DETERMINE IF CLAIM OTHERWISE Issue Preclusion [Collateral first case? Claim Preclusion [Res Judicata] PRECLUDED BY 13a - if a counterclaim Estoppel] 2. Is the second lawsuit litigating the same arose out of the same transaction or issue of law or fact? occurrence that was the subject matter [Civil v. Criminal - not same issue] of the opposing party's claim in the first suit, the counterclaim MUST have been brought in the first suit or it is forfeited - cannot bring it in 2nd suit. BUT - generally this rule doesn't apply Issue actually litigated & determined? Issue essential to the judgment? Would a before other party pleads [Martino]. -Issue must have been raised & different decision on the issue changed the Is the same P filing suit against the same D? -Must be in the same position. Preclusion won't determined [v. " should have" in CP] outcome? apply if they switched positions. BUT - while -Where verdict is supported by 2 independent preclusion may not bar former D from suing P, theories either could support judgment by itself claim still may be prohibited under 13 [a] PROCEDURE - Raise as affirmative cannot know which judgment was based on - not compulsory counterclaim. defense (8c) & move for summary precluded [Parks] judgment. MUST assert it or it is WAIVED. No Exact same parties Not exact same parties Was the party estoppel is being asserted Does a non-party preclusion exception apply [same parties or those in against a party to the first case? privity? Can't preclude an issue against a party not in the -Parties in privity with one another are so closely identified they represent the Is the claim in suit 2 the same as suit 1? If not, first suit - must have a chance to be heard! same legal right might & should the claim have been litigated -Non-party suceeds a party's interest [e.g. purchase of property] the first time? -Non-party controlled original suit [e.g. sole shareholder & his company] Test - does the claim in the 2nd suit arise out of -Non-party adequately represented in another suit by person with same interests the same transaction or occurrence as the claim in - must have express or implied legal relationship, parties to suit accountable to the 1st lawsuit? Exact Party nonparties. - Claim in 2nd must have been a claim at time of 1st suit & must have been able to be joined. Yes - Balancing test [Heaney] - effiency to judicial D was in system/fairness to D vs. providing forum for just P was in first case litigation for every aggrieved party's claim - Exact same parties first case feasible to join? Compelling reasons not to [writ v. damages]? Offensive Estoppel - Defensive Estoppel - P1 -> D & judgment for P [D was negligent]; P2 -> If P & D were both in the first case - P sues D1 and loses [P was negligent]. P D trying to use that judgment to say the issue has Final judgment on the merits? mutual estoppel - always permitted. sues D2, D attempts to preclude P from been litigated. -FRCP 41[b] - all judgments on the merits unless - Issue precluded. re-litigating that issue previously litigated -Occurs when D has previously lost an issue - i.e. - Dismissal for lack of venue, lack of PJ, failure to & lost against another D. negligence found against D in earlier case, second join party under R19 -Occurs when P previously lost the issue. P can sometimes assert issue preclusion via OCE. - Court says "not on the merits" -Let's P relitigate by merely "switching - Dismissed without prejudice adversaries" - bad - want to incentivize P - Probably lack of SMJ - Gargello to join all Ds in 1st suit - 12b6 IS on the merits! Can be precluded even if - Can be in appeals process - just need final 1738 - Full Faith & interferes with right to judgment Credit jury trial [1st suit equity, " OCE is permissible as long as it is fair." -Consent judgments on merits - need conclusions - If a claim or issue was 2nd damages] - not as Four Fairness Factors - of law & findings of fact [Martino] decided in a federal or worried about jury if 1. Incentives - did D have incentive to vigorously litigate 1st suit? i.e. maybe small damages, more state court & is then money [more with suits not foreseeable. brought a second time injunction] & just need 2. Procedure - was the opportunity to litigate as in another judicial issue decided by Permitted - P has had a chance broad as before? Forum ? maybe party didn?t system, the preclusion appropriate litigation. to be heard. have chance to call as many witnesses, etc. law from the 1st D worried about 3. Could P have easily joined the 1st suit? If yes, CLAIM IS PRECLUDED. jurisdiction to enter inconsistent judgments likely unfair - P cannot wait around hoping for a favorable judgment. judgment applies. can move to consolidate 4. Would there be inconsistent outcomes? If yes, under 42b. likely unfair - don't want P shopping around choosing the judgment P likes best.
Bernard Damsky, Olga Damsky and Henry Birns v. Honorable Joseph C. Zavatt, United States District Judge For The Eastern District of New York, 289 F.2d 46, 2d Cir. (1961)