Issue/Claim Preclusion Question Forum

[MonsterTRM]

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?

[stillwater]

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]

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]

Yes, definitely an 8(c) affirmative defense.

[stillwater]

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]

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.