- note this was a permissive counterclaim

If there is no statute or rule and its a CCC at common law then bringing it up in a subsequent suit won't be allowed if it nullifies the precious judgment (Menard)

And above poster is right, it's claim preclusion, not issue preclusion.

It's Rule 13 estoppel, not Res Judicata.

RJ specifically requires the previous parties in the same formation; you can't have the same formation if no claim by D was ever raised.