CIVIL PROCEDURE ESSAY EXAMINATION #5

I. Children vs. BB
The request by the children is an attempt to invoke the doctrine of issue preclusion (collateral estoppel). But since the children were not a party to the first case, this would be an attempt at nonmutual issue preclusion. And since the children are the plaintiffs in this second suit, this would be an attempt to invoke offensive nonmutual issue preclusion. The Supreme Court in Parklane ruled that offensive nonmutual collateral estoppel is generally not permitted when the court concludes either (1) that the plaintiff could easily have joined in the first lawsuit (so as not to encourage “wait and see” plaintiffs) or (2) that invoking issue preclusion would be unfair to the party against who it is being invoked such as where the defendant did not have incentive to try its best in the first lawsuit. Lack of incentive could occur where the stakes were much lower in the first lawsuit brought against the defendant or where the second suit provides the defendant procedural opportunities that were not available in the first action that could cause a different result.
The children could have joined in the first suit. Under Rule 20, their claims against BB would have qualified them for joinder. Thus, they cannot invoke offensive nonmutual issue preclusion.
The request by BB to prelude litigation on the issue of causation is also an attempt to invoke issue preclusion. But since the children were not parties to the original action, issue preclusion cannot be invoked against them. To do so would violate the due process clause of the fourteenth amendment.