Civil Procedure Class Notes 12/3/03

Res judicata broadly includes claim preclusion, or true res judicata, and also issue preclusion, or collateral estoppel. The easy thing to do is to call the whole thing preclusion and call the sub-things claim preclusion and issue preclusion.

Claim preclusion looks at whole claims, while issue preclusion looks at portions of a claim where issues of law or fact have already been determined; those issues are then binding on the parties in future litigation.

Let’s say we have an accident. Fairman sues Wines for negligence and the jury finds for Wines. Wines wins on the merits. Fairman decides to go to federal court and sues Wines again. It will be judgment for Wines again! Why? The claim has been done already! This is so simple that people don’t even try it.

What if Fairman wins in the first case, and thus he’s won on the merits. What if he goes to federal court and files the same lawsuit again to see if he can get more money? Wines must win the second lawsuit because Fairman’s already gotten all that he can get. He only gets one bite at the apple. That’s the easy case.

Frier v. City of Vandalia

Here we have a somewhat more interesting case. Frier parked his car on a narrow street and forced people to drive onto someone else’s lawn. He did this with a bunch of cars. Crappy cars! What does the city do? They just wanted the alleyway cleared, they didn’t really want to hassle Charlie Frier. Instead of being happy with this treatment, Frier sues the hell out of them!

First, he sues for replevin in Illinois state court. We’ve seen replevin before in Fuentes. Frier loses this case on the merits. The city was found to be justified in what they did.

Frier sues the city in federal court under § 1983, which is where many civil rights sues arise. This lawsuit gets dismissed for failure to state a claim (which was wrong, actually). That’s a Rule 12(b)(6) motion! Why is it wrong? The Court of Appeals says that it should have been summary judgment and not this type of dismissal. The court can’t look at a transcript when it’s dealing with a 12(b) motion. Those motions have to be resolved on the pleadings. If the court looks at other stuff, the court should convert the motion to a summary judgment motion. The result is the same, it’s just that the district court judge uses the wrong procedure.

What law applies here? 28 U.S.C. § 1738 says judicial proceedings have full faith and credit. State court judgments have to be credited in federal court.

Why don’t we look at the federal common law of claim preclusion? Isn’t this an Erie thing? We look to Illinois law to see if the second lawsuit is precluded. Wright tells us that state court judgments have the same preclusive effect in federal court that it would have had in the state that entered that judgment. This rule is pieced together from § 1738 and also Supreme Court interpretation like in Allen v. McCurry, which flat out tells us that we use the preclusion effect of the state court judgments of the state when the judgment was entered. It’s an Erie-type doctrine. But this isn’t a diversity action, so it’s not really Erie.

So we shall use Illinois preclusion law. What does Illinois tell us about preclusion? It says that there is preclusion when parties and causes of action are identical. How can we tell if the causes of action are identical? They’re identical if they would be supported by the same evidence, or the same “common core of operative facts” (c.f. Gibbs kinda).

We had a replevin action. The replevin requires proof that property was taken without “lawful process”. What evidence would we need to prove that? We need to prove that Frier owned the cars (that’s easy). We also need to prove that the city didn’t offer an adequate process or hearing.

But what do we need to prove in the § 1983 case? We want to prove that the city deprived Frier of his property without due process. Isn’t it the very same evidence? We show he owned the cars, and we show that the city didn’t offer adequate pre- or post-deprivation process.

Easterbrook says: the federal claim is precluded because it rests on the same evidence as the already decided case!

Here’s a tricky fact. There were four cars towed, but the replevin only dealt with two, while the § 1983 action dealt with all four. Does that matter? No, because we turn to Illinois law, which says that if you’ve litigated a subset of all the available disputes, the rest will be precluded. In other states, there is a transactional test. Some states wouldn’t have applied the same symmetry. In Illinois, however, it didn’t make a difference.

Illinois preclusion law versus the Restatement

What’s Swygert’s problem? Why doesn’t he agree? He concurs. He disagrees with the application of Illinois that the majority uses. He says that Illinois law doesn’t use the Restatement transactional test. That test bars claims based on transactional analysis: a series of occurrences. Even if you have other legal theories or remedies, you can’t take another bite at the apple. It’s not whether the causes of actions are the same precisely, it’s whether they rest on the same “building blocks”.

What would Frier need to prove in the replevin action that he didn’t have to prove in the constitutional action? Swygert says that in the replevin action, he has to give proof whether he was parked legally. However, in the constitutional action, it doesn’t matter whether he’s parked illegally. You can be as illegally parked as you want to be. If you’re arguing that there must be some process before they take your car, it doesn’t matter whether you are legally or illegally parked!

The policy behind claim preclusion

How can you justify barring the “relitigation” of a claim that was never actually litigated? What’s the policy reason? Could Frier have raised his constitutional argument in the first state lawsuit? Sure!

The plaintiff is the master of his own complaint. He could have brought his claims all together if he wanted, but he didn’t. It’s his own fault that he doesn’t get his day in court! It’s all about efficiency!!!

What if the plaintiff couldn’t bring the other cause of action in the first lawsuit? Should there be preclusion? No! If you can’t bring all your claims together, you shouldn’t be penalized for not doing it.

Say Frier is limited to seeking $15,000 in his first suit. Can he bring a second civil rights suit for $1,000,000 and not have it precluded? He can’t bring both claims to municipal court. But why didn’t he just bring both claims to a different court? He shoulda! We will preclude him! The plaintiff had a choice here. It’s not that the municipal court doesn’t provide him complete relief, it’s that the plaintiff had a choice of which court to go to.

What if there’s a special replevin statute that requires that replevin actions be litigated on a special fast track in a “replevin court”? Is the second civil rights suit precluded? No way! If you’re forced initially into a forum that won’t let you bring all your claims, then you shouldn’t be barred from bringing them later. The difference between the two cases is the different between choice and being compelled.

What if we have the facts in Frier, but then Frier sues to get a refund on his property taxes from the city. Is this claim precluded? Nope.

What if Frier brings a third action, alleging that the officer damaged his vestibule when he left a note. Is this claim precluded? No, but the argument could be made from a transactional standpoint that there could be preclusion. But it seems that there is enough “separateness” and enough difference in evidence that is to be used that we will not preclude in this case.

One more! Say one of Frier’s cars is really his wife’s. Say Frier goes through the replevin action. Can the wife sue under § 1983? Is she precluded? Claim preclusion relates to claims filed by parties. She wasn’t a party in the first lawsuit, and thus her lawsuit isn’t barred by claim preclusion. However, there may be an issue preclusion issue…

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