8/3/2019 Claim Preclusion.notes
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Civil Procedure Professor Gary Maveal
Law 115-75 April, 2010
Some Further Notes Toward
Summarizing Preclusion Doctrine
I. Claim preclusion - We should now appreciate the many ways in
which the doctrine
(typified by 24 of the Restatement of Judgments 2d, p. 674)
precludes claim splitting.
A. A later claim is the same when it is merely a different
theory of recovery thanthe first suit.
E.g., first suit in contract then second on same facts in
quantum meruit.B. A later claim is the same if it seeks different
damages for same wrong.
E.g., first suit is claim for negligence, seeking damages to
car; second isclaim for negligence, seeking personal injury
damages.
C. A later claim is the same if it merely seeks a different
remedy for the same wrong.
E.g., first suit is claim for enjoining charging out-of-state
tuition; secondsuit is to recover overcharges for having charged
out-of-state tuition.
II. Revisiting finality. Its possible that some judgments that
are not strictly final
decisions might nevertheless trigger issue preclusion.
A. The Restatement of Judgments 2d provides as follows: 13
Requirement of Finality- The rules of res judicata [i.e., claim
preclusion]
are applicable only when a final judgment is rendered. However,
for purposes ofissue preclusion (as distinguished from merger and
bar), "final judgment"
includes any prior adjudication of an issue in another action
that is determined tobe sufficiently firm to be accorded conclusive
effect.
B. Claim preclusion: Orders and judgments are therefore
generally not final if not
embodied in a judgment. An order granting partial summary
judgment is not finalunless and until it is incorporated into a
final appealable judgment in the case. Recall
1291. Similarly, if the parties settle the action after the
court enters an order
granting partial summary judgment, a stipulated dismissal (per
Rule 41(a)(1)(A)(ii))
would not give constitute a judgment. Cf.Jarosz v. Palmer, 436
Mass. 526, 766
N.E.2d 482 (2002).
C. Issue preclusion: Some non-final findings of fact fit all
that doctrines elementsand arguably give rise to collateral
estoppels even if a finding is non-final. E.g., inParklane, if the
trial court in the SECs action had entered a preliminary
injunctionafter its evidentiary hearing (instead of a declaratory
judgment), the Shore plaintiffswould have a good argument that
estoppel still lies against Parklane. Assuming the
issue was fully and fairly litigated and essential to the
injunction in the governments
favor, the efficiencies the doctrine promotes seem to be present
in the very same way.
