Civil Procedure II

7 November

• No need to put an affidavit on your notice of removal: you're not asking a court to rule on that. You can save the affidavit for when (and if) the plaintiff moves to remand on the basis of low amount in controversy.
• Indent the first line of each paragraph in a pleading; that's just nice to do.
• Gargallo
  A "margin" account is one where you've borrowed the money to open the account.
• So you say as a defense in your answer that the defendant's claim is barred by claim preclusion (i.e., an affirmative defense). Then motion for summary judgment, with an affidavit (showing the prior claim resolution), and a brief in support.
• Are demurrer dismissals after a chance to amend preclusive? Perhaps so. If you have leave to amend to avoid dismissal, best do it, or you risk preclusion.
• Issue preclusion takes hold on:
  1. Same issue in both cases
  2. Adequate incentive and opportunity to litigate the issue
  3. Actually litigated and determined
  4. Essential to the judgment

  So thinking all the way back to Rush: the incentive to litigate is the strongest argument against issue preclusion.

  Note that a non-party to a proceeding isn't a victim of issue preclusion from that first proceeding.

• An "issue" is a legal/factual proposition plus the procedural setting in which it is to be decided.
• Illinois Central Gulf Railroad v. Parks
  Don't rely on this case in any other state: non-transaction test for claim preclusion is rare and odd.

  But here the court is basically saying the prior verdict of "no liability" doesn't tell us why (i.e., was there contributory negligence, or did he have no injuries?), so they won't attach issue preclusion, because they don't know if the issue has really been litigated or not.

  Interesting: Jessie gets to litigate the question of his negligence twice, just because we don't know how the jury reached its verdict the first time around.

• Tactic to consider: general vs. special verdicts. If you think you're in a position to get some preclusion, you can ask the jury to answer more specific questions: was the railroad negligent (yes/no); if yes, then were plaintiff's injuries caused by the negligence?

  This is a good technique also, if you're concerned about an appeal. You can lock down a bunch of other issues, and thereby limit the scope of the appeal. Of course, if you do this, you're making it harder on the jury, and calling their attention to specific questions.

  When you're just planning out your case (at the pleading stage), start thinking about the jury instructions you'll have to work with, or that you'll request.

• First, look for claim preclusion. Is this the same claim? If not, are there issues that have already been litigated?
• Is an issue "essential to the judgment," if the judgment rests on several grounds? R2J § 27 differs from R1J.

9 November

• No issue is precluded if the judgment rests on alternative grounds. In fact, neither ground should be binding. Surprisingly, though, the R2J comment o to § 27 says appellate affirmation on both grounds should lend preclusive weight.
• "Mutuality of parties" is a requirement for claim preclusion, but it is starting to fade away for issue preclusion.
• Parklane Hosiery Co. v. Shore
  SCOTUS throws in the towel on offensive non-mutual issue preclusion, says some considerations to use in applying the preclusion, says preclusion trumps 7A right to jury trial.

  "Offensive use" should not be allowed when there's no incentive to litigate, a big discrepancy in what is at stake between the two suits, or no opportinity to litigate, etc.

  Has the party to be burdened by preclusion had an adequate opportunity and incentive to litigate the issue?

• Note that if you're worried you'll be a victim of preclusion, you can settle your case (and then be permitted to argue in subsequent actions that you weren't negligent, etc.): a doctrine aimed at preventing inconsistencies in judgment actually causes there to be fewer judgments.
• State Farm Fire & Casualty v. Century Home
  If you've got several previous suits, and they have different results, there's no preclusion.

  But this is a pretty funny thing: if CHC had not won the first case, maybe there would have been preclusion. So if you're the defendant, you want to win the first case: so you want to litigate hard against the weakest possible plaintiff.

  Would have been better to consolidate the cases (Rule 42).

• "Law of the case:" functions within a single case to prevent relitigation of decided points of law. Basically you get a single appellate shot at your contentions, and when that happens, the appellate decision is binding in the case. You can't appeal the same point more than once.
• Judicial estoppel: when a party has taken a sworn position in a prior proceeding, benefited from that, and now in this proceeding wants to swear to something contrary, the court can estop them.
• Repose: collateral attack and reopened judgments:
  Full faith and credit means we honor the judgments of other states: you can't just re-sue in another court once there has been a judgment.

  But what if you find new evidence? You might or might not be able to reopen the judgment. If the other party hid the evidence, that would be a stronger case for reopening than if you just failed to seek it out during discovery. You can only try to reopen a judgment (Rule 60) in the court that rendered the judgment.

• Durfee v. Duke
  Litigation for title to land: is it in NE or MO?

  Doctrine of accretion: if a river moves slowly, title to the land moves with it. If the river moves swiftly, it's the doctrine of avulsion: title stays where it was. So you get to litigate over how quickly was quickly, etc.

• US v. Beggerly
  Modern litigation over the LA purchase.

  This is a Rule 60 case. 60(c) says that you can only reopen for categories (b)(1)-(3) within 1 year. So that fails. Also, the "new" evidence was available and could have been found 12 years prior when the lawsuit was heard.

  This wasn't a "grave and gross" miscarriage of justice: she got some relief 12 years ago.