Fed. R. Civ. P.
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Subject Matter Jurisdiction
- questions whether the court has the power to decide the case or controversy before it.
- Federal courts are courts of limited jurisdiction and may only hear certain cases.
- The basis for SMJ must always be pleaded, and neither side can never waive the right to contest SMJ.
- Lack of SMJ can be raised at any party at any time, including the first time on appeal.
Federal Question Jurisdiction
- Exists for a claim that arises under federal law.
- The plaintiffs claim must be based upon a well-pleaded complaint that is based upon federal law.
- The presence of a federal defense is insufficient to give rise to federal question jurisdiction.
- Exists for cases (1) between citizens of different state or citizens of a state and a foreign country (2) where the amount in controversy exceeds $75,000, exclusive of interest and costs.
- Diversity: generally, must be complete diversity between plaintiffs and defendants, except minimal diversity under federal statue - (1) federal interpleader, (2) class actions > $5m, and (3) interstate mass torts.
- Diversity is determined at the time the suit is filed, not at the time the cause of action arose or when the case comes to trial.
Citizenship of parties
- Individuals: state of domicile (actual residence + intent to permanently reside). May only have one domicile at one time.
- Aliens: you automatically get diversity against citizens of foreign countries.
- Representative parties: citizenship of representative party controls, except (1) executor is controlled by citizenship of decedent, (2) guardian is controlled by the citizenship of infant/incompetent.
- Class actions: citizenship of the named party controls diversity questions.
- Corporations: (1) state(s) or countries of incorporation, and (2) state/country of principal place of business (nerve center). Consider all states/countries of incorporation.
- Actions to create/defeat diversity are permitted so long as they are for a genuine reason. Moving permitted if person is changing their domicile and not for court purposes.
- Assignment of the claim is permitted so long as assignment is real and not collusive. Partial assignment of the claim maintains assignors citizenship will count for purposes of diversity.
Amount in controversy
- must be in excess of $75,000 exclusive of interest and costs.
- Only relevant for diversity cases, and any good faith allegation of the amount in controversy will suffice.
- Dismissed for SMJ only when it appears to a legal certainty that recovery in excess of $75,000 is impossible.
Aggregation of claims
- May be permissible to meet the amount in controversy requirement.
- One Pl, One Df: plaintiff can aggregate all claims.
- One Pl, Multiple Dfs: no aggregation across defendants; plaintiff must meet amount in controversy against each defendant.
- Multiple Pls: generally, each plaintiff must meet the amount in controversy, except for when the court exercises supplemental jurisdiction and one Pls harm meets the amount in controversy requirement.
- Compulsory counterclaim may be aggregated. A permissive counterclaim needs to meet the amount in controversy.
- Allows a federal court with subject matter jurisdiction over a case to hear additional claims over which the court does not have jurisdiction. May be exercised when all claims are part of the same case or controversy a common nucleus of operative fact. Same transaction or occurrence. This is in the courts discretion.
- Federal Question: the court may exercise discretion to hear a related state law claim.
- Diversity jurisdiction: supplemental jurisdiction can be exercised in the following circumstances:
- Mandatory counterclaims: always are from the same transaction or occurrence.
- Cross-claims: always share a common nucleus of operative fact, and therefore court may always exercise supplemental jurisdiction.
- Multiple plaintiffs with permissive joinder: if one diverse plaintiffs satisfies the amount in controversy, the other diverse plaintiffs who share common nucleus of operative facts may also have their cases heard due to supplemental jurisdiction.
Supplemental jurisdiction will never be extended to:
- Claims by plaintiffs against additional defendants joined as necessary parties.
- Claims by plaintiff intervenors
- Involuntarily joined plaintiffs.
Removal & Transfer:
- Removal is movement of a case from state court to federal court. Transfer is movement between federal courts.
- Removal: is only proper if the case could have been brought originally in federal court, and only defendants may remove a case (consent by all defendants).
- Must have had SMJ over the case as originally pled (federal question or diversity action).
- Removal procedure: defendant files notice of removal at the federal court which is copied to the state court. When notice is filed with the state, the state case ends.
- A plaintiff can file a petition for remand which is heard by the federal court to determine whether the removal was proper.
- Transfer may be achieved due to forum non conveniens.
- Questions whether the court has the power to adjudicate the rights and liabilities of the defendant. May be exercised (1) in personam (against person), (2) in rem (against the thing) or (3) quasi in rem.
- Constitutional requirement: due process (5th, 14th) requires that there be minimum contacts between the defendant and the forum state such that it is consistent with traditional notions of fair play and substantial justice to sue the defendant here.
- Look for purposeful availment on the protection of the laws of the forum state.
- Look for connections between the defendant and the state.
- Lack of personal jurisdiction must be raised at the first opportunity or it is waived (1) pre-answer motion to dismiss or (2) the answer). Some states rule that it can be waived through substantial participation in the case.
In personam jurisdiction
Generally, federal courts follow PJ of the states in which they sit.
General in personam jurisdiction
- Can be obtained through:
- (1) defendants presence in the state [except to answer summons, brought to state by force/fraud],
- (2) domicile residence with intent to permanently reside,
- (3) consent, either express or implied, personally or through an agent,
- (4) for corporations who are at home in the state incorporated in the state, or principal place of business
- Merely DOING BUSINESS INSUFFICIENT.
Specific in personam jurisdiction
- The court may exercise personal jurisdiction over a defendant when links between the out-of-state defendant and the state.
- Act or omission in the state causing injury to personal property within state.
- Act or omission outside the state causing injury to personal property within the state, provided the defendant conducted activities within the state or introduced goods into the flow of commerce.
- Claim arising out of contract to perform services within the state or pay someone in the state to perform services elsewhere.
- Claim arising out of a contract to ship goods to and from the state, or arising out of shipment of such goods.
- Claim regarding local property.
- Action against director/officer of domestic corporation.
- Contract of insurance where the plaintiff is a resident of the state where the claim arose or the event giving rise to the claim took place.
In rem jurisdiction
Jurisdiction over any real/personal property located within the state.
Quasi-in rem jurisdiction
Plaintiff seizes in-state property in an attempt to force an out-of-state defendant to litigate a related claim.
- Effective service of a summons upon a defendant while in the jurisdiction is necessary to
- (1) establish physical presence in the jurisdiction and
- (2) provide defendant notice.
Used to obtain in personam jurisdiction, and can be achieved through (1) personal delivery, (2) leaving the summons at defendants home, abode or usual place of abode with a person of suitable age and discretion, (3) delivery of summons to an authorized agent, or (4) for foreign citizens, registered mail with return receipt requested.
Special rules for service:
(1) If infant, then infant + parent/guardian; (2) if adjudicated incompetent, then incompetent + guardian; (3) if partnership, then any general partner; (4) if corporation, then officer, director, managing agent or appointed agent; (5) if non-resident motorists, then a state official.
For in rem/ quasi in rem
A diligent effort must be made to locate all claimants to the property. If not all located, notice by publication is permitted.
- A question of administrative convenience - whether this is proper place to hear the case.
- Must be raised at the first opportunity in the pre-answer motion to dismiss or in the answer/response or the issue of venue is waived.
- Generally, federal venue is proper in a district where (1) the defendant(s) resides or (2) where the claim arose (substantial part of events/omissions or substantial part of property). If neither can be achieved, venue wherever the defendant can be served.
- Residence for individuals is domicile, while residence for business entities is wherever personal jurisdiction exists.
- Transfer only appropriate to a district with proper venue except by consent of all parties
Rule of Law with Transfer
- When venue proper but transferred for convenience, the law of the transferor forum control.
- When transferred to new venue where venue properly lies, the law of the transferee forum controls.
- When federal courts hear state claims, they apply state substantive law.
- This includes (1) rules on requirements for claims and defenses; (2) statute of limitations on state causes of action; (3) burdens of proof on state causes of action; and (4) state rules on choice of law.
- When federal courts hear state claims, they apply the federal rules of civil procedure.
- When there is no federal statute or rule on point, the court must refer to the twin aims of Erie:
- 1- Avoid forum shopping
- 2- Avoid inequitable administration of justice.
- If choice of procedure would be outcome determinative, the federal court should apply state law to prevent forum shopping.
- Role of jury in federal court is governed by federal law.
Federal common law
- Federal common law overrides inconsistent state or local law. This is only created when federal courts encounter important federal interests not cover by statute.
- In determining applicable state law, federal courts will (1) follow precedent from highest state court, (2) then predict how the highest state court would rule while giving respectful attention to the decisions of lower state courts.
- Federal common law is judge made federal law that overrides inconsistent state or local law. Federal courts only make common law when they encounter important federal interests that are not covered by statute for example, boundary disputes between states and claim preclusion.
Applying state law in diversity cases.
- Must follow precedent from the highest state court.
- If none, predict how the highest state court would rule by giving respectful attention to decisions of lower state courts.
federal civil action is begun by filing a complaint with the court clerk. For diversity actions, state law controls when an action is begun.
Types of Pleadings
- Complaint: is used to state a claim for relief. Must state a claim under which relief may be sought, pleading all elements.
- Answer: is filed by the party against whom a claim is made. It may contain responses to the allegations, affirmative defenses and counterclaims. Failure to respond to a part of the complaint is deemed an admission, except in the case of damages.
- Reply: the plaintiffs response to a counter-claim.
Claim for Relief
Recovery is not limited by the claim for relief as stated in the complaint, except in default judgments.
- Pleadings need not detail the facts of the plaintiffs case or spell out legal theory in the complaint.
- Plaintiff need only give fair notice of his contention.
- All that is required is a short and plain statement of the claim.
- Iqbal/Twomby requires allegations stated in the complaint state a plausible case for recovery in order to survive MFSC. Allows judges to dismiss cases before discovery in the event if they think that the claim is obviously unfounded.
- Required for complaints of fraud, mistake or special damages.
- The complainant must plead who/what/when/why/how of the complaint.
Motion to Dismiss
- May be used to raise (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) failure to state a claim on which relief can be granted, (5) failure to join a necessary party, or (6) forum non conveniens.
- All motions except lack of SMJ must be made at the outset (answer, pre-answer motion to dismiss) or the issue is waived.
- SMJ can be raised at any time for any reason by any party.
Motion for Judgment on the Pleadings
- Arise when there is no material disagreement or dispute of facts in the pleadings.
- If there is any factual dispute, then proper motion is for summary judgment.
Motion for More Definite Statement
Movant requests a pleading which is more specific- disfavored by the courts.
Motion to Strike
- A motion to delete from the pleadings any scandalous or prejudicial matters that are not relevant to the case.
- May also be used to strike a legally invalid defense.
- A response by a party to any complaint.
- Can be answers in the affirmative (yes), affirmative defenses (yes but), denials (no, I dont know) and should include counterclaims.
- Excuses to misconduct which require notice, such as assumption of the risk, contributory negligence, duress, fraud, release, statute of frauds, statute of limitations, or any other named defenses.
- Must be pleaded in the defendants answer.
- Timing: the answer must be served within 21 days of service of the pleading.
Failure to respond to issue in answer
- Failure to respond is an admission except in cases of damages.
- Failure to respond may be cured by amendment; otherwise, admission is binding.
- The plaintiffs answer to a counterclaim.
- The rules which govern answer also govern reply.
Changes to prior pleadings.
Amendment as a right
- A party may amend pleadings/answer (1) one time (2) within 21 days of service or 21 days of the defendants response.
- If neither is met, the party must ask the leave of the court.
Amendment by leave of court
- When a party can no longer amend as a right, leave to amend must be sought from the court.
- Must be freely granted as justice so requires, and the judge must have a reason to deny the leave to amend (prejudice to other parties, prior opportunity to amend without correction).
Relation Back and the SOL
If a party seeks to amend a pleading after the statute of limitations has run, amendment will be time barred unless the amendment relates back to the original CTO (conduct, transaction, and occurrence) as the original pleading.
Relation back with amendment to add or change a party
If a party seeks to add/change a party after the SOL has run, the amendment will be time barred unless the amendment (1) concerns the same CTO (conduct, transaction, or occurrence) as the original party and (2) the other party knew/had reason to know that the action should have been brought against that party.
Certification of Pleadings
- Most pleadings do not need to be verified (sworn to), but all pleadings and other court documents must be certified (signed) by the attorney or pro se defendant.
- Certification requires a signature, which certifies that (1) there is appropriate legal and factual basis for the filing, (2) attorney certifies that, to the best of her knowledge following a reasonable inquiry, that this is no improper purpose, (3) the legal contentions are warranted by existing law/non-frivolous argument for change in the law, and (4) the factual allegations have evidentiary support or are likely to have such support after discovery.
- Violation of certification requirement can be raised by opposing party or court sua sponte.
- Dismissal of case, Rule 11 sanctions, or attorneys fees may be imposed by the court.
- A joinder by the defendants of a necessary party someone whose participation in the lawsuit is necessary for a just adjudication.
- Absent this party, (1) complete relief cannot be accorded to the existing parties, (2) necessary party has interest in litigation which will be impeded if litigation goes forward without that party, or (3) substantial risk of double/inconsistent liability.
- Feasible if (1) court not deprived of SMJ and (2) court can assert PJ.
- A joinder by plaintiffs where:
- Any number of plaintiffs can join the litigation if (1) claims arise out of the same transaction or occurrence and (2) there is a common question of law or fact.
- Any number of defendants can be joined in the same action if (1) claims arise out of the same transaction or occurrence and (2) there is a common question of law or fact.
- In diversity cases, no party can be joined that would defeated complete diversity.
- If the parties can maintain complete diversity and at least one plaintiff has a claim for the amount in controversy, the court may exercise supplemental jurisdiction.
When an outsider to the suit volunteers to enter a lawsuit primarily concerned with plaintiffs.
Intervention as a matter of right
- When the outsider claims an interest in the subject matter of the lawsuit that, as a practical matter, may be compromised by the disposition of the pending action.
- Must be reasonably prompt.
- Must maintain complete diversity and claim amount in controversy.
- When the outsider makes a claim of common law or fact between intervenor's claim and the main claim.
- Must be reasonably prompt.
- Must maintain complete diversity and claim amount in controversy.
- A process by which the court resolves the problem of competing claims to the same property.
- The stake is the property at issue; the person holding the property is the stakeholder; persons claiming the property are the claimants. The stakeholder can invoke an interpleader action as either a plaintiff or defendant.
Rule 22 Interpleader
- Rule 22 of FRCP authorizes interpleader actions in federal courts.
- Must meet jurisdictional requirements (federal question or diversity jurisdiction).
Federal Statutory Interpleader
- A statute which allows for relaxed interpleader cases.
- AIC $500
- Minimal diversity (any two claimants from different states)
- Nationwide service of process
- Venue proper in district where any claimant resides.
Claims made by the defendant against the plaintiff which is pleaded in the defendants answer.
- A claim against the plaintiff which arises out of the same transaction or occurrence as the plaintiffs claim.
- Supplemental jurisdiction automatically covers compulsory counterclaims.
- Claim will be lost if not pleaded, and follows the relates back rule related to the SOL.
- A claim against the plaintiff which is unrelated to the same transaction or occurrence at issue in the original claim.
- Requires independent jurisdictional base.
- May be brought now or brought later.
- Permissive counterclaims barred by SOL cannot be brought (does not relate back).
- Claims which are asserted against a co-party.
- Cross-claims are never compulsory, but must arise out of the same transaction or occurrence as the main claim to be brought.
- A device by which the defendant brings someone into the suit who is/may be liable to the defendant for all/part of plaintiffs claims against him.
- Impleaded party - 3rd party defendant.
- Original defendant - 3rd party plaintiff.
- Impleader is within courts supplemental jurisdiction no independent jurisdiction basis required. Supplemental jurisdiction cannot be exercised in claims between original plaintiff and 3rd party defendant.
- A suit where numerous plaintiffs sue the same defendant(s) for the same harms suffered.
- Four requirements
- (1) numerousness too many parties to join;
- (2) common question of fact or law;
- (3) typicality of claims by class representatives; and
- (4) adequacy by the representatives lawyer.
- Requires judicial approval of the class.
- Requires plaintiff representatives to be completely diverse from defendants and at least one plaintiffs claim to exceed $75,000.
Federal Class Action Act
Large class actions of 100+ members and more than $5m in damages to proceed with minimal diversity.
Initial Disclosures: parties must disclose (1) names/addresses of persons with potentially discoverable information, (2) copies/descriptions of relevant documents/things, (3) computations of damages claimed, and applicable insurance agreements.
Disclosure of expert witnesses
Parties must disclose (1) names of expert witnesses to be called at trial, (2) qualifications, publications, opinions, information on which opinion will be based, other cases in which they have testified and compensation.
- 30 days before trial, parties must provide a list of witnesses and exhibits.
- Any objections must be made within 14 days after disclosure or are waived except for good cause.
Scope of Discovery
- Generally, the focus of discovery is [b]relevance[/b], not admissibility.
- Scope of discovery is not limited to admissible evidence.
- You can discover admissible evidence or things that may lead to something admissible.
Privileged documents or communications
Anything which is protected by privilege is not discoverable.
Work product rule
- (1) any document or thing (but not information/facts) (2) prepared in anticipation of litigation (3) by or for another party/representative --- creates a qualified immunity from discovery.
- Protected from discovery except where (1) actual need for document/thing and (2) that information cannot be obtained elsewhere.
- Mental impressions/legal theories of attorney are never discoverable.
- A witness can always get a copy of her own statements.
- Testifying experts final report is a mandatory disclosure, and opposing party can discover the report. Communications between expert and witness are not discoverable.
- If an expert who is hired will not testify, report protected discovery unless exceptional circumstances.
Protective orders during discovery
The court may order to compel or restrain discovery for good cause shown.
- Questions which are asked and answered orally under oath.
- Parties are limited to 10 depositions except by leave of court.
- Depositions are limited to 1 day / seven hours except by leave of court.
- Party can be summoned by any notice, but non-party witness must be subpoenaed.
Subpoena duces tecum
- A subpoena to bring documents/things.
- Can be made after mandatory disclosures.
- May be taken before notary public.
- Questions deliver to an officer who orally asks the questions written down beforehand.
- Rarely used; relic of the 1930s.
- Questions asked in writing to be answered under oath in writing.
- Only used against other parties, not witnesses.
- Limited to 25 questions except by leave of court.
- Response required in 30 days.
Discovery and Inspection of Documents and Land
- A request to produce land and permit inspection.
- Applicable only to documents/land under the control of a party.
- Must be described with particularity.
- Response within 30 days.
Physical and Mental Examinations
- Examination by a medical profession.
- Must be (1) against a party (2) for a condition in controversy and (3) for good cause shown.
Request for admissions
- A request by one party to have another party admit a fact within the lawsuit.
- Requests for admissions must be certified.
- Response must be certified (signed by attorney of record) which certifies that (1) reasonable basis and (2) good faith reason to deny the request for admission.
- No preclusive effect outside of the case at hand.
- Response within 30 days or it is deemed an admission.
- Immediate sanctions can be imposed for (1) failure to attend ones own deposition, (2) failure to respond to interrogatories and (3) failure to respond to a request for documents/things.
- Motion to compel: a party should move to compel discovery for all other discovery failure.
- If court grants and opposing party still fails, the moving party may now move for sanctions.
- Must be attended by the attorneys who will conduct the trial.
- The attorney must file pre-trial statements detailing (1) claims and defenses, (2) itemization of damages, (3) requests for stipulations and admissions, (4) list of all witnesses and exhibits, and (5) any other relevant thing.
- Failure to comply means that the non-complying attorney must pay costs and other sides attorneys fees.
Judgment on the pleadings
Rarely used; appropriate only where pleadings agree on all facts.
- Plaintiff whose case is dismissed without prejudice may bring a subsequent case.
- Plaintiff has a right to one voluntary dismissal if dismissed prior to answer/MSJ.
- Plaintiff must ask for leave of court after (1) first voluntary dismissal or (2) defendant files answer/MSJ.
- Dismissal due to lack of jurisdiction, improper venue or failure to join a necessary party is without prejudice.
Dismissal with Prejudice
- Unless dismissed due to jurisdiction/venue/failure to join necessary party, a dismissal by the court is with prejudice and is treated as an adjudication on the merits.
- Given full preclusive effect (res judicata), and may be imposed for failure to prosecute or comply with a court order. Reviewed under abuse of discretion.
Motion for Summary Judgment
- May also be partial summary judgment.
- Granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
- No reasonable juror could find the other way.
- Must be supported by particular record, including: depositions, answers to interrogatories, documents, affidavits, stipulations. Must be sworn statements cannot be pleadings. Sworn statements must be based on personal knowledge.
Trial By Jury
- For injunction/specific performance, no right to jury trial.
- If damages, right to jury trial.
- When both legal and equitable issues, try the legal issues first.
- Demand for jury trial must be made no later than 14 days after service of the answer or other pleading directed to the issue on which the jury trial is sought.
- In selecting a jury, each litigant gets unlimited peremptory challenges for cause and three peremptory challenge not for cause cannot be racial/gender.
Motion for Judgment as a Matter of Law (Directed Verdict)
- A motion for summary judgment after the trial has begun.
- Viewing the evidence in the light most favorable to the opposing party the evidence cannot support a contrary verdict and the moving party is entitled to judgment as a matter of law.
- The credibility of the witness is not sufficient to support JMOL.
- Typically made by defendant at conclusion of plaintiffs evidence, and again by both sides at the close of all evidence.
Renew Motion for Judgment as a Matter of Law (JNOV)
- A motion for JMOL made at close of all evidence may be renewed after the verdict.
- Failure to move for JMOL before close of evidence precludes RJMOL condition precedent.
- Same standard as original JMOL.
Motion for a new trial
- A party may move for a new trial when there are grounds to support the new trial, such as (1) errors in trial which rendered judgment unfair; (2) newly discovered evidence; (3) prejudicial conduct by lawyer, party or juror; or (4) remittitur, which is an excessive verdict and the winning party refused to accept a reduction in the award.
- Court must specify reasons for granting a new trial in its order.
- Reason to grant a new trial is a question of law de novo review.
- Most of the grounds are within sound discretion of the court abuse of discretion.
- Generally, appeals lie only from final judgments where the court has resolved all the claims of all the parties on the merits.
- Partial final judgment of all of the issues for one of the parties is immediately appealable.
- Judgment final when entered by the clerk on the courts docket, and notice of appeal must be filed in the trial court within 30 days of entry of judgment.
- A timely post-judgment motion tolls the 30-day limit.
- Interlocutory orders are appealable as a right following an injunction or any order that changes/affects possession of property.
- Discretionary interlocutory appeals are permitted by leave of court when the trial court issues a certificate for the appeal stating (1) it involves a controlling question of law and (2) the immediate appeal may materially advance the termination of litigation.
Collateral Order Doctrine
- Authorizes immediate appeal of orders (1) separable from and collateral to the main suit, and (2) too important to deny immediate review.
- Typically denial of forum non conveniens.
A writ which provides appellate review of an order which is an abuse of authority.
Class actions and appeals
Appellate courts have discretion to hear interlocutory appeals from order certifying or refusing to certify a class action.
Standards of Review on Appeal
- Matter of law: review is de novo with no weight given for the underlying analysis of law.
- Findings of fact: jury verdicts must be sustained if supported by substantial evidence. Judges findings of fact must be affirmed unless clearly erroneous.
- Matter of discretion: review for abuse of discretion. Any reasonable decision will be upheld, even if the appellate court does not agree with the decision itself.
Full Faith and Credit
Courts in the United States must give full faith and credit to judgments rendered in courts of other states/district when the original court had proper jurisdiction over the case.
Preclusion Analysis process
- Is the claim in the second suit precluded by the prior adjudication?
- Is the issue in the second suit precluded by the prior adjudication?
- A final judgment on the merits of a claim bars re-litigation of that claim by the same parties or parties with privity with the parties.
- Includes issues raised in the prior litigation and claims that should have been raised.
- Requirements: (1) final judgment on the merit in the first suit; (2) second suit is between same parties/successors in interest; and (3) second suit must involve same claim claim/cause of action.
- Final judgment on the merits includes default judgments, summary judgments and dismissal with prejudice.
- One claim includes all legal theories to recover for harm arising out of a single transaction or occurrence. Includes both tort and contract claim, unless state law distinguishes. Breach of installment sales can be brought multiple times provided that the debts in the second suit were not due and owing at the time that the first suit was filed.
- Requirements: (1) same issue of fact must arise in two suits; (2) the issue was actually and necessarily decided in the first suit, and (3) the party who is precluded must have been a party to the first suit.
- Same fact or issue: may be different claims which involve the same factual issue in common.
- Actually and necessarily decided are issues which are actually litigated. A default judgment is CP but not IP because no actual decision.
- Precluded party must have been a party to the first suit or a successor in interest. The moving party need not have been party to the prior action.
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