Civil
Procedure Class Notes
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,
What
test did we see in Frier?
It was a narrower test that used the “common core of operative facts”.
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
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!