Civil Procedure Class Notes 12/8/03


I have volunteered to take the evaluations to the Dean’s Office.  So there you go.


Tomorrow, Fairman will sum up all of Civil Procedure in one day!


Issue preclusion


In Rush, the city wanted claim preclusion, while Lenore wanted issue preclusion.  It’s issue preclusion that we will move into today.


What’s the issue of issue preclusion?  There are two parts to an issue.  An issue consists of (1) the legal and factual proposition (like negligence, breach, theft, etc.) and (2) the procedural setting, including burdens of proof and access to information.  That second prong is often overlooked.


If the procedural setting doesn’t provide similar sorts of protections, then issue preclusion, in general, won’t apply even if it’s an identical factual situation being litigated.


Say the government wants to prosecution an IRS agent for theft.  Let’s say the government starts with a criminal action, and the end result is an acquittal.  Can the government then turn around and, in a civil action, sue the IRS agent for recovery of the money, or is there preclusion?  What would make the procedural setting so critically different that there would not be preclusion?  Why can the government sue the guy in a civil action?  The burden of proof in a criminal court is way different than in the civil system.  Acquittal in criminal court doesn’t mean very much factually when you look at it in civil court.  The burden of proof in civil court is simply “preponderance of the evidence”.


What if we take the same situation, except we do the civil action first and the government wins.  What’s the effect on a subsequent criminal trial?  Is there preclusion?  No!  You need a higher burden of proof in the criminal court, so you have to try the issue over again.


Something must be precluded, though.  What if we convict the guy in criminal court?  Then in civil court, we’ve already shown by a preponderance of the evidence that he dunnit.  This is where issue preclusion comes in.  The government will use issue preclusion so that it doesn’t have to relitigate the issue of theft.


Illinois Central Gulf Railroad v. Parks


Bertha and Jessie were in a car when Jessie was driving and they collided with a train.  They sue!!!  Bertha wants compensation for her personal injuries while Jessie wants loss of consortium damages.  Bertha gets $30,000, but Jessie gets the big nothing.  The goose egg.


What does this mean in terms of preclusion?  What does Jessie do?  He files his own lawsuit against the railroad.  His allegation is that he himself was injured in the accident.  But is this claim precluded, or is some part of it precluded?


What does the district court say?  The claim isn’t precluded.


This case introduces more archaic language.  This court calls claim preclusion “estoppel by judgment” and they call issue preclusion “estoppel by verdict”.


Why is there no claim preclusion?  Under the Restatement, if we use a transactional analysis, the claim would be precluded.  However, Indiana doesn’t use the Restatement formulation.


What test did we see in Frier?  It was a narrower test that used the “common core of operative facts”.


Indiana has a different type of tort law at this time that described the “loss of consortium” claim as a “subset” of Bertha’s claim rather than as a portion of Jesse’s claim.  This suit would be claim-precluded in most jurisdictions!


In issue preclusion, one of the main things you have to be able to discern is what has actually been litigated.  If you don’t know what has actually been litigated, you don’t know just exactly what has been precluded.


So in the first lawsuit, what did the goose egg for Jessie really mean?  What is it likely that the zero damages meant under these facts?  It might have meant that the jury thought that Jessie was contributorily negligent, or the jury might have thought that Jessie wasn’t contributorily negligent but that he suffered no actual damages.


Let’s say Alice sues Bob for negligence.  Bob’s defense is that Alice was contributorily negligent.  We get a general verdict for Bob, but we don’t know what that means except for that he wins the lawsuit.  Let’s say there’s no compulsory counterclaim rule and Bob sues Alice for personal injuries.  Could there be issue preclusion here?  Nope, for the same reason as in Illinois Central.


What if, in a bench trial, the court found that Jessie was contributorily negligent and Jessie has no damages.  Aha!  Now we have specificity.  How will this play out?  It depends on which Restatement of Judgments the jurisdiction follows.


In a bizarre shift, the first Restatement says that all litigated and decided issues are precluded from relitigation.  However, the second Restatement says that no issues are precluded if the judgment rests on alternative grounds.  The shift has to do with the dynamics of litigation.  When a court issues grounds of alternative rulings, it can sometimes be a “CYA” opinion, and it’s less likely that all of those grounds are sustainable.  For this reason, the second Restatement will preclude all of them.


Let’s say an appellate court upholds both findings of fact from the trial court.  Then both issues are precluded from future litigation.  If the court upholds only one finding, then only that issue is precluded.  If the appellate court upholds one issue but doesn’t reach the other one, it can only preclude the first.


Ruhrgas v. Marathon was the last case Professor Wright argued before the Supreme Court.  If the federal district court grants a motion to dismiss for lack of subject matter jurisdiction (but doesn’t reach the issue of personal jurisdiction), could the plaintiff file his case in state court?  Sure.  Why no preclusion?  The issues are radically different between the issues of subject matter jurisdiction in the federal courts and general jurisdiction in the state courts.


What if the federal district court dismisses for lack of personal jurisdiction?  Would there be preclusion there?  What was litigated as to personal jurisdiction?  It’s the defendant’s contacts with the forum and the fair play five, or maybe the long-arm statute.  Would personal jurisdiction in federal court be decided any differently than in a state court?  No!  There’s 100% symmetry of the issues.  This is the best example of preclusion in terms of the stuff we’ve looked at.  You’ve had a chance to argue personal jurisdiction in the federal court, and you’ve lost!  You don’t get another chance to argue personal jurisdiction in state court!


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