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Civ Pro (Jurisdiction) - Collateral Attack & Preclusion
Toledo Law - Professor Richman - Spring 2012

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What is a default?
  • To be neglectful; esp., to fail to perform a contractual obligation.
  • To fail to appear or answer.
  • To enter a default judgment against (a litigant).
What is a default judgement?
A judgment entered against a defendant who has failed to plead or otherwise defend against the ∏'s claim.
A defendant who defaults in an action in one jurisdiction may collaterally attack the default judgement when it is sued upon in a second jurisdiction. What is a collateral attack?
An attack on the judgement in a separate proceeding, often in another state.

Basis for Attack:

  • Personal Jurisdiction
  • In Rem or Quasi in Rem jurisdiction
  • Extrinsic Fraud (Fraud that could not have been uled on by F-1; Ex: deprived D of his opportunity to appear and defend)
  • Subject Matter Jurisdiction
What is a waiver?
  • A D who appeared in the original action without objecting to jurisdiction, or one who unsuccessfully litigated the jurisdictional issue in the first action, may not collaterally attack the judgement.
  • The successful objection to jurisdiction may, of course, be repeated on appeal to a court superior to the first trial court; but this is a direct rather than collateral attack.
The doctrine of former adjudication consists of two components that prevent re-litigation. What are those components?

There are 2 main categories of rules governing re-litigation:

  1. Claim Preclusion
  2. Issue Preclusion
What is Claim Preclusion?
  • Claim preclusion prohibits a second suit on a claim or cause of action that was asserted in a prior suit that resulted in a judgment on the merits. 
  • (The judgment in the first suit precludes not only all issues that were actually litigated in the first suit, but also all issues that could have been litigated.)
  • The policy behind the doctrine is to avoid fragmented, piecemeal litigation; the goal is to adjudicate the entire dispute in a single proceeding.  After that proceeding, any other suit on the dispute is precluded. 
Courts share an understanding of the general shape and function of claim preclusion. They do not, however, entirely agree on the limits on the doctrine. What are the 2 competing theories of claim preclusion?
  1. The Primary Right Theory
  2. The Transactional Theory
What is the Primary Right Theory of claim preclusion?
  • Lesser preclusion
  • Minority position
  • Definition: A single cause of action consists of the violation of a single primary right. 
  • Here, accident ∏s can split what would elsewhere be thought of as a single claim into separate suits for property damage and personal injury.
  • Courts in such cases reason that injuries to ∏’s person and her property give rise to separate and distinct claims or causes of action.
  • Rationale: injuries to ∏’s person and her property give rise to separate and distinct claims or causes of action.
What is the Transactional Theory of claim preclusion?
  • Greater preclusion
  • Majority position
  • Definition: A single cause of action consists of all claims arising out of a single transaction or occurrence.
  • Rationale: a single tortious act has caused all of the injuries, so they should all be litigated together. The promotion of judicial efficiency also argues in favor of this rule.
What is the rule against defense splitting?
  • A ∆ must state all his defenses to a claim in the action on that claim (suit #1).  She cannot retain a defense and then assert it in an action to enforce the judgment (suit #2).
  • A claim can include much more than ∏ actually chose to state in his complaint. ∏ cannot "split" his claim - if he sues upon any portion of a claim, the other aspects of that claim are merged in his judgement if he wins, and barred if he loses.
  • Strict application - the rule against claim splitting applies even where the ∏ didn't split her claim intentionally.
What is adjudication "on the merits"?
  • A judgment has claim preclusion effect only if it is “on the merits” or “with prejudice.”
  • Judgments not on the merits:
    • A dismissal for lack of jurisdiction (classic case), improper venue or failure to join a party is not on the merits regardless of the language of the dismissal order.
    • All other dismissals, except for those under Rule 41(a), are on the merits unless the order states otherwise.
  • Thus, a literal reading of Rule 41(b) makes all 12(b)(6) dismissals on the merits unless the order states otherwise.
    • Most courts do not read the rule so literally.
    • When the dismissal order does not state specifically whether the dismissal is on the merits, most courts distinguish between a 12(b)(6) dismissal of a hopeless complaint, which is on the merits, and a 12(b)(6) dismissal of a complaint that can be fixed easily by correcting a pleading error, which is not on the merits. 
What is issue preclusion?
  • Issue preclusion prohibits re-litigation of factual issues actually decided in a prior proceeding regardless of whether the second proceeding is based on the same claim or cause of action
  • Issue preclusion applies only if the issue was actually litigated and decided in the first action.
  • When a case may have been decided on more than one ground but it is impossible to tell which, neither has issue preclusion effect.
  • When a case has been decided on 2 or more alternative grounds, i.e., it is clear that a finding was made on each ground, each has IP effect. 
  • When 2 findings are necessary for the result, each has issue preclusion effect. 
  • When 1 finding sufficient for the result is made and another finding tending to produce a contrary result is made, only the finding leading to the result has issue preclusion effect. 
What is the effect of issue preclusion?
Regardless of which of the parties to an action is victorious, the judgement is conclusive in a subsequent action between them upon the issues actually litigated in the action. A party who seeks to re-litigate one of the issues disposed of in the first trial is precluded from doing so.
Differences between issue preclusion & claim preclusion:
  • Whereas claim preclusion applies only where the "claim" in the second action is the same as the one adjudicated in the first action, issue preclusion applies as long as any issue is the same, even though the causes of action are different. 
  • Whereas claim preclusion prevents the second suit altogether, collateral estoppel doesn't prevent suit, but merely compels the court to make the same finding of fact on the identical issue that the first court made. 
What persons are bound by issue preclusion?
  1. Parties
  2. Privies
Who is a party?
  • One who takes part in the transaction
  • All parties to the first action are bound by the finding on that issue.
Who are Privies? 
  • A privy of a party is a person so closely related to the party that is fair to bind the privy to results in which the party participated.
  • Persons "in privity" with parties to the first action are bound by the finding on that issue
  • Types:
    • Successor in interest
    • Beneficiaries of trust
Who are strangers?
  • A person who was neither a party nor a privy to the first action.
  • A stranger to the first action can never be bound by issue preclusion.
  • Therefore, the stranger - whether he is a ∏ or D - litigate any issue, even if that issue was litigated in the first suit.
What are the rules about offensive / defensive use?
  • Courts are more willing to allow the "defensive" use of issue preclusion by a stranger than they are to allow the "offensive" use.
  • Offensive use refers to use by a stranger who is a plaintiff in the seond action.
  • Defensive use refers to use by a stranger who is a defendant in the second action.
What is the rule from Parklane Hoisery v. Shore?
  1. Stranger may use the results of a prior lawsuit defensively;
  2. Stranger may use the results of a prior lawsuit offensively UNLESS…
    • Permitting offensive use would produce judicial diseconomies (would have discouraged that litigant from joining in the first lawsuit – it would encourage a multiplicity of actions rather than one single action); AND
    • When it is unfair to the defendant, in one of 3 ways
      • Defendant did not have an adequate incentive to litigate fully in the first suit, OR
      • Defendant lacked a procedural opportunity in the first case that would be available in a second case, OR
      • The results from the prior suit are inconsistent w/ the results of even earlier litigation
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