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I. PRECLUSIVE EFFECT OF PRIOR ADJUDICATION: Res Judicata/Collateral Estoppel.

Res Judicata (thing adjudicated): Claim Preclusion
Purpose of Doctrine → Judicial Economy.
Cause of Action merges into judgment on merits. If later claims arise P is out of luck. Precludes claims which were litigated as well as those that should have been (mature compulsory counter-claims), arising fm the same COA, btwn same P and D. (Sawyer)
If P wins, claims and related claims merge in J & P may not bring those claims if future litigation against same D
If P loses, claim and related claims are barred in future litigation brought by P against same D.
RJ precludes claims that were litigated → compulsory counter-claims under R13a must be litigated as matter of law.
Concept is Finality vs. Correctness of judgment → judgment may be wrong, but if final too bad…APPEAL! Perfect your right to appeal. Also have interlocutory (as in WWVW and Asahi).
RJ requires a joinder of claims but not a joinder of parties. Maximize use of R18 (Joinder of Claims). RJ does not bind parties.
Rule Against Splitting Claims. Per Moitie Case, RJ doctrine says can’t split claims. If have a Fed and State claim under same COA, then Fed Court can use § 1367 to get pendant jx.
Exception: While may be the same set of facts presented in each claim, may have different primary rights created (ie one Fed and on State). Per Sawyer, if facts are different (different witnesses, theories, & potentially conflicting evidence) then may want to try claims separately and application of RJ is not appropriate.
California Test: A claim is part of the same COA under Calif law only if it is part of the same “primary right”.
How the RJ Defense is raised:
Normally party advantaged by the defense, raises it.
12(b)(6) Failure to State a Claim. Raise by motion or in pleading.
8©. Affirmative defense of Res Judicata → Raise in pleading to preceding pleading.
Keep an eye on Rules 8(a)3, 8(e)2, 13, 14, 18, 20
Courts may raise Res Judicata defense on its own motion.
Pleading in the alternative & RJ → R8(e)2. Also have Rule 15(b) which deals w/ supplemental pleading.
Note on dismissals: Some such as for improper venue or lack of pers jx, do not bar a 2nd action bc the ct never reached the merits, must less decided it → not a final judgment on the merits.
COLLATERAL ESTOPPEL (issue preclusion)
Intro: RJ barrs efforts of party to relitigate events that have already been litigated and decided in prior suit or could have been litigated if arising out of same transaction or occurence. CE dissects lawsuit into issues & separates fm reconsideration any issues that have been decided in a prior action. CE precludes party fm relitigating issues that were actually litigated and decided in prior action. If issue could have been litigated in prior action but was not, CE will not bar litigation in a subsequent action. The transactions may have been separate but the issue is the same thus will be CE’d. Keep in mind that issues already litigated might come up again in later litigation but based on separate events.
CE is common law so lots of judicial discretion is exercised.
CE is used to bar persons who have been parties to prior litigation.
Watch out for CE and Due Process → remember can’t take one’s property without due process.
Direct Estoppel: can’t refile based on adjudicated claim already lost, regardless of jx. Can only appeal.
3 Questions Test:
Id the issue → is the issue to be litigated the same issue previously litigated?
Finality → was there a final judgment on the merits?
Parties → is the person against whom the plea of collateral estoppel is asserted
Rules to invoke CE (fm Tutuer)
Issue sought to be precluded must be the same as that involved in the prior action
The issue must have actually been litigated
The determination of the issue must have been essential to the final judgment. <issue must have been “determined” & “essential” to the judgment>
The party against whom estoppel is invoked must be fully represented in the prior action.
Additional criteria → party against whom CE is sought must have had a “fair opportunity to litigate” in the prior proceeding (including opportunity to offer direct and rebuttal evidence)
PERSONS PRECLUDED.
Claim preclusion against other parties.
Privity: Is a relationship btwn pers party to the litigation and a third party strong enough that the third party is barred from litigating the same claim. View is if privity, then the connection btwn the third pers and the pers party is close enough that the pers party to the litigation is said to represent the third party’s interest. Have “privity” and “virtual representation”.
Interest of a 3rd party vs Precluding the legal Right of a 3rd party. If a 3rd party has legally enforceable rt, judgment entered in a suit which he did not participate cannot bind him.
Issue Preclusion against other parties: J may have CE effect not only btwn parties to original proceeding, but also between such a party on one who was not a party to the first actions. Mutual vs Non-Mutual
Mutual. Old rule that has been abandoned in many jx. Says CE should apply only when it can apply “mutually”. One pers should not be bound by J unless, if J had gone other way, opposing party would also have been bound. Converse is true. Privity comes into play.
if pers was in privity w/ winner, could take advantage of winner’s victory.
if pers was in privity w/ loser, was bound even though never had day in court.
Non mutual (Parklane Case). Goes beyond the CE doctrine by allowing a new party to invoke CE against a party who litigated and lost on an issue in a prior action. Per Bernard Case → the party against whom estoppel was asserted, had been a party to the first action and had had a full and fair opportunity to litigate the issue there.
Defensive: defensive use occurs when D seeks to prevent P from asserting a claim the P had previously litigated and lost against another D. Cts like bc promotes judicial economy bc gives P a strong incentive to join all potential D in first action if possible (offensive CE provides the opposite incentive).
Offensive: offensive use of CE occurs when P seeks to foreclose the D fm litigating an issue the D has previously litigated unsuccessfully in an action w/ another party. Cts are cautious to apply nonmutual CE bc the party against whom estoppel is asserted in 2nd action was D in 1st suit and did not choose the forum in which issue was decided. Also, taking advantage of another P’s victory, also, D may not have litigated as aggressively in first actions ($$ small and bad forum). Thus only apply if meet regular CE criteria and where it would not be inequitable to D to do so.
Don’t allow offensive estoppel if:
P could easily have joined in earlier action, or
The application of offensive estoppel would be unfair to D (see Parklane, pg 1324)
RULE: In Fed ct (and CA) have the right to offensive, non-mutual Collateral Estoppel. However, USSC held that offensive nonmutual CE should not be available against the US.
Settlements to avoid preclusion. Sometimes litigants settle case to avoid preclusion that would result fm unfavorable J. Also, wrt successive cases w/ judgments entered, issue preclusion fm first case increases settlement value of later cases for P.
Vacation of a Judgment. If J vacated bc of appeal, has effect of wiping off the books to TC’s determination.
Preclusive Effects of Criminal Convictions: A criminal conviction can be relied on for preclusive effect in a subsequent civil action in which crim D is a party. Thus, if criminal conviction comes first the apply the 3-part test for CE.
FULL FAITH AND CREDIT IMPACT: Recognition of judgments from other jurisdictions:
Interstate Recognition of Judgments. Fauntleroy case. Per the Constitution, Full Faith and Credit must be given in 2 instances:
To judgments of sister states
To the laws of sister states. Note: General rule is penal rules of one state are not given effect in another state.
Note: Erroneous judgments on the merits are still entitled to full faith and credit.
Not all judgments are entitled to FF&C.
Judgments not final don’t get FF&C
Judgments “not on the merits” ie, based on procedural faults rather than substantive law, need not be given preclusive effect (judgments based on faulty jx, venue, parties, pleading, or SOL are generally not subj to FFC).
Enforcement of judgments. Uniform Enforcement of Foreign Judgments Act.
Federal-State Recognition of Judgments.
State-Federal Recognition: Governed by the FF&C statute 28 U.S.C. § 1738. The later Fed Court is to give the same preclusive effect the rendering state court would have given.
USSC expanded Marrese holding beyond litigated judgments to include court-approved settlements.
Federal-State Recognition: No statute, but caselaw (using combo of constitutional and statutory considerations) says state courts must give res judicata effect to the J’s of fed courts. The question is the scope of the state courts duty
Marrese v. American Academy of Orthopaedic Surgeons. Dealt with the preclusive effect of a state ct J in a subsequent lawsuit involving federal antitrust claims w/in exclusive Jx of fed cts. P should have filed in Fed ct and pended the state claim. In this case the antitrust claim could not have been litigated in state ct. If law of the state is the no issue preclusion if did not have smjx over the claim, the no issue preclusion and claim is not barred fm litigation. (did not address if this was an implied exception to § 1738).
Parsons Steel, Inc. v. First Alabama Bank. St ct said didn’t need to give RJ effect to fed ct & made own J. Resp does big NO NO and makes collateral attack…asks fed ct to enjoin any attempt by st ct to enforce st J. CT said resp should have appealed st ct J or sought injunction prior to final J by st ct. RULE: a final j last in time is the controlling j re’lss if is a J in error. RJ under § 1738 → ct said no exception offered by § 2283. “Anti-Injunction Act”.
Federal Injunctions to “protect or effectuate” Fed judgments. Applies to later state ct proceedings → Fed Ct has power to issue injunctions to protect its judgments.
Timeliness of seeking injunction under § 2283 (pg 1358). Injunction only applies to situations in which st ct has yet to rule on the merits of the RJ issue. Once state ct has ruled on the merits of the RJ claim then § 1738 kicks in and is a FF&C issue. Thus if you want an injuction under § 2283, seek it fm fed ct as an initial matter.
International Recognition. Not within mandates of FF&C Clause of Constitution or statutory provisions of FF&C Act. Absent a treaty, each country decides for itself if will recognize J of foreign country → voluntary process known as “comity”. Reciprocity Doctrine comes into play.
Note on Treble Damages. Act in England that provides only gives 2/3’s damages vice the whole.
Another Action Pending (Csohan Case → issue of interpleader). Abatement or staying of a pending state action. RJ, CE, and compulsory counterclaim are retrospective regulation. Concurrently applied devices are a plea to abate and a motion to stay on the ground that there is another pending action btwn same parties concerning same subj matter.
Plea in Abatement: consequence is ordinarily dismissal of 2nd action. Will be sustained when it appears 1st action, were it to go to J, would be RJ to the 2nd. Plea proper on when 1st action is in same jx and involves same alignment of parties.
Motion to Stay. May be granted when the prior action involves closely related issues even though is not clear that RJ will result.
Injunction against a Parallel Action. Can issue an injunction in one proceeding against the prosecution of a parallel or related action in another proceeding.

II. PLEADINGS

INTRODUCTION TO PLEADING
Two kinds of pleading in civil suits: Notice and Code. Central function of pleadings to provide notice to the other party of nature of pleader’s contentions and to provide basis for proceedings that follow.
Notice: Used in Fed Dist Court and in most state trial courts. To assert a substantive claim complaint need only provide:
“a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(2)
idea is just to give other side notice of what’s going on
Code: Sometimes called fact pleading. Requires:
a statement of facts constituting the cause of action, in ordinary and concise language. (Cal C. Civ. P 425)
Requires lots of specificity
Burden of Production vs. Persuasion. The pers who has burden of pleading has burden of PRODUCTION (don’t say burden of proof) → He who pleads must prove.
Burden of Production. Party with Bof Pro has burden of coming forward with evidence so support their case…must produce sufficient evi to allow factfinder (judge or juryP to find in their favor. (Pleading refers to making allegations; production refers to producing evidence to support those allegations).
Burden of Persuasion. Party having BofPer bears risk of non-persuasion. If factfinder not persuaded that critical alleged facts have been proved, the party with BofPer loses. Standards of Persuasiveness:
Ordinary Civil Cases → P must prove by “preponderance of evidence”
Certain Civil Issues (ie, fraud) → higher proof burden… “clear and convincing evidence.”
Criminal Case → prosecutor must prove D’s guilt “beyond a reasonable doubt.”