CIVIL PROCEDURE CLASS 41

Professor FischerColumbus School of LawThe Catholic University of AmericaNov. 30 2005

ELEMENTS OF ISSUE PRECLUSION (s. 27 Restatement (Second) of Judgments

Same issueActually litigatedActually decided (final valid judgment ion the merits)Determination is essential to judgmentSome state courts require mutuality, i.e. same parties

JUDGMENT ON ALTERNATE GROUNDS: NECESSARY?

What if judgment is explicitly based on alternate grounds? Strictly speaking, neither ground alone is necessary to judgment. Yet each supports the judgment and is made against the losing party, so all may be reviewed on appealOld rule – each alternate ground entitled to preclusive effect

JUDGMENT ON ALTERNATE GROUNDS

Currently, there is a division of authority on this question.First Restatement of Judgments: BOTH alternative findings are essential Restatement (Second) of Judgments states that “if a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone.”

Alternative Determinations?

A sues Z for negligence. Case is tried to a jury. Jury returns a special verdict finding that 1. Z was negligent 2. A not negligent. Court enters judgment in favor of A.This jurisdiction is a contributory negligence state

Due Process and Mutuality

Due process – against whom can preclusion be asserted?Mutuality – by whom can preclusion be asserted?

Due Process Limit on Collateral Estoppel

Applies only to litigant who has already lost on the issue, not someone who has never had a chance to litigate the issue.Preclusion can only be asserted AGAINST one who was a party or in privity with a party

MUTUALITY

Only people who can use preclusion in case 2 are people who would be bound by the judgment in Case 1 – based on fairnessUnder traditional mutuality approach, only people who can assert preclusion in Case 2 are those who were parties or in privity with parties in case 1

MUTUALITY

Not based in constitutional principlesCourts thus are free to jettison itSome have moved to permit “non mutual” assertion of issue preclusion (that is, using preclusion by someone not a party to Case 1)

Mutuality

Offensive vs. Defensive use of collateral estoppelYou should know the case of Blonder-Tongue, 402 U.S. 313, cited in Parklane at 916.

Blonder-Tongue: nonmutual defensive issue preclusion

Involved infringement of a patentCase 1: P sued D1 alleging patent infringementJudgment in favor of D1 – patent invalidCase 2 P sued D2 alleging infringement of same patentCan D2 assert preclusion? yes left open possibiiity of non mutual offensive collateral estoppel

Parklane Hosiery v. Shore (1979)

Violation of federal securities laws by corporation/managers/stockholdersCase 1: SEC sues Ds alleging materially false and misleading proxy statement in connection with merger. SEC wins. Finding that proxy statement was materially false and misleadingCase 2: Ps sue same Ds on same basic claim re same proxy statement. Can Ps rely on issue preclusion?

Non Mutual Offensive Collateral Estoppel

Justice Stevens in Parklane (CB p. 917): “Offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive use does.”Why not?

Non Mutual Offensive Collateral Estoppel – less judicial efficiency

Why? No joinder incentive – in defensive case; incentive to join all potential defendants to Case 1 Offensive: If P1 loses in Case 1, P2 not bound by judgment (due process). If P1 wins, P2 can use P1s victory in Case 2. Likely increase amount of litigation

Offensive Collateral Estoppel

Provides incentive for Ps to “wait and see”May be unfair to a defendant: 1. where D may have little incentive to defend Case 1 with vigor 2. multiple inconsistent judgments 3. D did not have a full and fair opportunity to litigate

Parklane

Did Court permit nonmutual offensive collateral estoppel, given its concerns?

Parklane

Did Court permit nonmutual offensive collateral estoppel, given its concerns? On facts of case, it did since Court convinced that party using issue preclusion could not “easily have joined the earlier action” and use of issue preclusion not unfair to the defendant

4 PARKLANE FACTORS1. Could nonparty have joined prior litigation?2. Was subsequent litigation foreseeable at time of first suit?3. Is judgment being relied on consistent with prior judgments against this D?4. Are there any procedural opportunities available to D in second action that did not exist in the first that would lead to a different result?

Status of Parklane and nonmutual collateral estoppel

Led to “plaintiff shopping” strategy – let strongest potential claimants sue firstDoes not represent the majority view. It is the approach in federal courts and some states (e.g. Alaska, SC, NM, Mo.) but many others states (e.g. Tenn, Tex) have not endorsed it

DEFENSIVE NONMUTUAL ESTOPPEL

Suit 1: P sues D1 (P loses on Issue A)

Suit 1: P sues D2 (D2 pleads collateral estoppel to bar plaintiff from relitigating Issue A)

OFFENSIVE NONMUTUAL COLLATERAL ESTOPPEL

Suit 1: P1 sues D (D loses on Issue A)Suit 2: P2 sues D (new plaintiff invokes collateral estoppel to establish Issue A in her suit against D)

NEW UNIT

More consideration of venue (forum no conveniens and transfer of venue) This will not be tested. If it appears on exam and a student accurately discusses this material, he or she will receive extra credit

FORUM SELECTION CLAUSES

Parties may select a venue that is not a statutory venue by including a forum selection clause in a contract.Non-negotiable forum selection clauses have been enforced by the Supreme Court.

FORUM NON CONVENIENS

Compare this doctrine with:28 U.S.C. § 140428 US.C. § 1406

28 U.S.C. § 1404

(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been broughtPIPER - After removal to US District Court for Central District of CA, action is transferred to US District Court for Middle District of PACases are usually transferred under this section between federal district courts rather than dismissed for forum non conveniens

Improper Venue Provision

28 U.S.C. § 1406(a) permits court to dismiss if venue has improperly been laid “or if it be in the interest of justice, transfer [the] case to any district or division in which it could have been brought”

PIPER AIRCRAFT CO. V. REYNO (1981) – CB 784

Landmark decision on forum non conveniensWho is the plaintiff?Who is plaintiff suing?What is the cause of action?Where does plaintiff bring the action?Why does plaintiff choose that forum?

Piper Aircraft Co. v. ReynoWrongful death suit originally brought in Superior Court of California by Gaynell Reyno on behalf of 5 Scottish passengersDefendants were Piper Aircraft Co. (aircraft mfr) (PA) and Hartzell Propeller Inc. (OH) (propeller mfr)

Scottish Legal System

See also Kevin F. Crombie’s useful site: http://www.scottishlaw.org.uk/

DEFENDANTS’ MOTIONS

Explain the strategies and procedural moves of defendants Piper and Hartzell. How did the case get from the state court in CA (where filed) to the federal court in PA?

28 U.S.C. § 1404

(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been broughtPIPER - After removal to US District Court for Central District of CA, action is transferred to US District Court for Middle District of PA

IN THE U.S. SUPREME COURT

How does the majority rule in the U.S. Supreme Court? Describe Justice Marshall’s reasoning in his majority opinion.

PIPER Test

In applying the doctrine of forum non conveniens to a foreign plaintiff, Supreme Court essentially follows two steps it had articulated in Gilbert. 1. Requires a suitable forum in another country2. Considers 4 factors or interests to determine which forum would best serve private and public interestsUnfavorable choice of law alone should not bar dismissal

SIGNIFICANCE OF PIPER v. REYNO

This case extends doctrine of forum non conveniens for use in an international context by adopting a lower threshold and by decreasing its deference to foreign plaintiff’s choice of forum (takes nationality into consideration)The foundation for any modern forum non conveniens analysis in an international context. Decision has prompted continuing criticism

LORD DENNING

Famous and long-lived English judge“As a moth is drawn to the light, so is a litigant drawn to the United States.”

Attractions of U.S. Legal System For Foreign Plaintiffs

Encouragement by U.S. plaintiffs’ bar for litigants to bring suit in U.S.contingency fee arrangementsextensive pre-trial discoveryadvantageous substantive lawavailability of trial by jurytendency for large jury awards