desiballa21 wrote:P v. D and P wins in federal court. D appeals, and while D appeals.. new plaintiff sues D in state court hoping to get preclusive effect from case 1.
The state court does:
A) Follow fed law of issue preclusion and give preclusive effect
B) follow fed law of claim preclusion and give preclusive effect
C) give no res judicata b/c first judgment is not yet final
D) Follow NY law regarding res judicata b/c forum may apply its own choice-of-law rules -- then do w/e the state law requires
E) Follow the state law from where the previous case's federal court sat (Klaxon) -- the do w/e that state law requires.
Someone else feel free to weigh in here, but here's my take: the issue has not been fully adjudicated until the appeal process is complete, so issue preclusion wouldn't kick in until afterward.
Assuming that the appeal went through and the judgment was affirmed, you're talking about non mutual offensive collateral estoppel, which is something courts are often reluctant to enforce because it encourages such devious strategic behavior on the part of plaintiffs' lawyers. Strictly speaking, there is
issue preclusion in the second plaintiff's case, and there is no
claim preclusion. However, if a court wasn't comfortable leaving the defendant vulnerable to potentially innumerable lawsuits going forward, it could claim that the second plaintiff was required to have intervened in the first suit if it wanted its piece of the pie and it opted not to, so it's not precluded from bringing this claim.