Civil Procedure Class Notes 12/2/03


The exam is three hours and will consist of three essay questions (factual patterns) on real cases.  There will be a personal jurisdiction question, a subject matter jurisdiction question, and an Erie question among the three.  Then there will be “sub-questions” to cover other stuff in the course.  The bulk of the questions, though, will be those big three topics which we spent the most time on.


The exam will be at 9 AM on Friday, December 19th.  We have three rooms!  Including this room.  Meet here.  For computer takers, stay or go to 351.


You may bring your casebook, your rule book, your notes and your outline.


You may not have other stuff.  You can use a CD-R instead of a floppy disk.


Quick review of yesterday


We talked about the difference between summary judgment and JNOV.  The legal standard is the same, but the key difference is when they are brought up.  The purpose is the same: to remove the case from the jury based on the absence of fact.


So we’ve gone through to the trial stage.  The last thing to consider (other than appeals) is the result of a trial.  That’s…


Preclusion – Rush v. City of Maple Heights


It’s an Ohio case!  What’s happening?  The plaintiff owned a motorcycle and her husband was driving it.  They hit a pothole and the plaintiff fell off and got hurt and the bike was damaged.  We have injuries to the plaintiff and damage to the motorcycle from hitting the pothole while she was riding on the back of the motorcycle.


There are two separate lawsuits: there’s a negligence claim for the damage to the motorcycle, filed in municipal court.  That court gives her $100 and also makes certain conclusions of law.  You often ask the judge to give you a document listing the findings of fact and conclusions of law of the case for the purposes of appeal and preclusion.


The court says that the city had actual notice of the pothole, that they were negligent in not repairing the road, and that the city’s negligence was the proximate cause of the accident.


Now she files another suit in another court for her personal injuries.  What does the plaintiff want the second court to do with the findings of the first case?  She wants the second court to say that the issues of notice, negligence, and proximate cause have already been litigated.


On the other hand, the city also wants a preclusive effect.  They want the whole claim precluded!  They argue that the plaintiff should have filed both claims together because they came out of the same event.  “We’ve already had this trial, and you’ve won your $100!  You could have brought your claim for personal injury, but didn’t, and now it’s too late!”  Both sides are asking for preclusion, but they’re asking for different types…all in the same case!


What does the court do?  It uses issue preclusion and says that there’s no need to go back over the facts or the law.  They figure that they only need to do a trial on damages, where the jury gives $12,000 to the plaintiff.


Claim preclusion versus issue preclusion


Claim preclusion is also known as “res judicata” and issue preclusion is also known as “collateral estoppel”.  We will call all this stuff preclusion.  That’s the new and better term for these things.  But some courts will say res judicata, which will sometimes mean claim preclusion in particular, but may mean preclusion in general.


Preclusion prevents two bites at the apple.  Preclusion tries to say that certain things are done with, they’re final, and we’re not going to go back and revisit those issues.


Claim preclusion forbids a party from relitigating a claim that should have been raised in former litigation.  If a claim comes out of the same “nucleus of operative facts”, for efficiency reasons, we want people to bring all the claims at one time.


Issue preclusion is when an issue of fact or law is actually litigated and determined by a valid judgment such that the determination is conclusive in a subsequent action between the parties, whether on the same or different claims.  Same deal: why waste our resources finding out the answer to a question again when the question has already been answered?


Claim and issue preclusion both talk about parties.  Claim preclusion is claim-specific, while issue preclusion is specific to issues of law or fact.  Claim preclusion deals with things that should have been brought up, but weren’t, while issue preclusion deals with things that have been actually litigated.  Make sure you correctly classify the type of preclusion that’s going on!


The lower courts decided this case based on what was the settled law of Ohio at the time.  The case was framed as a preclusion issue: does Rush have one cause of action or two separate causes of action?


The Ohio Supreme Court reviews Vasu, which illustrates preclusion in Ohio law.  At the time, there was plain vanilla claim preclusion, or so it seemed.    The court uses res judicata as a synonym for claim preclusion.  But the weird thing is that personal injuries and property injuries are taken to be two separate causes of action, subject to the limitation of issue preclusion (AKA collateral estoppel).  Then it states the regular old issue preclusion.


What do we do about issues related to both persons and property suffered by the same person?  The law of Vasu was clear: you have two causes of action: one for your property and one for your personal injuries.  What the lower court did was exactly correct based on the law as it was at the time.


But now the Ohio Supreme Court reverses this rule!  Ohio had been following an old view of the law, and the Supreme Court says that it’s not two causes of action, but rather a single cause of action with two types of damages.  For purposes of procedure and preclusion, Rush should have put all her claims in one suit.  Why would the court want you to do that?  It’s more efficient and it’s cheaper.  Notice that the city must defend itself twice in this case.


Is there another reason defendants might want to have all the cases together?  What was at risk in the first lawsuit?  Just the motorcycle.  It was a small kind of damages.  Does this suggest a different litigation strategy than you would use in a personal injury claim?  Sure.  You wouldn’t pay as much attention to a $100 claim than you would to a $12,000 claim.  If you allow piecemeal claims, you send out bad incentives.  If you put it all together, the defendant can better protect all its interests by having them litigated in one lawsuit.


The preclusion doctrine is justified by weighing our big factors of efficiency and equity.  We avoid inefficient extra litigation, and we also avoid unfairness to defendants in making them defend too damn many lawsuits.


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