CIV PRO TWO
PROBLEM SIX

.................................................PART ONE: Res Judicata? B's car smashes into A's car. A incurs property damage and personal injuries. A sues B for property damage and wins. A files another suit against B. A seeks damages for personal injuries based on the same accident. B answers this suit. His answer includes the affirmative defense of res judicata. B also decides to counterclaim against A, alleging that A caused the accident. B then files a summary judgment motion based on his affirmative defense. A files a cross-motion for summary judgment on the basis that B's claim is precluded by the prior litigation. Should the court grant either motion? Why?

.......................................................  ...........FILE ........................................................MEMORANDUM Today To: Law Firm Law Clerk Fm: Senior Partner Re: Jones v. Toce Case -------------------------------- You will see from the attached file that our client, Tracy Toce, appears to be about as reckless as any driver we've ever defended. Because we are the best law firm in town, and occasionally able to walk on water, we have been retained to try to successfully defend her in the suit contained in the attached file Jones v. Toce. (I've encouraged her to park outside of the building during her future office visits, rather than our underground parking facility.) FYI, let's temporarily refer to plaintiff Jones as "A" and to Ms. Toce as "B" for the purpose of this assignment. While I have law students from other area schools employed here at the firm, I am particularly impressed with your knowledge of civil procedure and will thus be assigning you as my personal assistant to help me defend this particular action. Remember that if our client is "an accident waiting to happen," all we can do is try to achieve whatever justice she is entitled to receive. Two motions for summary judgment have been filed. You don't need to look at them right now. You do need to review the above synopsis [Problem Six, Part One, before the "Variation on theme" portion]. Write a memo outlining the substantive law. We'll discuss this matter when we meet, so as to determine the applicable principles. Basically, I need your "take" on an additional point which I did not include in the above synopsis of the first portion of this Problem--because it involves a different case. We represent Ms. Toce in another lawsuit. The facts are similar to the above "A" v.s "B" case. A different plaintiff (named Paul) sued Ms. Toce in that other case, but only for property damage to his car. Paul may have incurred personal injuries during the accident which was the basis for his first of two suits against our client Ms. Toce--but Paul did not claim them in his first action against her. Paul won that first suit , in which he sought property damages. Paul then filed a fresh, second lawsuit, in which he now claims a soft-tissue personal injury to his back. We appear to have a crystal clear basis for prevailing on our res judicata (RJ) defense to Paul's second suit--Paul v. Toast, I mean Toce. Advise me about the following matter: Can Paul possibly overcome our Suit Two RJ defense in that other action?

.......................... Variation on the theme: Suit One: A --- PI & prop damages ---> B & C ..............A's Complaint & B/C Answers (general denials) are the only S1 pleadings ..............Judgment: "We find for defendants B and C." Suit Two: B --- PI & prop damages ---> C .............. Issue: Can C assert S1 as bar to S2?

............................................ PART TWO: Collateral Estoppel? The following scenarios are based on essentially the same facts as Part One above (not the Supplemental File). The question for each/all of the three scenarios below is the same: What issues (if any) were necessarily decided as a result of each particular scenario's given judgment? (Wouldn't such issues then serve as a basis for collateral estoppel in the event of a second suit involving the identical issue?) This exercise will help fill the casebook gap about how to look at the facts and resulting judgment to determine just what issue(s) has been actually litigated in the first suit. One must understand this leg of collateral estoppel in order to move onto analyzing whether the idential issue has been raised in some subsequent lawsuit:

Scenario One: B's car smashes into A's car. A sues B in a contributory (not comparative) negligence jurisdiction for damages sustained in the collision. B pleads and presents three defenses at trial: (1) the statute of limitations expired prior to A's filing; (2) B was not liable; and (3) A was contributorily negligent; A wins the suit ("Judgment for A"). Were any of these issues necesarily decided?

Scenario Two: Same as Scenario One immediately above. Difference: B wins ("Judgment for B"). Were any of these issues necesarily decided?

Scenario Three: B's car and C's car smash into A's car. A sues B. B answers. These are the only pleadings in this first suit. The jury verdict is as follows: "B and C are negligent. Damages are $57,000.13." A then sues C in a subsequent suit. Could either A or C employ collateral estoppel in the second suit?

..FedProb Page