Non-mutual collateral estoppel:
- GEN (narrower): precludes relitigation of a particular issue litigated and determined prior.
- (1) Case 1 ended in a valid judgment on the merits.
- (2) Same issue was actually litigated and determined in Case 1.
- (3) Issue was essential to judgment in Case 1.
- NOTE: IP can only be asserted against the one who was a party to Case 1.
allows a non-party to previous action to invoke collateral estoppel against a party who litigated and lost on an issue in a prior action. Where non-mutual issue preclusion is permitted, it will always be applied AGAINST a person that was PARTY to the earlier litigation or a person in PRIVITY with that person.
- Offensive Non-Mutual Estoppel: A new P seeks to use a finding from a prior action (same D) to impose liability on a D who was in a prior action. Court has DISCRETION on this matter:
- >> Did D have a full and fair opportunity AND incentive to litigate in the first case? Could D foresee future suits?
- >> Could P have easily joined (intervened) in the first suit? If OPP to INTERVENE, MUST intervene or LOSE IT. Fear of the sit and wait effect.
- >> Will it create inconsistent judgments on D?
- NOTE – look for signs of unfairness to D.
- Defensive Non-Mutual Estoppel: D seeks to prevent P from asserting a claim that the P has previously litigated against another D.
- >> This is ALMOST ALWAYS fully permitted – P originally gets to choose the forum and the D against whom to litigate. Allowing D to do this here DECREASES litigation and gives incentive for P to join all potential Ds in first action if possible.