Claim Preclusion. April 7. Distinguishing Claim & Issue Preclusion.
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Claim preclusion deals with whether you can file a second suit based on the same claim filed in an earlier lawsuit; issue preclusion deals with whether you can re-litigate an issue that was litigated in an earlier case. Claim & issue preclusion governed by the common law (not the FRCP)
In dealing with a claim preclusion issue make sure you separate the claims into “Case one” and “Case two” and make sure you understand what the claims were in each case as well as the outcome of the earlier case.
Hypo: A doctor is sued. Her insurance company handles the defense. Regardless of what the doctor wants, the insurance company decides whether to accept settlement and other key issues - is insurance company in subst’l control? Why/why not?
To determine if subst’l control, look at all the facts/circumstances to see if there is a "reasonable inference of a nonparty’s potential or actual involvement as a decision maker in the earlier litigation."
Modern view: Any judgment against the CLAIMANT except for ones based on: lack of jurisdiction, improper venue or nonjoinder is on the merits. Most courts interpret “jurisdiction” as including failure to satisfy a precondition of the suit (e.g. failure to exhaust admin. remedies warranting a dismissal = not on merits dismissal)
Older view: (minority) If the dismissal did not reach the merits of the dispute, then it does not have a preclusive effect.
To make sure that a dismissal does not have preclusive effect - get the court to note that the dismissal is WITHOUT PREJUDICE. If the order does not say “w/out prejudice”, fed courts and most state courts act as if it was w/prejudice & will consider it a dismissal on the merits!!