I.

Beginning of Trial Procedures:

1. Should There Be A Jury Trial?
Law (jury trial) v. Equity (no jury trial), ejectment and replevin are jury trial exceptions
Rules: (7th Amendment, Rule 38, Beacon Theaters Rule, also see Rule 39)
7th Amendment: Right to jury trial in: (1) common law suits, (2) at least $20; this is only
a right in federal courts due to Rule 38 and state courts may not give this right
Rule 38(a): Preserves 7th Amendment right to jury trial
Rule 38(b): Request must be (1) served (2) no later than 14 days after service of last
pleading on the issue, AND (3) filed per Rule 5(d).
Rule 38(c): Party must specify issues for which jury is requested in its demand or else all
Rule 38(d): Party waives jury trial if not properly demanded
Beacon Theaters Rule: If you have claims under both equity and law, try the legal claims
first- the jury's decision becomes factual in equity determination.
Also see Rule 39: A court can, on its own, use an advisory jury or allow a jury later on
Cases: (Chauffeurs, Teamsters, Helpers; Amoco v. Torcomian)
Chauffeurs (when not clear if law or equity): First determine which action it most
clearly resembles and Second determine type of relief requested and available.
Amoco (when both equitable and legal claims in same action): (1) Federal procedural
rules of whether jury trial is allowed are used in diversity actions in federal court. (2) An
equitable claim cannot preclude a jury trial on a compulsory counterclaim. (3) Beacon
Theaters v. Westover rule (see above).
Directed Verdict Rule (Amoco v. Torcomian): If a Directed Verdict would have been
rendered against the party who deserved a jury trial but didn't get one, then the error is
harmless and should not be reversed on appeal.
2. Is the Jury Fair and Impartial?
Jury Pool (eligible)Venire (summoned)Voir Dere (questioned)Petit Jurors (at trial)
28 U.S.C. 1861 (main rule): Shall have the right to petit juries selected at random from
a fair cross section of the community in the district where the court convenes.
Fair Cross Section: Applies to things like race, religion, sex, color, national origin,
economic status, and not things like school status (college kids v. employed people).
Rule 47 allows for (a) examining prospective jurors, (b) preemptory challenges per 28
U.S.C. 1870, and (c) court may excuse for cause.
If there is suspicion that a juror should be excused for cause, it is the courts duty to
inquire into whether the jury will be impartial and if not, strike for cause. (Thompson)
Rules: (28 U.S.C. 1867(c), 28 U.S.C. 1870, also see 28 U.S.C. 1863-1864, 1866)
1867(c): Challenge to jury selection must be made by motion before voir dire
questioning begins or within 7 days of discovering reason, the earlier of the 2.
1867(d): Court will stay proceedings and if error is found, will be reselected to conform
1870: 3 peremptory challenges, more may be allowed by court, and unlimited
challenges for cause brought by anyone but dismissal only upon permission of the court
1866(c): Reasons for dismissing jurors (i.e. hardship, peremptory, or for cause)
Also see 1863-1864, 1866: manner in which federal courts create cross-sections and
narrow down the jury from the Jury Pool to the Petit Jury.
Jury Instruction is a way of judge controlling jury. Juries rule on the facts, not law, but
they are often intertwined. Judges may comment on evidence, but rarely do. (Rule 51)
Jury Deliberations cannot be inquired into, and only evidence at trial may be used.
3. Is the Judge Fair and Impartial?
A judge may be recused at (1) request of a party ( 144) or (2) on their own ( 455)
Judges should not comment on cases, it may require recusal (Boston Childrens 1st)
Rules: (28 U.S.C. 144, 28 U.S.C. 455)
 144: Party files affidavit that judge has prejudice. Affidavit must: (1) support the bias;
(2) must be filed no more than 10 days before beginning of proceedings unless good
cause for delay; (3) can only be filed once by a party; (4) be made in good faith.
455(a): Judge should recuse himself if his impartiality may reasonably be questioned
455(b): Lists specific circumstances that require recusal (i.e. additional personal
knowledge, association as a lawyer in the matter, participated as witness or lawyer, has
family with interest in matter or has interest in matter himself, or 3 degrees of separation)
455(e): Reasons in 455(a) may be waived after full disclosure by agreement of parties
but reasons in 455(b) cannot be waived.

II. Corrections to Mistakes at Trial:

1. Judgment as a Matter of Law.
Rule 50: The standard is if a reasonable jury would not have legally sufficient
evidentiary basis to find for the party on the issue
Rule 50(a): Must be made by motion after a party has been fully heard on the issue
but before the case is submitted to the jury. Must state and support judgment requested.
Rule 50(b): Motion may be renewed within 10 days after judgment and may include a
motion for new trial. Court may allow verdict judgment, order new trial, or direct verdict
Rule 50(c): If court grants Renewed Directed Verdict, it must rule on any new trial
motion and conditionally grant or deny. Conditional New Trial does not affect finality.
Rule 50(d): New Trial motion after directed verdict must be filed within 10 or 28 days.
Must be genuine issue of material fact for jury to decide on rather than opinion. (PA RR)
Must first move for Directed Verdict Rule 50(a) to later move for JNOV Rule 50(b)
2. New Trial.
New Trial can be granted on motion or ordered by court within 28 days of judgment
Rule 59(a): Court may grant new trial on motion on all or some of the issues, either in
equity or at law. If at equity, court may open judgment for additional findings and rule.
Rule 59(b): Motion for new trial must be filed within 28 days of entry of judgment.
Rule 59(c): Deals with new trial being based on affidavits
Rule 59(d): Court can order new trial on its own within 28 day for any reason that could
have been made by motion
Denial of new trial is immediately appealable but the grant of new trial is not until
the new trial concludes because it is not a final judgment. Granted New Trial motion is
appealable only if conditional upon reversal of a Judgment as a Matter of Law.
Reason for New Trial: (1) flawed procedure or (2) flawed verdict (against the evidence)
Standard of Review is abuse of discretion standard
3. Comparison of New Trial and Judgment as a Matter of Law.
The result of a JNOV is a verdict in favor of one of the parties that ends a trial. A grant of
New Trial Motion results in another trial and is inconclusive on the trial and not final.
The most efficient action is to grant JNOV and new trial in the alternative since jury
would rule, judge would rule, and new trial motion is appealable.
New Trial: true miscarriage of justice v. JNOV: reasonable jury could not rule otherwise
4. Relief from Judgment or Order.
Rule 60: used to correct mistakes at trial (i.e. discovered that jury went to crime scene)
Rule 60(a): Court may correct a clerical mistake on its own or by motion, with or
without notice.
Rule 60(b): On motion a court may take back a final judgment for specific reasons, but
you have to show that you did not know and could not have known in time to correct.
Rule 60(b)(6): Gives court discretionary power over this
 Rule 60(c): Motion must be made within reasonable time and no more than 1 year for
(b)(1)(b)(3). The motion does not affect the finality of the judgment.
5. Special Verdict or Verdict with Interrogatories.
Rule 49: Resolves problems of injustice caused by failure of effective jury deliberations.
Special verdicts help explain how the jury reached at its decision because the jury
answers a series of questions on findings of relevant issues that lead to the verdict.

III. Subject Matter Jurisdiction:

Subject matter jurisdiction is whether the court can hear the case in front of it
Courts will dismiss for lack of SMJ per Rule 12(h)(3)
1. Federal Question
Dismissal for lack of SMJ based on Federal Question should be made by 12(b)(6)
and then 12(b)(1) because it may be on the merits if 12(b)(6) is granted.
Consent Decree by a federal court of a settled claim will keep the case in federal court
Rules: (28 U.S.C. 1331, Louisville & Nashville R.R. v. Mottley)
1331: Courts have jurisdiction over federal questions
Louisville v. Mottley: Cause of action as stated in the well pleaded complaint must
arise out of federal law and is not always taken at face value.
2. Diversity Jurisdiction
Dismissal for lack of SMJ based on Diversity should be made under 12(b)(1)
Complete Diversity is Required: ALL of the defendants must be from the different
states than any of the plaintiffs.
Rules: (28 U.S.C. 1332, Redner v. Sanders)
1332(a): Diversity Jurisdiction is proper where $75,000+ and:
(a)(1): Citizens of different states (NY v. CA)
(a)(2): State v. Foreign State (NY v. Japan OR Japan v. NY)
(a)(3): State & Foreign State v. State v. Foreign State (NY & Japan v. CA & China)
State & Foreign State v. State (NY & Japan v. CA OR CA v. NY & Japan)
NOT: State & Foreign State v. Foreign State (NY & Japan v. China)
1332(c): Corporations are citizens of state of incorporation or principal place of business
Redner v. Sanders: Citizenship requires Citizenship + Domicile (intent to remain)
3. Supplemental Jurisdiction (Over Claims That Belong In State Court)
Rules: (28 U.S.C. 1367, In Re Ameriquest)
1367(a): For federal question, must be same case or controversy under Article III
1367(b): For diversity jurisdiction, must not break diversity under 1332
1367(c): Factors that may not allow supplemental jurisdiction under 1367
In Re Ameriquest: Loose factual connection may be sufficient as long as the facts are
common and operative
4. Removal (From State To Federal Court)
A defendant has the sole power to remove the case from state court to federal court. The
plaintiff cannot oppose the motion since it is automatic upon the filing of the removal.
Rules: (28 U.S.C. 1441, 28 U.S.C. 1446, Caterpillar, Inc. v. Lewis)
1441: Automatically removed upon filing notice of removal where:
(a) Defendant can remove to federal court within the district where action is pending as
long as federal court has original jurisdiction.
(b) Claims based on federal question are always removable but diversity are only
removable if none of defendants are citizens of state where action is brought
(c) Federal court may accept claims with supplemental jurisdiction or remand them
(j) Lack of jurisdiction in state court does not matter if action is removed
 1446: Removal procedure and timing of 30 days after service on defendant or after
reason for removal comes about, but no more than 1 year from beginning of action.
Caterpillar v. Lewis: If district court failed to remand a case improperly removed, it is
not fatal to the ensuing adjudication if there is federal jurisdictional at time of judgment
5. Choice of Law (Erie Doctrine of State v. Federal Law)
Goal: Prevent Forum Shopping and Inequitable Administration of the Law
If necessary to apply a states law, Federal courts must apply the whole law of the state
where the action occurred, including that state's common law, not just its statutory law.
If jurisdiction is based in Federal QuestionFederal Law and Procedure Governs
If jurisdiction is based on Diversity and state law at issue Erie Analysis Required
Hana v. Plumer: Modern Erie Analysis
1. If there is a Federal Law or FRCP on this issue:
(a) Is the federal law/rule is unconstitutional or illegal statutorily?
(b) Is it contrary to enabling statute: rules shall not abridge, enlarge, or modify any
substantive right
If yes to any of the two apply state law/rule
If no to both apply federal law/rule
2. If there is not Federal Law or FRCP on this issue: Pure Erie Question
(a) Will applying federal common law create inequitable administration of laws?
(b) Will applying federal common law encourage forum shopping?
(c) Is there no countervailing federal interest (Byrd v. Blue Ridge)?
If yes to any of the three apply state law/rule
If no to all three apply federal common law
Erie Rule Restated (to double check):
(1) If (1) FRCP/Federal Statute exists and (2) is in conflict with state law and (3) there is
Diversity Jurisdiction: apply the federal rule, unless it violates the Rules Enabling Act or
is unconstitutional.
(2) If there is no FRCP or Federal Statute, it becomes a pure Erie question: Does it
encourage forum shopping or would it result in a substantially different outcome? If yes,
use state rule and if no, use the federal common law rule.
Note: If a case is dismissed, and that dismissal acts as an adjudication on the merits, we
follow state law on claim preclusion (Semtek v. Lockheed Martin)

IV. Personal Jurisdiction:

Personal Jurisdiction is waived if not raised because justice should be served equally
Full Faith and Credit Clause (28 U.S.C. 1738) any valid judgments in one state
are applicable and enforceable by courts in any other states (note that the judgment
being valid means that the court that issued the judgment had jurisdiction).
General v. Specific Jurisdiction: The distinction is whether there is jurisdiction over
any issues within a state or only over the issue being litigated. Significant contacts test
determines whether there is specific jurisdiction based on contacts with the event but, a
defendants presence in a state may be so great that they are subject to jurisdiction over
any matters within the state even if unrelated to their presence (Intl. Shoe v. Washington)
Jurisdiction can also be based on: Long Arm Statutes, Implied Consent, and Waiver
Filing a suit in a state does not mean that, for the purposes of subsequent lawsuits, that
person submits himself or herself to that state's jurisdiction as a defendant.
1. Must Satisfy the Long Arm Statute (For Out of State Residents/Corporations)
First always is the question of whether the court is allowed to have jurisdiction over the
defendant. This is shown if defendant is within coverage of states long-arm statute.
 Then issue of whether there is sufficient basis for jurisdiction (i.e. - minimum contacts)
2. General Jurisdiction (Over The Individual/Corporation On All Issues).
Individuals: subject to general jurisdiction in their state of domicile or state of service
(Domicile = Residence + Intent to Remain There; Tag Jurisdiction must be Voluntary)
Corporations: subject to general jurisdiction in state of incorporation or nerve center:
(Operations must be continuous and systematic and significant portion of operations)
Rules: (Intl. Shoe v. Washington, Burnham v. Superior Court, Also see Perkins v.
Benguet Consolidated Mining Co., Also see Helicopteros Nacionales v. Hall)
Intl. Shoe: Sometimes a corporations activities within a state are so substantial as to
justify suit against it on causes of action arising from dealings distinct from its activities.
Burnham: Presence in the jurisdiction is alone enough if there is service upon defendant
within that jurisdiction. This is the tag jurisdiction rule (also see forum non-conveniens)
Perkins: Corporation conducting continuous and systematic operations out of temporary
office (but 100% of business) with no other place for service gives general jurisdiction.
Helicopteros: Although operations may be significant and continuous, if there is another
place to bring the suit that will serve justice, there should be no exception to the rule.
3. Specific Jurisdiction (Over The Issue).
Specific Jurisdiction is determined by whether the defendant has satisfied the minimum
contacts requirement in dealing with the issue of the suit that would allow the state to
exercise jurisdiction over the defendant. Contacts must be sufficient for the specific issue.
Based on minimum contacts test for individuals and for corporations.
Rules: (Intl. Shoe v. Washington min. cont. corp., Shaffer v. Heitner min. cont. ind.,
World Wide Volkswagen v. Woodson purp. avail., Pavloich v. Superior Court - effects)
Intl. Shoe: Defendant corporation must have certain minimum contracts with the state,
the question always being: What are the minimum contacts sufficient for?
Shaffer v. Heitner: Basis of jurisdiction in all cases is determined by Intl. Shoe minimum
contacts test, which must be applied to both corporations and individuals.
World Wide Volkswagen: Minimum contacts require a deliberate act by the corporation
that purposefully availed itself to jurisdiction in that forum. Foreseeability alone is not
enough but must be affirmative conduct (i.e. soliciting business, advertising, shipping)
Pavlovich: Knowledge of possibility of harm centered in one jurisdiction is not alone
enough for purposeful availment to that jurisdiction. Effects Test: intending effects on a
jurisdiction purposefully avails to the jurisdiction. Also, see 3 types of websites on p.119.
4. How to challenge Personal Jurisdiction.
It is better to file a pre-answer motion challenging jurisdiction rather than putting it in
the response to a complaint since the response is due within 20 days of filing unless
service of process is waived, while a pre-answer motion extends that time according to
Rule 12(a)(4) until 10 days after the pre-answer motion is ruled on by the court.
(1) D can default on the original suit by not showing up. Subsequently, when the judgment
is brought for enforcement to a court that has jurisdiction over D, D will be given notice
and will have an opportunity to contest the prior courts judgment on jurisdiction only.
This is the riskiest approach since if contesting jurisdiction fails, D cannot raise any other
defenses. Note: If first judgment is not a default judgment, you can't challenge
jurisdiction when the plaintiff goes to enforce in your state since jurisdiction has already
been adjudicated once (issue preclusion).
(2) D can contest the out of state courts jurisdiction at the onset of the trial. This can be
done either by a pre-answer motion Rule 12(b)(2) or in Ds answer. See Rule 12(h) and
Rule 12(g) for sequence of filing since, failure to file a defense against jurisdiction
constitutes a waiver of the defense. Courts prefer jurisdiction not waived since justice
should be served equally in all courts. State courts allow for a special appearance by D.
 Forum Non-Conveniens: Requests the court to dismiss the case because there is another
forum that will serve the interest of justice more if the case was brought there. Granted at
the courts discretion but courts will not dismiss if there is a problem in filing in the more
convenient forum such as SOL (court may ask the defendant to waive the SOL defense).
Some factors considered in decision on p.166 note 6. This is a dismissal on the merits.
Transfer (28 U.S.C. 1631; 1404 and 1406): Courts can transfer cases to correct
improper or inefficient venue ( 1404 and 1406) or improper or inefficient jurisdiction
( 1631) in the interest of justice. This is not dismissal on the merits.
5. Notice Requirement for Jurisdiction.
Notice is a requirement that the party to the suit be notified of the suit based on the notice
that would be reasonable in the circumstances.
Service Rule is made to give you benefits for waiver (additional time) and costs for not
waiver (expenses incurred), but you cannot use waiver on U.S. or incompetent people.
Rules: (Rule 4, Rule 12(b)(4) (5), Mullane v. Central Hanover Bank & Trust Co.)
Rule 4(d): Waiver of service is preferred by the courts by imposing a duty to avoid
unnecessary expense and providing incentive to do this (see below on waiver)
Rule 4(d)(3): Allows 60 days to file answer from day waiver request was sent (carrot)
Rule 4(d)(5): Waiver of service does not mean that you waive jurisdiction or venue
Rule 4(e): Method of proper service is based on state law or some federal law additions
Rule 4(h): Service on a corporation rules
Rule 4(k): Service and waiver establish jurisdiction over defendant only if (A) there is
general jurisdiction within the state or (B) there is no place of general jurisdiction and it
is not inconsistent with the Constitution.
Rule 4(m): Court dismisses without prejudice after 120 days of filing and not serving
Rule 12(b)(4): Dismissal for insufficient process, meaning what you were served with
wasn't adequate (i.e. - wrong package or crayon marked service).
Rule 12(b)(5): Dismissal for insufficient service of process, meaning you never
received service. You would use this to challenge constructive notice.
Mullane v. Central: Notice does not have to actually notify in all cases but does have to
be reasonably calculated to reach those that could be informed by the means available

V. Venue:
Venue is decided after the issue of jurisdiction is established and determines which
district within the jurisdiction is most appropriate for bringing the action.
Federal Venue Statutes apply only where claim is initially brought in federal court
since states have their own statutes and removal is to the district where the state court is
Improper venue does not lead to dismissal, but rather it leads to the case being
transferred to a different courthouse within the jurisdiction. Rule 12(b)(3) for venue.
28 U.S.C. 1391: (a) for diversity jurisdiction, AND (b) for federal question
Rules: (28 U.S.C. 1391, 28 U.S.C. 1404, 28 U.S.C. 1406)
1391(a): Action where jurisdiction is based on diversity can only be brought:
(1) If all defendants from same state District where any of defendants reside
(2) District where substantial part of the events giving rise to the claim occurred
(3) If not (1) or (2) Any district where defendant subject to personal jurisdiction
1391(b): Action where jurisdiction is based on federal question can only be brought:
(1) If all defendants from same state District where any of defendants reside
(2) District where substantial part of the events giving rise to the claim occurred
(3) If not (1) or (2) Any district where defendant may be found
Note: Found is an Intl. Shoe test for minimum contacts
1391(c): Venue for corporations is anywhere with jurisdiction or significant contacts
 1391(d): An alien defendant can be sued in any judicial district
1404: Court can transfer venue on its own for convenience of the parties or on motion
1406: Court can either dismiss or transfer case filed in the wrong venue

VI. Issue/Claim Preclusion: Claim preclusion and Issue Preclusion are affirmative defenses
under Rule 8(c), so if they are not raised, they are waived. To get a case dismissed on these
grounds, you MUST MOVE FOR SUMMARY JUDGMENT!!! You will need to file the
summary judgment motion and include evidence of the prior trial being adjudication on the
merits. You can also file this as a 12(b)(6) motion, but it is then converted into a summary
judgment motion because there would be evidence attached to it of the prior case. When
evidence is included, the court must treat it as a summary judgment motion per Rule 12(d).
1. Involuntary Dismissal and Waivers in the Rules.
Many rules create situations where failing to raise an issue is considered waiver, which
works in conjunction with claim and issue preclusion to bar subsequent raising it
Rules: (Rule 12(g) and (h), Rule 13(a)(1), Rule 41(b), Rule 42, Rule 12(d))
Rule 12(g) and (h): Only 1 Rule 12 motion is allowed with all issues that need to be
raised included with it. If not included then waived (except for 12(b)(1) and 12(b)(6)).
Rule 13(a)(1): A compulsory counterclaim arising out of the same transaction or
occurrence as the claim must be raised in the pleading or else it is waived.
Rule 41(b): The effect of involuntary dismissal is that it is a judgment on the merits
unless stated otherwise except based on: jurisdiction, venue, or failure to join.
Rule 42: (a) Allows courts to join trials that deal with a specific issue if based on the
same question of fact or law. (b) Allows courts to separate trial into distinct issues.
Rule 12(d) converts any motions that include matters outside of the pleadings into
Summary Judgment Motions. (This is the case for all claim and issue preclusion)
2. Claim Preclusion (Res Judicata).
Claim Preclusion (deals with issues that should and could have been litigated): a final
judgment on a claim is conclusive on all matters that were, could have, and should have
been litigated. The first final judgment is conclusive on all matters that were raised,
and should have been raised that are part of the same transaction or occurrence.
(1) Final judgment (2) on the merits where (3) claim must be same in first and
second suit (operative facts test) and (4) parties must be same in both cases
A Consent Decree (settlement that judge signs) has preclusive effect on future claims
Every Party Gets a Day in Court (Searle Brothers v. Searle)
Rules: (Operative Facts Test Frier v. City of Vandalia, Rule 13(a)(1), 28 U.S.C. 1738)
Operative Facts Test (Frier): If suits are based on a common core of operative facts, a
judgment in the first suit will bar any legal claims that were or could have been litigated
in that suit based on those facts, even if they are based in different legal theories (Note:
even though you need to combine all claims arising out of the same transaction or
occurrence, the court may (per Rule 42(b)) may sever parts of a complaint for trial)
Rule 13(a)(1): A compulsory counterclaim arising out of the same transaction or
occurrence as the claim must be raised in the pleading or else it is lost. This works
with claim preclusion, but only if there has been a pleading. (Martino v. McDonalds)
1738: All court rulings (including whether on the merits or not) must be equally
enforced in all courts (i.e. - federal law gives same preclusive effect as state ruling)
Cases: (Searle Bros. v. Searle, Gargallo v. Merrill Lynch)
Searle Bros. v. Searle: The right to intervene as a party in a prior suit does not bar the
party from a subsequent suit where he did not intervene (everyone gets a day in court).
Gargallo: If a state court renders a judgment and the case is brought to federal court, the
state courts rules determine whether it was a judgment on the merits per 28 USC 1738.
3. Issue Preclusion (Collateral Estoppel).
Issue Preclusion (deals only with issues that were litigated) when there is a judgment
on a specific issue in one case, another cause of action raising the same issue is
already considered to be adjudicated as to that issue, and cant be litigated again.
Offensive Issue Preclusion: When a plaintiff uses issue preclusion to stop defendant
from raising a defense on an issue that has already been decided. Incentive for plaintiff to
wait and see outcome of other cases to use preclusive effect on the defense to their claim.
Defensive Issue Preclusion: When a defendant uses issue preclusion to stop plaintiff
from re-litigating an issue that has already been decided in the defendants favor.
Incentive to join many defendants for benefit of suing once rather than each defendant.
Burden of Proof Matters since criminal trials (beyond reasonable doubt) will have
preclusive effects on civil trials (preponderance) on the issue but not vice versa.
Preponderance is a subset of beyond reasonable doubt because burden of proof is higher.
Jurisdiction Matters since a court ruling on issues of jurisdiction will have different
effects in federal and state court within that district (i.e. subject matter dismissal is
preclusive in only federal but not state but personal is preclusive in both within that state)
Issue Must Actually Be Determined and if it is inconclusive as to which issue is
determined, only the appellate court can give preclusive effect by addressing the issue
specifically or else it is not know which issue should be precluded and properly decided.
Cases: (Illinois Central Gulf Railroad v. Parks, Parklane Hosiery Co. v. Shore, State
Farm Fire v. Century Home Components)
Illinois Central: Only the central issue of a case can have preclusive effect since the issue
is specifically decided to its conclusion, but issues that could have been decided on
multiple grounds are not preclusive unless the ruling is conclusive on the specific ground
(i.e. not showing loss of consortium is not preclusive on issue of negligence for spouse)
Parklane Hosiery: The Supreme Court will not allow offensive issue preclusion where:
(1) Plaintiff could have easily joined the prior action. OR
(2) Defendants did not have a fair opportunity to litigate the case due to:
(a) no incentive to litigate the first suit but more incentive to litigate the subsequent
(b) if the case relied upon is inconsistent with other cases in favor of the defendant
(c) the second case affords the defendant procedural opportunities unavailable in the
first action capable of causing a different result.
Note: This is a discretionary rule that the court can choose to apply
NOTE: A party that has never litigated an issue can never have that issue precluded
against them since it would violate their due process constitutional rights. So:
(1) Offensive issue preclusion can only be used against a party that has already litigated
(2) Defensive issue preclusion can only be used to bar parties that have already litigated
the issue against a defendant before (Generally used when P loses)
State Farm v. Century: Where rulings are inconsistent, collateral estoppel is unfair and it
is a strong indication that it would work an injustice if the defendant re-litigated. The
court has authority under Rule 42 to join and separate claims dealing with a common
issue and court may choose the most representative cases to try first.
Rule 42: (a) Allows courts to join trials that deal with a specific issue if based on the
same question of fact or law. (b) Allows courts to separate trial into distinct issues.
Restatement (Second) of Judgments 29. Issue Preclusion in Subsequent Litigation
Grounds for why issue preclusion may lead to an unfair result include:
(2) Procedural protections available in the forum for the 2nd party that were not for the 1st
(3) Party could have joined in a previous suit (this is to deter waiting for outcome)
(4) Determination inconsistent with another determination on same issue
(6) Party would be prejudiced
(7) Issue is of law and would foreclose possibility of changing the rule
(8) Any other compelling reasons that the party should re-litigate