Civil Procedure II Outline - Part 24

1. Panniel V. Diaz
   1. For the doctrine to apply to foreclose the relitigation of an issue, the party asserting the bar must show that
      1. The issue to be precluded is identical to the issue decided in the prior proceeding
      2. The issue was actually litigated in the prior proceeding.
      3. The court in the prior proceeding issued a final judgment on the merit.
      4. The determination of the issue was essential to the prior judgment and
      5. The party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
   2. A court can decide not to apply the doctrine where there is sufficient countervailing interest or if it would not be fair to do so.
   3. Is that the party bound had a “full and fair opportunity to litigate the issue in the earlier proceeding”
   4. Collateral estoppel is not to be applied mechanically, even where all of the required elements for preclusion are present, countervailing factors may call for restraint.
      1. Specifically there are five recognized exceptions to collateral estoppel listed in section 28.
         1. There is a clear and convincing need for a new determination of the issue
            1. Because of the potential adverse impact of the determination on the public interest or the interest of person not themselves parties in the initial action
            2. Because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action or
            3. c because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.
      2. Does not matter whether the issue is factual in nature or a question of law.
      3. Is a trial necessary for an issue to be actually litigated.
         1. Panniel itself may suggest that the answer is no, because the first proceeding was not a trial but an evidentiary hearing.
            1. Issues can also be submitted and determined on motions to dismiss for failure to state a claim, summary judgment, judgment on the pleadings directed verdict, judgment as a matter of law, or judgment notwithstanding the verdict.
      4. 52 a
         1. Requiring the trial judge to find the facts specially and state them on the record or in memorandum of decision filed by the court in an action tried to the bench.
      5. The issue determination must be essential to the judgment
         1. A fact merely found in the case becomes adjudicated only when it is shown to have been a basis of the relief denial of relief or other ultimate right established by the judgment.
            1. General decisions by judge as well as by juries are given an issue preclusive effect if the various requirements are met.

nnnnn. The argument for issue preclusion may also be raised however in cases that involve new parties.

1. This is no mutual or one way preclusion because the parties to lawsuit #2 are not each able to use the judgment from lawsuit #1 to establish an issue in lawsuit #2

ooooo. As long as the foundation had a full incentive to litigate the issue in lawsuit #1 It has had its chance to prove this patent valid and failed. Why should I be able to keep relitigating the same issue as long as the supply of unrelated defendants holds out.

ppppp. Why defensive issue preclusion, can you be collaterally estopped from bringing a suit?

1. Litigants who never appeared in a prior action may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim.

qqqqq. Defensive issue preclusion in state courts>

1. Traditionally courts held that issue preclusion must be mutual.
   1. The supreme court of california approved the defense, opening the intellectual door to many but not all other courts abrogating mutuality on the same reasoning.

rrrrr. Plaintiffs have sought to invoke issue preclusion to establish facts to prove its claim.

1. Parklane
   1. Not to preclude the use of offensive collateral estoppel but to grant trial court's broad discretion
      1. Factors
         1. First, A trial court must have confidence that the issue was fairly determined in the prior action.
            1. This is might be unfair to preclude a patty if it did not have an adequate incentive to litigate the issue aggressively in the prior action
            2. It could also be unfair if the result in the prior action was somehow brought into question, if it was inconsistent with findings in other actions on the same issue.
            3. Finally it would be unfair if the losing party did not have a full procedural opportunity to litigate the issue in the prior action.
               1. This is the same full and fair opportunity requirement that most courts now apply generally to issue preclusion.
            4. Second, Issue preclusion might also be denied if the plaintiff had waited in the wings for another litigat to litigate a common issue , hoping to ride on that other parties coattails if the outcome is favorable and to reliitgate if it is not. Permitting such strategic behavior would promote inefficiency.

sssss. Problems with offensive non mutual issue preclusion

1. Plaintiff shopping
   1. The attorneys for numerous potential claimants might agree to jade the strongest case and go to judgment first so the subsequent claimants can ride the successful judgment through nonmutual offensive issue preclusion.

ttttt. Most states have not embraced nonmutual offensive issue preclusion.