The Doctrine of Claim Preclusion

Claim Preclusion and Res Judicata

The Doctrine of Claim Preclusion

A plaintiff injured in a car accident sues the other driver for her arm injury and loses when the jury finds her contributorily negligent. She then sues the same driver for head injuries from the same accident, perhaps with new grounds for recovery. The second suit fails. The first judgment bars her from raising the same cause of action again.¹ The doctrine at work is claim preclusion.

A dissent in Whole Woman's Health v. Hellerstedt, drawing on Supreme Court precedent, states the rule in six conditions. Litigation of a claim is barred if (1) the same or a closely related party (2) brought a prior suit on the same claim, (3) a court of competent jurisdiction adjudicated that suit, (4) the court decided it on the merits, (5) a final judgment was entered, and (6) no ground, such as fraud, exists to invalidate the judgment.² In shorthand, res judicata is an affirmative defense. It bars the same parties, or parties in privity with them, from litigating a second suit on the same claim, or on any other claim arising from the same transaction or series of transactions that they could have raised in the first suit but did not.³

Res judicata has also served as a general name for every way one judgment binds a later case, a usage that lumps together two different effects. One forecloses matters that were never litigated because they should have been advanced in the earlier suit. The other forecloses relitigation of matters that were litigated and decided.⁴ The first has gone by the names “true res judicata,” “merger,” and “bar,” and the second by the name “collateral estoppel.” Professor Allan Vestal has long urged the clearer labels claim preclusion and issue preclusion, and this chapter adopts them. It concerns claim preclusion.

Claim preclusion traditionally divides into merger and bar, which differ only in who won the first suit. When the claimant won, the claim is extinguished and merges into the judgment, and a new claim to enforce the judgment replaces it. When the defendant won on the merits, the claim is extinguished and nothing replaces it; the claimant is barred from raising it again.⁵ Merger works on the winner in the same way. A plaintiff who recovers damages for a broken arm cannot later sue for facial lacerations from the same accident, because the second claim merged into the first judgment and the law forbids splitting a cause of action.⁶ A plaintiff who sues for $1,000 and receives a $500 judgment cannot start a new suit for the other $500.⁷

Every claim-preclusion problem involves two lawsuits. Case one is the suit that ended in the judgment, and case two is the later action in which the defendant invokes that judgment. The doctrine operates only between separate actions, so it does not govern a motion for a new trial or an appeal within case one, which are further proceedings in the original action.⁸ Preclusion is also an affirmative defense. The defendant in case two must raise it in the manner Rule 8(c) specifies, and most courts treat a defense not so raised as waived.⁹

Most jurisdictions require four prerequisites: a final judgment, a judgment on the merits, the same claim in both suits, and the same parties in the second action, or parties who were represented by a party to the first.¹⁰ The party asserting the defense must show them, and the hardest disputes usually concern whether the claims are the same and whether the first judgment was on the merits.¹¹

The same-claim requirement does the most work, because a claim need not have been litigated to be barred; it need only have been available to the plaintiff in the first suit.¹² Schulansky recovers $7,000 from Ronan in a contract action over addition work. She cannot sue Ronan again on the contract, and she cannot sue him for fraud connected with the same work, though she never pleaded fraud, never tried the case on that theory, and never thought of it. Her lawyer had better think of such theories sooner rather than later.¹³ Merkle shows the same reach. She sues Rico for personal injuries from a collision, then sues Rico again for damage to her car from that collision. Most courts preclude the second suit, because both harms arose out of the same occurrence and Merkle may not take a second bite at the apple.¹⁴ A suit over a different accident on a different date would rest on a different occurrence, and the first judgment would not reach it.

That reach explains how claim preclusion interacts with the joinder rules. Rule 18 purports to allow a plaintiff to join claims, but res judicata in fact requires that claims be either raised or foregone, and grouping them in one suit serves the judicial system's interest in realizing some benefit from the litigation.¹⁵ The strictness is fair because the Rules of Civil Procedure are so generous in the first suit. With amendments liberally allowed, a plaintiff has ample means to present every theory at the outset, and the threat of preclusion pushes litigants to use those means, since they know they will not get a second chance.¹⁶

Claim preclusion binds the parties even when the first judgment was wrong. Rizzuto tried a negligence case against Allston and lost on a jury verdict finding Allston not negligent. He sued again on the same claim, arguing that evidence had been wrongly excluded at the first trial. The second suit is barred. Final judgment was entered on the merits, and if the exclusion was improper, Rizzuto should have appealed in the first suit rather than relitigate in a second.¹⁷ Judicial determinations are not infallible, but appellate procedure, not repeated suits, is the cure for error, and nothing suggests that a second decision would be more accurate than the first.¹⁸

Several interests justify accepting that result. The Romans said the state had an interest in an end to litigation, and a defendant who has fairly met a suit is entitled to repose rather than endless suits over one dispute.¹⁹ Judicial resources are finite, and every dispute reheard delays another, so claim preclusion serves the public at large. It also avoids inconsistent results and the embarrassing question of which of two conflicting decisions should prevail.²⁰ Beneath these reasons lies a more basic one. If disputants could reopen their adjudicated disputes, litigation would never end and judicial authority would never begin.²¹ Finality is therefore more than good policy; it is a necessary condition for the existence of a judiciary.²²