Preclusion Doctrines
I. Stare Decisis If you dont like SD, then argue the three Ds:
Distinguish, Dictum, dumb.a. Herrera v. Quality PontiacFacts leaves
car unlocked and the keys in the car, car gets stolen and the thief
kills someone. Someones family sues for wrongful death and PI. @ DC
dismiss for failure to state a claim 12(b)(6)
IssueDoes carry any liability to ?
Rule@ time of case: Bouldin Liability only where misconduct can
be reasonably anticipated.
AnalysisAt the time of this case, the thief was an intervening
cause, and therefore not liable. HOWEVER SD can be overturned when:
Precedent is unworkable/Intolerable Parties justifiably relied on
precedent making overturning it a hardship Remnant of an abandoned
doctrine so it needs to be overturned Facts have changed enough to
rob the old rule of justification
ReasoningBouldin is bad law because it is based on facts that
have changed enough as to rob Bouldin of justification and remnant
of abandoned doctrine.
ConclusionBouldin overturned, new law is several liability,
retroactive for this .
i. Retroactive application The law is applied to this case, and
any currently pending case. *This is the assumption in civil
cases.ii. Pure prospective application only applies to conduct that
happens after decisioniii. Selective prospective application pure
prospective application plus the case on appeal.iv. FACTORS:1. Is
this a new principal of law?2. Will retroactive advance or hinder
the purpose of the new rule3. Is prospective necessary to avoid
injustice or hardship?b. Policies Supporting SDi. Judicial
economyii. Fairness/predictabilityiii. Stability of lawc. Notes:i.
SD is findings of law NOT FACTii. Fed cts and state cts cannot bind
each otheriii. Much harder to change Property SD than regular SD
(Super Stare Decisis)iv. SD = shit rolls downhill doctrineII. Law
of the Case decision on an issue of law made at one stage of the
case becomes binding on the successive stages of the case.
(everything decided before an appeal of any type becomes final
after an appeal)a. Rule 63 inability of Judges to proceedi. If a
judge has to stop hearing the case and a new judge steps in the new
judge can review the record and choose to change decisions that are
made by the prior judge as long as the case has not been appealed.
ii. Judges can change earlier non-final rulings that are their own
or a predecessors rulings. b. Trujillo v. City of
AlbuquerqueFactsCombined cases: one for injury by crane and one for
car accident both involved city at . There was a cap. Argument is
that the cap is unconstitutional because it violates EP. Level of
scrutiny: Rational Basis, Intermediate, or strict. Those who are
hurt less than the cap are fully compensated while those hurt more
than the cap are not. *Procedural History: goes to SCNM 3x. This is
the third Case.
IssueWhat level of scrutiny should the courts apply?
RuleAppeal #1 sets scrutiny at Intermediate
AnalysisFirst case picks intermediate scrutiny. Third Case
thinks should have applied RB. So how should RB be applied since
case 1 is now SD?
Reasoning argues that RB is not a fair application because they
have been arguing IS from the beginning. wins because it is
equitable.
ConclusionRB moving forward for constitutional question with
regard to caps.
i. Law of the case is more discretionary/flexible than SDIII.
Res Judicata Case preclusiona. Vocabularyi. Merger When a wins a
final judgment, s claim is merged into the judgmentii. Bar - When
loses, is barred from re-litigating the same claimb. Pleadingi.
Rule 8(c) affirmative defense, must be plead or lostc. Black Letter
Rulei. First State Bank v. Muzico1. Parties must be same or in
privity2. Cause of action is the same3. Final decision in the first
suit4. Decision must be on the meritsd. First Element Parties are
the same or in privityi. Algi v. RCAFactss were terminated in a
merger between s. s were given new employers severance package
which was less than their original employers. There was another
suit filed in 9th cir Pippin, which was same. Pippin had cause, and
final decision on the merits.
IssueWas there privity between Algi and Pippin?
RulePrivity is: 1) current or successive property interest; or
2) Virtual Representation of same person (through a) control or b)
virtual representationMontana v. US: Privity through control where:
The complaint was reviewed and approved by the party being
virtually represented Non-party paid attorneys fees and costs
Non-party directed the appeal Non-party appeared and submitted a
brief in the appeal Non-party effectuated partys abandonment of the
appealMin reqirements are helped with the theories, helped with the
evidence, and requested the appeal.Privity thought Virtual
Representation where: Agreement by the non-party to represent him A
relationship between litigants that demonstrates that the party was
in fact representing the non-party and was authorized to do
so.Also: Evidence from the first suit must sustain the second
suit.
AnalysisNo evidence was presented that Algie authorized pippin
to represent him. Algie did not control the litigation in
Pippin.
ReasonParallel legal interest does not equal basis for
issue/claim preclusion.
ConclusionAlgies claim is not precluded by RJ
e. Second Element Cause of Action must be the samei. Traditional
Rule1. Restatement of Judgmentsa. Where evidence needed in first
case would have sustained the second case. b. Splitting the cause
of action where the loses and then tries to re-litigate part of the
first claim again not going to happen. 2. Terry v. PipkinFacts
installed a pump for . paid for pump and replacement, but not
repairs; case 1 breach of K (evidence = the K); case 2 quantum
merouit (evidence = no contract)
IssueAre the Causes of Action the same?
Rule RJ bars if there are same cause of action; Montana Evidence
from first suit sustains second suit = RJ
AnalysisThe cause of action is not the same, but is the evidence
used for both the same? No. Two causes of Action = two suits
ReasonThe evidence is different because BofK = proof of K and QM
= no K existed.
ConclusionThey are different suits, therefore no RJ
a. Claims could have been joined togetheri. Rule 18 = joinderii.
Modern Rule1. Restatement (Second) of Judgments where the claim
(cause) is the same, same transaction or series of transaction, it
bars the s rights to remedies. 2. TEST IS TOMS!a. Time - did the
things in case 1 happen in the same time frame as case 2?b. Origin
is the origin of the first suit the same as the second?c. Motive
did the same things that are motivated trans 1 motivate trans 2?d.
Space did this occur in the same place? e. Convenient trial unit
(CTU)/Single Trial Unit (STU) would it be a good idea to bring
these issues at the same time?f. Conforms to parties expectation
(CPE) did the parties expect that they would do everything in the
first suit?3. Three Rivers v. MaddouxFactsCase 1 foreclosure but
leases anyway, wants specific performance suit between parties re
land (granted) finds there is a defect in the land and wanted
damages. TC denied adding damages to equity. Case 2 same as case
one but in law not equity b/c buys for less because of foreclosure
wants damages - says RJ. @tc (case 2) denies RJ b/c SD (Terry)
IssueDid the first case in equity bar second case in Equity?
RuleRJ bars for one transaction or series of transactions of the
same person.
AnalysisThis cause of action arises from the same trx/series.
Judge could have given/ could have asked for express preservation
of right to file second suit.
ConclusionThey arise from the same transaction/series, therefore
RJ is proper. Should appeal decision from case 1.
4. Anaya v. City of AlbuquerqueFactsCase 1: (and co s) were
terminated by City b/c of violation of drug policy claims that
violated their own open meeting act (OMA) therefore their
terminations were invalid. MSJ granted by TC and no appeal. Case 2:
filed while 1 was pending. Single , same OMA violations but added
drug test violated 4th amend., deprived him of interest in
employment w/o DP, and BoK.
IssueDoes Case 1 bar Case 2 in RJ? Can parts of Case 1 bar all
or part of Case 2?
Rule4 elements for RJ: Same party or Privity Same cause of
Action Final decision On the merits
Analysis1) same parties 2) final decision 3) on the merits. Is
this the same CoA? Look to facts of each case the facts for s OMA
claim are the same, but the facts necessary for the other three
claims are different. Repeated-ness of facts, is this a CTU? Should
they be a STU? OMA claim is barred, but has different issues that
did not relate to others claims. Therefore, claims 2-4 are not
barred.
ConclusionAdditional claims are barred on RJ only where they
could have been asserted based on facts of the original case. Where
there are additional facts necessary, then no RJ.
5. Heffern v. First Interstate BankFactsCase 1-4: took out four
loans; he defaulted. filed four suits 3 Stip Judgments and one DJ.
Case 5: filed suit alleging 5 counts against . argues that these
claims were compulsory counterclaims to their first 4 suits.
IssueIs s claim a compulsory counterclaim and therefore barred
by RJ?
Rule Rule 13 compulsory counterclaims counterclaims that must be
fled if they arise out of the same transaction or series that are
the subj. matter of the suit.
AnalysisThis claim arises from the same trx/series. Even though
he didnt file a pleading he still had to file this r 13
applies.
ConclusionR 13 applies to cases where there wasnt a pleading
filed by , and where the subject matter of s claim is the same as s
R13 claim, its compulsory.
f. Third Element Final Judgment in first actioni. Note: first
finished, not first filed. ii. Casisas v. Southwest Medical
AssociationsFactsCase 1: files suit in state court for wrongful
termination; Case 2: files a suit in Fed court for the same
transaction alleging violation of fed law. Case 1 in state court
finished first by MSJ.
IssueDoes case 1 in State court bar by RJ Case 2 in Fed court?
Was MSJ a final decision on the merits?
RuleRJ: 1- same parties; 2- same CoA; 3- Final Decision; 4- on
the merits
AnalysisThere are the same parties, the same CoA or transaction
(T from the same termination; O same termination; M termination was
for same reason; S same termination) (CTU? yes because they deal
with the same evidence.) MSJ is a final decision, and it is on the
merits.
ConclusionRJ bars across state and fed cts. Stays dont affect
the finality of judgments. FRCP 60(b)(5) can re-open a second case
if appeal changes final decision.
iii. Notes:1. Minority view is that judgment is not final until
it is un-appealable. 2. Reeve v. Jones the jurisdiction where the
final judgment was made in the first finished case is where the RJ
rules will be taken from. 3. Final Judgment for RJ and CE can be
different. 4. Final Judgment for appeal is different than for RJ
and CE5. NM: final judgments can be enforced when they are entered
by the court unless otherwise stated in the judgment. 6. Full Faith
and Credit: 2 steps! a. If there are two jurisdictions there are 2
steps for FFC.b. What are forum 1s preclusion doctrines?c. Forum 2
must give judgment same preclusive treatment that forum 1 would
give with limited exceptions.d. US Const Art 41 = FFCg. Fourth
Element Judgment must be on the meritsi. Semtek v. Lockheed
MartinFactsCase 1: brought suit in CA state court, removed to CA
Fed court case was dismissed in Fed court for SoL, but has lang
specifically say on the meritsCase 2: brought suit in MD state
court (SoL was longer) court granted dismissal of case based on
RJ.
IssueWas SoL dismissal a final judgment on the Merits?
RuleJudgment on the merits is one that is based on the
substantive merits of the case. Rule 41(b) involuntary dismissal
for failure to prosecute or comply that is made for any reason
other than lack of juris, improper venue, or failure to join a
party is on the merits. In Diversity, federal courts will apply the
forum states SoL, BUT the fed court will determine (using fed CL)
whether the dismissal for SoL is reasona to bar suit only in the
forum or in all courts. Once that decision is made, then they
decide if they bar under rule 41(b).
AnalysisThis case does not fall under rule 41(b) because its not
for lack of prosecution, it is for lack of available remedy,
therefore, it IS ON THE MERITS. Only not on the merits where it
says so specifically.
ConclustionFor preclusion at the federal level, they defer to
the state laws in which they sit. Forum 2 must do what forum 1
would do. Fed cts also do this when sitting in diversity unless
impedes on feds interest. FED COURT does not FFC under
constitution, but does GIVE discretionary.
ii. 12(b)(6) dismissals are NOT on the merits. iii. MSJ IS on
the merits. iv. Failure to meet precondition is NOT on the merits.
v. Stip Judgment IS on the merits vi. NO RJ if:1. Jurisdiction,
venue, or joinder2. Voluntary dismissal w/o prejudice3. Statutory
righth. Exceptions:i. Restatements Second1. Claim splitting WITH
consent2. Court reserves the action in Case 13. Judgment is
inconsistent with equity or constitution4. Policy argument for no
RJii. Nash v. OverholsterFactsCase 1: (wife) v (husband) for
divorce. There is a stipulation to property division. Stipulations
are final and on the merits for RJ. Case 2: v for ass & Batt in
tort. argues RJ, TC disagrees because divorce is not proper forum
for tort.
IssueAre the divorce and the ass/batts same transactions?
RuleRJ: 1 parties 2- CoA/transaction; 3- final decision; 4- on
the merits; TOMS?; CTU?; improper forum does not RJ
AnalysisThe tort action was improper for the domestic venue. DMs
do not get jury, but torts do. T yes marriage is the larger
transaction, but it is not all encompassing; O- maybe; M- no; s-
yes.
ConclusionWhere there are such stark differences in the CoAs,
they do not make a CTU, therefore no RJ.
iii. Liu v. SrtiuliFactsCase 1: files for a TRO from alleging
abuse and a coerced relationship in the complaint for
protection.Case 2: v. and school : argues RJ.
IssueWere the ground in case 2 actually litigated in case 1 for
purposes of RJ?
Rule1) same parties 2) same CoA 3) final decision 4) on the
merits; Claim preclusion is not wholly inflexible. Where there is a
statutory allowance for claim splitting, then no RJ
Analysis was granted TRO through a statutory scheme that
expressly reserves claim splitting. Also, public policy would
suggest that RJ would be inappropriate.
ConclusionWhere a statute expressly reserves the right to claim
split, then RJ does not apply. Where it is statutorily or
constitutionally inconsistent to bar case 2, then case 2 is not
barred.
iv. Eviction followed by damage suit1. Damage suit should not be
barred because the eviction suit allows the landlord to quickly get
the tenant out of the residence. RJ = inappropriatev. Exception for
name changes1. Because name changes are based on the same cause of
action, same forum, and same subject mater2. Not barred because
there is no dispute, no litigation, and no reason to stop a person
from changing their name as many times as they want.vi. Declaratory
Judgment exception1. Where a party asks ONLY for declaratory
relief, there is nothing to bar. One party may go on to seek
damages, injunction, or other further relief.IV. Collateral
Estoppel Issue Preclusiona. Relationship to RJ i. City of Santa Fe
v. Velarde RJ bars entire suit, CE bars only pits and pieces 1. RJ
prevents a party from repeatedly suing another for the same
problem. 2. CE promotes judicial economy, and prevents silly
relitigation. a. Ultimate facts or b. Issues actually and
necessarily decided.b. Traditional Elementsi. International Paper
v. Farrer1. ELEMENTS:a. Parties are the same or in privityb. Cause
of action is differentc. Issue or fact was already litigatedi. Pure
issue of law = CEd. Issue was necessarily litigated e. Prof O:
final determination but less finalc. Issues Precluded:i. DuPage
Fork Life v. Material HandlingFactsCase 1: v in fed court
(diversity) - wins. No AppealCase 2: v ; claims CE saying that the
issues were already litigated. TC finds for on CE; CtApp grants
appeal says CE does NOT apply to law AND fact; argues that CE
applies to the law AND facts
IssueDoes CE apply to either the question of law OR the question
of fact OR both?
RuleCE applies to both questions of law AND questions of fact,
unless the issue is one of law AND the claims are substantially
unrelated OR there is an intervening cause.
AnalysisIn this case, the claims are closely related. They arise
from the same transaction/series of trx.
ConclusionFederal Questions apply CL doctrine of CE and RJ
unlessDiversity of jurisdiction, then federal law applies and feds
incorporate State law, unless they do not. Pure Law questions DO
NOT get CE.
ii. Torres v Village of Capitan1. Where questions of law are
mixed with questions of fact, and the other elements of CE are met,
then CE applies. 2. Where the question of law is independent from
the questions of fact, then CE does not apply. iii. Notes:1. What
is an ultimate fact?a. Evidentiary factd. Issues must have been
actually decided in the first suiti. Intro: BLACK LETTER1. Actually
litigated means:a. Raised propertyb. Submitted ofr determinationc.
Determined2. Can be actually litigated through:a. 12(b)(6) failure
state claimb. 12(c) on the pleadingsc. MSJd. DVe. Extrinsic
evidence is admissible to determine if actually litigatedf.
Contender carries burden of proof3. NOT actually litigated:a. SoLb.
Admitted in pleadingc. Admitted before trial (post pleading) d.
Consent judgment e. Default judgment (but can RJ)f. Stip judgment
unless manifestation of intent to be boundg. Admissions are part of
evidence i. Rule 36 discovery is only admissible in current caseii.
In Re. LamphereFactsCase 1: libel and defamation case Shulman v.
Lamphere DJ entered for ShulmanCase 2: Lamphere files BK; S wants
case 1 to not be discharged so argues CE,
IssueAre issues in a DJ able to CE issues in subsequent
litigation?
RuleCE requires that the issue be ACUTALLY litigated; But
malicious torts are not discharge
AnalysisThe s answer and counter-claim were thrown out in the
first case, and the DJ was entered. Therefore the claims from the
DJ were not actually litigated
ConclusionWhere a party does not have the opportunity to fully
and actively participate in the trial, then CE is not
appropriate
iii. Failure to please in DJ1. If there is a DJ then there is RJ
in NM. Where there is RJ there cannot be CEiv. Post pleading DJ1.
Opportunity to litigate is not enough in NM, there must be actual
liticationv. Settlements and Consent judgements 1. No CEvi. What is
actual litigation requirement?1. When an issue is properly raised
by the pleadings or otherwise, and is submitted for determination,
and is determined, the issue it actually litigated. e. Necessary
Determination:i. Wilson v. WilsonFactsCase 1: H v W for divorce-
parties were married in Mexico and the marriage was never proved.
Parties never cohabitated, but have a baby (paternity). He got her
military benefits and medical coverage. He wanted to get married so
filed for a paternity decreeCase 2: Child is born out of wedlock;
he pays a portion of the child support.Case 3: W wants a divorce. H
asserts CE saying that in case one the court said we were not
married
IssueWas determination of out of wedlock an adjudication of the
parties marital status for the purpose of CE the divorce?
RuleCE requires: same parties, different cause of action, issue
was already litigated, and issue was necessarily decided
AnalysisThe first case decided that there was paternity the
court erred when they said that the baby was born out of wedlock
because that fact was not in question or litigated.
ConclusionAn issue that was not actually litigated and adjudged
is not subject to CE, even if no appeal was taken from the
decision.
ii. Notes:1. Alternative holdings are not CE if two judgments
can be made from the same set of facts, they cannot CE
individually. f. Final Judgment requiredi. Cunningham v. State of
WashingtonFactsCase 1: was in an accident and sued USdot, he
participated in drivers claim, but did not file his own, s attys
missed the SoL. Partial MSJ granted. argues that MSJ is not a final
judgmentCase 2: sues malpractice but must be able to prove that he
would have won. But c claims CE
IssueIs MSJ enough to bar further litigation?
RuleCE requires: same parties, different CoA, issue being
actually litigated, issue being necessarily decided.
AnalysisFactors to look at are the nature of the decision (it
wasnt tentative), the adequacy of the hearing, and the opportunity
for review. Was the MSJ sufficiently firm to allow CE? YES
ConclusionFactors for firmness: Adequately deliberated Firm, not
tentative Fully heard Court supported its decision with a reasoned
opinion Was the decision subject to appeal or was it already
appealed?
ii. Parties are only entitled to CE where they actually
litigated as adversariesg. Modern Rule: Parties Need Not Be The
Samei. Intro1. Traditional:a. CE requires the same as RJ: parties
be the same or in privity.2. Modern view:a. Defensive CE (shield)
i. This was decided before; you cannot decide it again, against me.
shield from liabilityb. Offensive CE (sword) (they cant defend
against my claim because they already did)i. New party seeks to use
CE against a party from a prior claim by saying that it was decided
against them before, and can be done again. Youve been found liable
for this before, you are liable to me for it too.c. Due Processd.
Against whom the party against whom CE is sought must be the same
or in privity with the first casei. FFO to litigate the party
against who CE is being sought has to have had a FFO to litigate
the liability before. e. Actually litigatedf. Necessarily decided.
ii. Silva v. State (non-mutual CE- the party seeking CE is not in
privity with first suit)FactsCase 1: Federal case to improve prison
conditions. Special master made determinations, SM said prison
violated the decreeCase 2: wrongful death suit against the state
saying that the state was already found to be in violation
IssueDid the state have a FFO to litigate the issue from case 2
in case 1.
RuleModern CE: the party against whom CE is sought must be the
same or in privity with the prior suit, diff CoA, acutally
litigated, finally decided
AnalysisThe party against whom CE is sought is the same, but was
the FFO/actual litigation factor fulfilled? The state did not
defend as vigorously in the first suit as it did in the second.
THEREFORE FFO/Actual litigation was not fulfilled.
ConclusionOffensive CE is unfair where: The party had little
incentive to vigorously defend themselves Judgments are
inconsistent with each other The second case allows procedural
opportunities for party to defend themselves There was an
inconvenient forum in case 1.
iii. Additional reasons why non-mutual CE can be unfair1. Size
of claim is disproportional2. Fourm differences3. Competence and
experience of counsel in case 14. New evidence5. Settlement6.
Differences in the applicable law7. Foreseeability of future
litigationh. Persons bound who are not parties in the first suiti.
Taylor v. SturgellFactsGuys are fixing planes together wanted info
from FAA via Foia for the planeCase 1: H v. FAA Faa wins, H
loses.Case 2: T v FAA T hires the same lawyer that H hired, FAA
wants to be able to use non-mutual defensive CE
IssueAre T and H in privity? Was there adequate
representation?
RuleThe person against whom CE is sought must have privity or
have been a party to the first suit. Adequate representation is
where a person was adequately represented by someone else who has
the same interests.
AnalysisA person who was not a party to the first suit did not
have a FFO to litigate claim. If T and H are in privity , then T
had FFO to litigate and CE is appropriate. (FAA seeks to use CE
against T, only works if T and H are in privity). Vitrual
representation is not applicable in Fed court.
ConclusionTEST For adequate representation: Close relationship
between party and nonparty (Interests are aligned) Participation in
case 1 by non-party Acquiescence of non party to preclusive effect
of judgment Deliberate maneuvering to avoid preclusive Adequate
representation of the non party in case 1 Suit is in public law
rather than private law
ii. Adequate rep minimums1. Interests are aligned2. Understood
representative capacity3. Interests of nonparty are protectediii.
Whose CE law applies?1. F2 must do what F1 would do.2. Feds sitting
in diversity must give FFCiv. United States v. MendozaFacts Case 2:
applies for naturalization on a statute that has been expired for
32 year, claiming its expiration and denial are a violation of DP.
argues US is precluded form litigating based on prior case.
IssueIs US precluded from litigating based on prior case?
RuleCE: 1 against whom has privity; 2- difference CoA; 3- FFO to
actual litigate; 4- final decision on issue; unless there is a
fairness reason that CE should not be applied
AnalysisIn this case there are policy reasons why US cannot be
CEed. It is the largest litigator in the US. If one case can
preclude them from litigating further claims, that offends judicial
economy and fairness.
ConclusionNon-Mutual offensive CE does not apply to US (mutual
might)
v. Notes:1. Non mutual defensive CE might be applicable to US2.
Court can decline CE even if element are met if it would be
fundamentally unfair and would not further the aim of the
doctrine.3. NM does not apply CE to DP and pure law questionsi.
Proceedings to which preclusions doctrines Apply:i. Administrative
Proceedings1. Ryan v. New York TelephoneFacts was fired by because
he was stealing. During hearing with work, he had a union rep, but
no atty. was criminally charged. Case 2: was denied unemployment
because he was busted for stealing. (mean while the criminal
charges were dropped)
IssueWas s termination actually litigated? Did the
administrative hearing at s work offer a FFO to litigate where he
was rep by union and did not have access to lawyer?
RuleCE: 1- parties same or against whom is in privity, 2- CoA
different, 3 FFO actually litigated, 4- determination made
AnalysisFactors to consider for FFO Nature of the forum
Importace of the claim Incentive and initiative to actually
litigate Actual extent of the litigation Competence and
knowledge/experience of counsel New evidene Differences in law
Foreseeability for new lawParty asserting CE must prove CE
factors
ConclusionBlack LetterCE can apply to administrative proceeding,
at least when confirmed by a judicial proceeding, if other CE
elements are met and there is FFOL. As D argue that you did not
have FFOL You dont get a lot of discovery You dont get a jury trial
Can you bring an attorney Can you bring and cross-examine witnesses
Can you subpoena witnesses Think about why administrative
proceeding lacks some of the protections of regular court
proceeding.
2. Notes:a. CE can come from an admin where there was an FFOi.
Administrative agency acting in judicial or quasi judicial
capacityii. Resolved a disputeiii. Provided FFOb. Policy easons for
allowing it:i. Too many reviews of administrative decisions
rendering administrative adjudications moot. c. Jack of judicial
review is only one factor in determining if FFO for NMd. Procedural
differences must be good enough to bar CEe. Title VII can NEVER be
CE by admin hearingii. Arbitration Proceedings can be confirmed by
DC and made binding1. Larsen v. Farmington SchoolsFacts was fired
from FHS sent to arbitration arbitration was confirmed by judicial
decree
IssueDoes arbitration get CE?
RuleCE: 1-parties privity or against whom; 2- diff CoA; 3- issue
FFO act litigated 4- decided
AnalysisIn this case, the arbitration was confirmed by the
court. That means that the court reviewed the record. Arbitrators
have to be careful to give you adequate room to make your
record.
ConclusionOnce Arbitration is confirmed by the court, F2 must
give deference to arbitration.
a. If Arbitration is confirmed then FFC2. Stulberg c.
Intermedics Orthopedics can an unconfirmed arb award be CE? Facts
Parties went to arbitration from case in Fed court
IssueCan non-confirmed arbitration awards have CE?
RuleCE where arb is affirmed by court
AnalysisFed courts do not have to give CE to unconfirmed state
arb.
ConclusionFed court gets to choose level of deference they give
to unconfirmed arb awards.
3. 4. Rex v. Manufactured HousingFacts Case 1: A is trying to
buy a house for her and her disabled son with his SSI from R. He
dies in the process of the purchase and she looses that income. She
had already put a down payment. A wants money back from R. MH wants
R to give A back the money. Admin hearing ensuesCase 2: R doesnt
want to give money back and wants to keep licenses.
IssueWhen do arb/admin hearing have preclusive effects?
RuleWhen the court confirms them there is CE. Court grants
confirmation where FFO lit.
AnalysisHere R seeks to bind agency with CE. Rule is generally
that state entities cannot be CE. The agency is not advocating on
public policy but on behalf of individual
ConclusionWhere individual interests are being represented by
admin agency, then CE is applicable
5. Notes:a. FFO Factors:i. Vigorous litigationii. Procedural
difference in the actionsiii. Formality of proceedingsiv. Scope of
arbitrationv. Definiteness of decisionvi. Agency in privity?iii.
Criminal Cases1. Mayes v. ClantonFactsCase 0 sues state for battery
from police officerCase 1 State v for ass/batt on poCase 2 M v. po
individually for batt
IssueCan criminal case CE for civil case?
RuleEvidence in a criminal matter is not applicable in civil
matter to establish the truths upon which the civil case is
based.
AnalysisIn this case, relies upon the fact pattern from crim
case, but doesnt want crim conviction to come in. Same trx/series
of trx.
ConclusionBecause mutuality was eliminated, it changes the rules
to FFO. As long as the party had an FFO then they are barred from
re-litigating the issue.
2. State Farm Fire v. FullertonFactsCase 1: murdered someone
Case 2: SF seeks declaratory judgment family went after SF for
damges under s homeowners policy
IssueIs guilty plea a final decision for CE?
RuleCE: 1- parties, privity, or against whom; 2- diff CoA; 3-
FFO actual litigated; 4- final determination
AnalysisBecause a plea is the admission of the necessary
elements of a crime, and must be accepted by the courts, then there
is arguably a FFO.
ConclusionA judge must be satisfied that there is a factual
basis for a charge, not that the defendant actually committed it
where there is a plea in question, THEREFORE plea deals are FFO
3. Notes:a. Plea of nolo conendre is NOT sufficient for CE.4.
State v. BishopFactsDWI. Case 1: mil to exclude breath testCase 2:
administrative for license
IssueAre civil findings of fact binding in criminal cases?
(cross-over CE)
RuleCross-over is allowed from some administrative hearings into
the criminal proceedings under certain circumstances. CE
applies
AnalysisIn this case, the state and the MVD were not in privity,
therefore it would be non-mutual CE. For non-mutual CE there has to
have been a FFO to litigate. FFO factors are: Whether there was a
reason for vigorous litigation, what are the procedural difference
in the forums, what was the level of formality in the proceeding?
What is the definiteness of the decision?There wasnt a FFO, not all
parties were there, state and DA are not in privity, policy reason:
dont want to turn license revocations into trials
ConclusionNo FFO and no Privity for CE from cross-over from MVD
to Crim
Complex Litigation
I. Real Party in Interesta. Choosing the Plaintiffi. Chavez v.
Regents of UNMFacts sues UNM for wrongful death of daughter in
capacity as parents; MSJ for not having a personal
representative.TC: denies dismissal, CtApp: dismisses; SCNM:
affirms TC not dismissed
IssueWhere there is an honest mistake, and the SoL has passed,
should the suit be dismissed and barred from refilling?
RuleIn wrong death tort, person filing should be filing as
personal representative
AnalysisThe s in this case waited two years after the beginning
of suit to file MSJ, after SoL had run to bar from refilling
properly. Rule 15 c amend pleadings
ConclusionParties can use: FRCP 15(c) relation back of
amendments 17(a) cannot dismiss if real party in interest isnt
given FFO to join 21 misjoinder is not a grounds for dismissal
9(a)(1)(A) pleading need not allege a parties capacity to sue or be
sued
ii. Who is real party in interest?1. Who is the owner of the
right being enforced, AND is in a capacity to dischargeb. Choosing
the Defendanti. Lava Shadows v. JohnsonFactsLS v. Johnson (former
partner) Johnson countered v LS. Court found against WW. WW appeals
saying not a party at time of trial.
IssueIs WW a party personally by virtue of being part of LP
partnership?
RulePleading providing notice MUST seek relief against party
receiving notice
AnalysisIn this case, WW was part of partnership, and
participated in suit as part of partnership, not personally.
ConclusionService of a person on behalf of an entity DOES NOT
make them a party individually.
ii. II. Joinder of Claimsa. Notei. Common law joinder was
strict: claims that were different couldnt be joined togetherii.
Under Fed: as long as there arent subject matter jurisdictional
issues, All claims can be joinedIII. Permissive Joindera. Food
Poisoning Problemb. Mosley v. General Motors co.Facts9s
individually and as a class. 8/12 counts are unlawful employment
practice of discrimination. Ask for injunctive relief, back pay,
atty fees, and costs.
IssueCan GM request that the trial be severed? Were there common
questions of law/fact
RuleJoinder of parties is encouraged s long as its not unduly
burdensome for
AnalysisPurpose of joinder is judicial economy
ConclusionParties can use: 20(b) permissive joinder; protective
measures. Can sever to protect a party from undue burden 42(b)
sever trials
c. d. Grayson v. K-MartFacts11 s in 4 different states. Seek to
file in fed court jointly. All allege age discrimination.
IssueCan s in geographically different locations claim that the
injury arose from the same trx or series of trxs?
RuleR20 same trx, series of trx, and common Q of law/fact
AnalysisThey were too far away and had different supervisors,
too far removed from the policy makers to be same trx. Also no
common question of law or fact because their circumstances were
different
ConclusionIt does not prejudice s to have to present their cases
against seperately
IV. Separate Trial Severance and Conslidationa. Corvello v. New
England Gas Co.Facts4 cases were consolidated so there were over
120 s. s dont want to bring suit together, want to try separately.
also tried to join 3rd party s dont want that either
IssueCan the court join cases together that dont want
combined.
Rule42 court can join and sever at will. Join if there is a
common question of law/fact14(a) - can join 3rd party that is
liable within 14 day of summons or with cts permission after
that.
Analysis used impleader to join persons that might have
liability either to the s or the s. s thought it would make it more
convoluted. 3rd party would delay the proceedings, and a second
trial would be more economical because if wins at trial 1, then no
need for trial 2.
ConclusionCourt can sever at will where it is in the interest of
convenience, to avoid prejudice, and judicial economy
b. Rule 17 and Rule 15i. 17 misjoinder. When a party is
improperly joined, then the court can severii. 15 amending
pleadings - wanted to substitute its parent company. 3rd claim that
parent company lacked standing c. Hendrix v.
Raybestos-ManhattanFactsFour workers v. asbestos company. Asbestos
lost and claimed that the trials should have been done
independently of each other
IssueShould the s have brought suit separately or should the
court have 42(b)ed them?
Rule42(a) common questions of law or fact can be joined if
CTU42(b) separate to avoid prejudice, promote judicial economy, and
convenience
AnalysisCourt has to weigh the prejudice and confusion of the
juries against the risk of having inconsistent verdicts on facts
that are common, same BoP, witnesses, etc.
ConclusionIt was appropriate for the cases to be
consolidated
d. V. Multi-District Transfersa. 28 U.S.C. 1407 (p.193)b. In re.
Seroquel Products Liability Litigationc. Lexecon Inc v. Milberg
Wess Rershad & LErachVI. Rule 14 Impleader (third party
practice)a. 28 U.S.C. 1367b. Technical workc. General Principalsi.
Yates Exploration v. Valley Iprovement Assocd. Note i. Tipton v.
TexacoVII. Interpleadera. Intro problemb. Rule 22c. 28 U.S.C. 1335,
1397, 2361, & 2283d. Mudd v. Yarbroughe. General Atomic v.
Felterf. Use and Misuse of Interpleaderi. Indianapolis Colts v.
Mayor of Indianapolisg. Techinal requirements and Tactical Usesi.
General Atomic co v. Duke (part 1)VIII. Interventiona. Introb.
Statutory Rightc. Rule 24 Interventioni. Atlantic Development v.
USii. Natural Resources Defense Council v. US Nucleard. Permissive
nterventione. NoteIX. Rule 19 necessary and indispensible partiesa.
Srader v. Verantb. State ex rel Coll v. Johnsonc. C.E. Alexander
& Sons v. DEC Internaionald. Relationship between Intervention
and Rule 19X. Class Actions Rule 23a. Intro and structure of Rule
23i. Amchem Products v. Windsorb. Giving notice to class member
when class certifiedi. Eisen v. Carlisle & Jacquelinii. Notice
requirements for B(1) and B(2) class actionsc. Defning the classi.
Brooks v. Norwest Corpd. Rule 23(a)(2) - Questions of law or Fact
Common to the Classi. Wal-Mart v. Dukese. Standard for Certifying
Rule 23(b)(1) (limited fund class actions)i. Ortiz v. Fiberboard
Corps.ii. Amchem Products v. Windsorf. Standard for certifying Rule
23(b)(2) (declaratory/injunctive relief)i. Wal-Mart stores v.
Dukesii. Davis v. Devon Energyg. Standard for certifying Rule
23(b)(3) i. Armijo v. Wal-Marth. Piggybacking damages on a Rule
23(b)(2)i. Davis v. Devon Energy (Part 2)ii. Wal-Mart v. Dukes
(part 2)i. Importance of choice of law questionsi. Castano v. The
American Tobacco Co.XI. Declaratory Judgments:a. Statutes and
rulesi. 28 U.S.C. 2201, 2202ii. FRCP 57iii. NMSA 44-6-1b. Validity
of declaratory judgment acti. Aetna life v. Haworthc. Discretion to
accept or rejecti. Morrison v. Parkerii. New Energy economy v.
Shoobridged. Further relief and preclusion doctrinesi. Andrew
Robinson v. Hartford Fire ins.
Trial Procedure
I. Selection of Trial Judgea. New Mexico practicei. Initial
selection1. NMRA 1-0882. Waldens Civil Proceudre in NM 3. United
Nuclear v. General Atomicii. Preemptory Challenge to Designated
Judge1. NMRA 1-088.12. NMSA 38-3-93. NMSA 38-3-104. In Re Eastburn
iii. 2014 Supplemental case1. Quality Automotive v. Arrietab.
Federal Practicei. 28 USC 144ii. 28 USC 455c. The remedy following
disqualificationi. Pfizer v. KellyII. Jury Tirala. Right to a jury
Tirali. US Const amend VIIii. NM Const Art II 12iii. State ex rel
Bliss v. Greenwoodiv. Scott v. Woodsv. Tull v. USvi. Markman v.
Westview Investmentvii. Bd of Ed of Carlsbad v. Harrellb. Jury
Selectioni. Technical Workii. NM Rules 1-038, 1-039, 1-047,
1-048iii. Selection of Jurors in NM state courtsiv. Gallegos v.
Southern Community Health Servicesv. Lawrence v. Carilion Med
centervi. Selection of Jurors in Fed Court1. 28 USC 1861, 1862,
1865, 18632. NM Fed Dist Court jury planIII. Directed Verdictsa.
Introi. Noteii. Melnick v. State farm Autob. Constitutionalityi.
Galloway v. USc. Timing of Motioni. Home Fire and Marine ins v. Pan
American PetroleumIV. Form of the Verdicta. Noteb. Kennedy v.
Dexterc. Polling the juryi. NMSA 38-5-17ii. William v. JamesV.
Instruction to the jurya. NMRCP 51b. Rational for UJIc. Jewell v.
Seidenbergd. Benavidez v. City of Gallupe. State v. Wilsonf.
Preservation of right to appeali. NMR 1-051ii. FRCP 51iii. Noteg.
Commenting on the Evidenceh. NMR evidence 11-107VI. Non-Jury
Triala. NMRCP 1-051b. Directed Verdicts in non-juryi. Camino Real
Mobil Home Park v. Wolfec. Appellate review of Judges finding of
factsi. Anderson v. City of BessemerVII. Other Fact Findersa. New
Mexico Special Mastersi. Lujan v. Lujan-Casadosii. Buffington v.
McGortyiii. Committee comment to 1-053.1 and 1-0533b. Special
Mastersc. Federal Jadistrate Judgesi. FRCP 72; 73ii. NM Fed Court
local rules 73iii. Workheiser v. City of Clovis
Post-Trial Motions
I. Introductory Notea. Available Motionsb. Time for Making
Motionsc. Time for Deciding Motionsd. Motion to Alter or Amend the
MotionII. Judgment non Obstante Verdicto (renewed Motion for
Judgment as a Matter of law)a. Constutionality and Rationali.
Notesb. Preservation of Right to make an N.O.V. Motioni. Ortiz v.
Jordanii. First National Bank v. Sanchezc. Applicable Standardi.
Boring v. Shipmand. Must be reviewed based on undiminished
records?i. Weisgram v. MarleyIII. Motion for a NEW Triala.
Constutionality, Rational, Applicable Standardi. Aetna Casualty v.
Yeattsii. Rhein v. ADT Automotiveb. Remittitur and Addituri.
Remittitur1. Henderson v. Dreyfus2. Sandoval v. Chrysley Corp3.
Allsups v. North River Ins4. Coats c. Wal-Mart5. Aken v. Plains
Electricii. Additur1. Notec. Grant of Partial New Triali. Cherry v.
Stocktonii. Notesd. New trial in multiple party casesi. Buffet v.
Vargase. New trial because of misconducti. Goldenburg v. Lawii.
Kilgore v. Fuji Heavy Industriesiii. Smith v. Ingersoll-Randiv.
Shadoan v. Cities of Gold Casinof. New Trial in non-jury trialsi.
Cienfuegos v. Pacheco
Appeals
I. Introa. The right to appealb. Jurisdiction of NM Appellate
courtsII. Timing of appeala. FR App Pro 4b. NM SCRA 12-201,
12-202c. Govich v North American SystemsIII. The Final Judgment
rulea. 28 USC 1291 Final Decision of DCs b. NMSA 39-3-2c. Kelly Inn
v. Kapnisond. Ray Haluch Gravel v. Central Pensione. Coopers &
Lybrand v. Livesayf. NotesIV. Orders Practically Disposing of
Merits: post-judgment orders affecting substantial rightsa. NMSA
39-3-2b. Hall v. HallV. Collateral Order Doctrinea. Carill v.
Rostrob. Notesc. Rule 12-503 Writs of Errord. King v. Allstate e.
Breen v. NM Tax and RevenueVI. Appeals in multi-party multi claim
litigationa. NMRCP 1-054b. Rule 54c. E.I. Dupont v. Kolond.
NotesVII. Appeal from Grant and Denial of Preliminary injunctive
reliefa. 28 USC 1292b. EEOC v. Kerrville Bus Co.VIII. Interlocutory
Appeals with Permission of DCa. 28 USC 1292(b)b. NMSA 39-3-2c. NM
SCRA 12-203d. Notee. Clark-Dietz c. Basic Construction Co.f.
NoteIX. Extraordinary Writsa. Fed Court i. 28 USC 1651ii. Fed R App
P 21iii. Bauman v. USDCb. NM court i. NM Const Art VI 3 and R.
12-504ii. Prohibition and Mandamus Distinguished1. Stanley v. Raton
bd. Of ed.iii. Writ of Prohibition1. Chappell v. Cosgroceiv. Writ
of Mandamus1. State ex rel King v. Lyonsv. Writ of Superintending
Control1. DC v. McKEnna2. Johnson v. SchilerX. Certification from
Fed Courta. Mason v. American Emery Wheel Worksb. Notesc. NMSA
39-7-1 to 39-7-13d. NM SCRA 12-607e. Schlieter v. Carlos
Relief from Judgment
I. Introa. Overview b. Rule 60(a)c. Rule 60(b)II. Groundsa.
Clerical Error rule 60(a)i. In the Matter of the Estates of Hayesb.
Rule 60(b)(1) mistake, inadvertence, surprise, or excusable
neglecti. Deerman v. Bd of County commissii. Kinder Morgan v. State
Taxation and Revenueiii. Adams v. Para-Chem Southernc. Newly
discovered Evidencei. Fowler-Probst v. Datillod. Fraud,
Misrepresentation, or other misconduct of adverse partyi. State ex
rel Symms c. V-1 Oile. Void Judgmentsi. Classen v. Classenf.
Judgments Satisfied or No longer equitablei. Marshall v. bd. Of
Edg. Rule 60(b)(5) Modification of consent decrees; institutional
reform injunctionsi. Horne v. Floresii. Escalera v. New York
Housing Authorityiii. Building and Construction Trades Council v.
NLRBh. Any other reason justifying relief form operational
Judgmenti. Resolution Trust Corp v. Ferrii. The Independent
actioni. Turner v. Pleasantj. Frau upon the courti. Moya v.
Catholic Archdoicese of NMk. Requirement of Meritorious defensei.
Magnolia Mountain v. Ski Rio Partnersl. Procedural Aspectsi. Review
of rule 60(b) decisionsii. Power of DC after Appealiii. Standing to
reopen judgmentm. New Mexico Twist: Statutory control over
Judgmenti. Laffoon v. Galles Motor Co.