Issue/Claim Preclusion Question

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MonsterTRM
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Issue/Claim Preclusion Question

Postby MonsterTRM » Wed Dec 05, 2012 11:56 pm

What procedural motion should one make to use issue preclusion (collateral estoppel) or claim preclusion (res judicata) to bar an issue or claim?

I thought they were affirmative defenses, so they'd go in the responsive pleading under rule 8(c)? Could they go in a Rule 56 motion?

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stillwater
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Re: Issue/Claim Preclusion Question

Postby stillwater » Thu Dec 06, 2012 12:00 am

MonsterTRM wrote:What procedural motion should one make to use issue preclusion (collateral estoppel) or claim preclusion (res judicata) to bar an issue or claim?

I thought they were affirmative defenses, so they'd go in the responsive pleading under rule 8(c)? Could they go in a Rule 56 motion?


It's an affirmative defense. 56 is sum judg. Use 8(c) not 56. With a 56 motion you are saying there is no genuine issue of material fact. Thus you don't need a jury as a fact-finding body and the judge can make a ruling as a matter of law.

MonsterTRM
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Re: Issue/Claim Preclusion Question

Postby MonsterTRM » Thu Dec 06, 2012 12:10 am

Thanks for the quick response.

I'm doing an E&E, and basically the idea is that the plaintiff wants to assert issue preclusion and estop an issue that the parties had already litigated (to keep the defendant from raising the same defense). Since the plaintiff can only file the complaint, 8(c) doesn't apply to the complaint so you have to find some other way to assert the affirmative defense of issue preclusion. I guess that's why the E&E says you need to raise it as a motion for summary judgment.

musicfor18
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Re: Issue/Claim Preclusion Question

Postby musicfor18 » Thu Dec 06, 2012 12:24 am

Yes, definitely an 8(c) affirmative defense.

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stillwater
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Re: Issue/Claim Preclusion Question

Postby stillwater » Thu Dec 06, 2012 12:26 am

musicfor18 wrote:Yes, definitely an 8(c) affirmative defense.


I think he is referring probably to nonmutual offensive collateral estoppel. I assume it is still a matter of Rule 8 pleading but I am not sure.

musicfor18
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Re: Issue/Claim Preclusion Question

Postby musicfor18 » Thu Dec 06, 2012 12:28 am

MonsterTRM wrote:Thanks for the quick response.

I'm doing an E&E, and basically the idea is that the plaintiff wants to assert issue preclusion and estop an issue that the parties had already litigated (to keep the defendant from raising the same defense). Since the plaintiff can only file the complaint, 8(c) doesn't apply to the complaint so you have to find some other way to assert the affirmative defense of issue preclusion. I guess that's why the E&E says you need to raise it as a motion for summary judgment.


Oh, sorry. I didn't read this post carefully before I posted my response. I actually don't know the answer to this, but I'd assume E&E is correct. And it makes sense to put it in a R. 56 motion.




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