How do you know if its a final judgment?

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How do you know if its a final judgment?

Postby AShane » Wed Dec 04, 2013 12:40 pm

In terms of res judicata and collateral estoppel- how do you know when something is a final or non-final judgment?

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Re: How do you know if its a final judgment?

Postby ggocat » Wed Dec 04, 2013 1:19 pm

Take a look at section 13 of the Restatement (Second) of Judgments and the comments in particular.


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Re: How do you know if its a final judgment?

Postby bdm261 » Wed Dec 04, 2013 1:40 pm

sorry for crappy format but this is my checklist:

E) Is it an identical issue of law or fact?
1) 3 factors:
(a) Is it a legal or factual issue?
(b) Is it identical substantively and procedurally?
(c) Burden of persuasion
(i) i.e., was there a lower burden of persuasion the first time issue was raised (if so, maybe ok to bring again)
(ii) i.e., if clear and convincing evidence the first time, don’t get another shot.
F) Was the issue actually litigated and determined?
1) General jury verdict: Might have been a bunch of issues and jury said “guilty”
(a) Were all issues actually determined?
(b) i.e. played into jury’s decision; if yes – actually litigated; if no - not actually looked at and determined.
2) Stipulation of the facts: The parties have agreed upon facts, not preclusive. If one of these facts is at issue, a stipulation will not preclude it because issues were not actually litigated; but in the stipulation parties could agree issues are precluded.
3) Consent order: Claim precluded but not issue precluded. This happens when parties settle and bring settlement to the court for issue and order on settlement. Issues underlying claims are not precluded because they were not litigated.
4) Default judgment: Like in personal jurisdiction contested and defendant doesn’t show up. Claim precluded but not issue precluded because not decided.
G) Was the determination essential to the judgment?
1) If it weren’t essential, parties wouldn’t argue very hard about it.
2) Alternative, independent grounds for decision: The court could have decided the case on one of two grounds but did not say which one.
(a) First Restatement: Both grounds are precluded in second litigation, even one “non-essential to judgment.”
(i) Exception: Case is appealed and Appeals Court only affirms one count.
(b) Second Restatement: Neither issues precluded unless one of the issues is appealed and affirmed.
(i) Rationale: If either one of the issues is enough to decide first case, it could be the situation where the judge found one of them and decided to lump it all together.
o i.e., Defendant guilty on Reason A so other issue thrown in too.
H) Were the cases between the same parties?
1) Privity:
(a) Beneficiary and Trustee – Privity, beneficiaries can’t sue again.
(b) Heirs and Executors
(c) Class Actions
(d) Guardian Suits (minors)
2) Majority Rule: Non-mutual issue preclusion.
(a) Can use non-mutual issue preclusion if the victim was in the first suit and it is fair to preclude the issue, i.e. victim had full and fair opportunity to litigate and lost.
(i) Can’t use if victim won in first case and tries to bring same issue against another party because new party didn’t have opportunity to defend in first case.
(b) Minority of states: Mutuality is required for issue preclusion. Mutuality = same parties.
3) Defensive and Offensive Use of Collateral Estoppel
(a) Defensive use of collateral estoppel: Means a plaintiff is estopped from asserting a claim and they lost against another defendant, means plaintiff tried and lost and cannot try again.
(b) Offensive use of collateral estoppel: Not accepted by all courts. When a plaintiff is seeking to estop a defendant from relitigating the issues in 2nd case, which the defendant previously litigated and lost against another plaintiff.
(i) Plaintiff will adopt a “wait-and-see” approach if another Plaintiff’s action results in a favorable judgment.
o Some courts say no because π was just waiting.
(ii) When is it fair to allow offensive use of collateral estoppel?
o Some states only allow defensive; the rest and federal courts will allow it “when it’s fair.”
o If π could have easily became a part of the first case – not fair. Where there are existing, inconsistent judgments on the issue, i.e. ∆ wins 2 times and loses 3 times.
o If the first suit had damages for small amount and second suit has much greater damages – not fair to preclude defendant from relitigating issue, also could ∆ foresee second suit?
o Procedural opportunities not available in first case but are available in second – i.e. discovery?
o Was the first case a jury compromise (not really litigated), then not precluded.
o Newly discovered evidence not available during first case which would change outcome.
(iii) Offensive Issue Preclusion CANNOT be used against the United States
(c) Would be a “super-precedent” because the U.S. is one big entity.
I) Was there a valid and final judgment in the first suit?
1) Same as in Claim Preclusion?
2) Did the case end?
J) Did the parties have a full and fair opportunity to litigate?
1) First claim, small dollar amount?
2) Different or less procedure in the first suit?
3) Wait-and-see plaintiff?
4) Existing, different judgments?
5) Fraud or unfairness in first suit?
6) Newly discovered, critical evidence?
K) Strategic Use of Issue Preclusion
1) Collateral estoppel may be used either defensively or offensively; mutually or non-mutually.
(a) Defensive Mutual Collateral Estoppel
(i) Used against the plaintiff from the first suit regarding issue(s) that were previously litigated against the defendant from the first suit.
(b) Defensive Non-Mutual Collateral Estoppel
(i) Used by a new defendant in a subsequent suit who wants to assert a final judgment on an issue(s) against the plaintiff from the first suit
(c) Offensive Mutual Collateral Estoppel
(i) Used against the defendant from the first suit by the plaintiff (from the first suit) in a subsequent suit thereby preventing relitigation on an issue already decided
(d) Offensive Non-Mutual Collateral Estoppel
(i) Used by a new plaintiff in a subsequent suit who wants to assert a final judgment on an issue(s) against the defendant from the first suit
(ii) Court employs 4 "Fairness Factors" from Parklane Hosiery Co., Inc. v. Shore, to determine validity of the Offensive Non-Mutual Collateral Estoppel:
o Could the party trying to assert Collateral Estoppel have intervened in the earlier suit?
o Did defendant have incentive to litigate the first action?
o Are there multiple, prior inconsistent judgments?
o Are there any procedural opportunities available to defendant in the second suit that was not available in the first suit?
2) Collateral estoppel may be avoided as a defense if the claimant did not have a full and fair opportunity to litigate the issue decided by a state court, which means he may file suit in federal court to challenge the adequacy of state procedures.
(a) Note that in this case the plaintiff's suit would be v. the state, not v. the other party in the prior suit.
3) In the U.S., the doctrine of offensive non-mutual collateral estoppel does not extend to the U.S. government; it is limited to private litigants.
L) Collateral Attack and Federal Law of Issue/Claim Preclusion
1) Personal Jurisdiction
(a) Litigated issue of Personal Jurisdiction – 2nd is precluded
(b) Litigated, but did not bring up pers juris – then they waived the issue – 12(b)(2),(g),(h)
(c) Defaulted – Can collaterally attack personal jurisdiction, but can’t attack merits
2) Subject Matter Jurisdiction
(a) Litigated issue of SM jurisdiction – 2nd suit precluded (Durfee)
(b) Litigated, but did not bring up SM jurisdiction and default
(i) Almost always bound by not litigating (Chicot County case)
(ii) There are some exceptions (Kalb case)
(c) Defaulted – Almost always bound by judgment and cannot collaterally attack; exceptions

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Re: How do you know if its a final judgment?

Postby stillwater » Wed Dec 04, 2013 1:41 pm

ggocat wrote:Take a look at section 13 of the Restatement (Second) of Judgments and the comments in particular.

Rest of Judgments is my favorite book. Adventure, intrigue, romance.

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