Civil Procedure II Outline - Part 23

bbbbb. Why the transactional test

1. The transactional test as the broadest test poses the greatest risk the claim preclusion will anr a later filed action so plaintiffs are likely to combine their cause of action in a single case in jurisdiction that they have adopted.
2. The transactional test also reduces the likelihood of conflict in results and arguably protects the public's image of the justice system most effectively
3. Finally the transactional test does the best job of promoting the interest of fairness to defendants because the test offers the braodest protection agisnt serial lawsuits.

ccccc. Validity of the judgment

1. Historically a judgment was considered invalid and not entitled to claim preclusive effect if the court issuing the judgment lacked personal or subject matter jurisdiction or if the defendant did not receive proper notice of the lawsuit.
   1. There are some limited exceptions
      1. Apply when the defendant responds to the lawsuit and both parties litigate the case without raising jurisdictional problems.
         1. Unless the district court's decision was a manifest abuse of authority or would substantially infringe on the authority of another tribunal.

ddddd. Finality of the judgment

1. A judgment does ont have a preclusive effect until it is final.
   1. Until the court has resolved the matter but a court will not dismiss a claim on reclusion grounds until another court has issued a final judgment. This finality requirement makes sense because among other things there is no concern that a court will enter a judgment that is inconsistent with a prior judgment until a prior judgment actually exists.
      1. The majority of courts, including the federal courts have concluded that a judgment is final for preclusion purpose when the trial court enters a judgment. Even if the losing party may subsequently file a post trial motion such as a motion for a new trial and even if the losing party appeals.
         1. If a judgement is on appeal and the same claim is pending in another court the other court will typically await the completion of the appeal in the original case before determining whether claim preclusion applies.
            1. But if the other courts grants a dismissal on claim preclusion grounds while the appeal of the original judgment is pending and the original judgment is subsequently reversed a party can usually set aside the second courts dismissal by filing a post judgment motion or timely appeal.

eeeee. A judgment on the merits

1. A judgment must also be on the merits for it to have claim preclusive effects. In general courts have interpreted the requirement expansilvy to include on only jury verdicts but summary judgments, judgments as a matter of law and even default judgments.
   1. Exception
      1. A claimant has not had an opportunity to litigate her claim when the court dismissed for lack of subject matter jurisdiction personal jurisdiction or venue. Such dismissal typically occurs before a court has had an opportunity to examine the merits of a claimants contentions and are thus not “on the merits for preclusion purposes.
2. Rule 41b suggest that such dismissals are on the merits at least for purpose of refiling the same action in the same court, but does such a dismal have preclusive effects elsewhere
   1. Although there is some disagreement the trend has been in favor of giving statute of limitations dismissal preclusive effects.
      1. This trend, like the trend in favor of finding judgments to be final even though they are on appeal, reflects the increasingly widespread view that claimants should have fewer opportunities to relitigate claims.
3. Courts today will give preclusive effect to judgments that are not truly final, not really on the merits and not valid.

fffff. Exceptions on Claim Preclusion

1. Even when all of the elements of the claim preclusion doctrine are satisfied courts will nevertheless refuse to apply the doctrine when
   1. The parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendants has acquiesced therein
   2. The court in the first action has expressly reserved the plaintiff's right to maintain the second action or
   3. The plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitation on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief or
   4. The judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme or it is the sense of the scheme that the plaintiff should be permitted to split his claim
   5. For reasons of substantive policy in a case involving a continuation recurrent wrong the plaintiff is given an option to sue once for the trial harm both past and prospective or to sue for time to time for the damages incurred to the date of suit and chooses the latter course or
   6. It clearly and convincingly shows that the policies favoring preclusion of a second action over for an extraordinary reason such as the apparent invalidity of a continuing restrain or condition having a vital relation to person liberty or the failure of the prior litigation to yield a coherent dispoint of the controversy.

ggggg. Claim Preclusion Summary of Basic Principles

1. Claim preclusion is an affirmative defense so if the defense is not raised in the manner specified in rule 8c most courts will consider it to be waived.