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.