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Civil Procedure

Terms in this set (102)

This question is governed by the Washington (WA) Rules of Civil Procedure.

The assertion of personal jurisdiction over a defendant must be both constitutional and authorized by statute.

Constitutional Due Process requires either consent (implied or express, but not corp. appointment of agent), domicile , physical presence , OR sufficient minimum contacts with the forum state such that the maintenance of the suit does not offed traditional notions of fair play and substantial justice. Minimum contacts are sufficient if the defendant purposely avail himself to the privileges of the forum state, could reasonably foresee being haled into a Washington court, and if maintaining jurisdiction would be fair and reasonable considering the burden on the defendant and the interests of any non-forum state against the interests of the plaintiff and Washington state.

General Jurisdiction

If the cause of action is unrelated to the defendant's contact with the forum state, then the contacts must be systematic and continuous.

Specific Jurisdiction

If the cause of action arises from the defendant's contacts with the forum state, even one contact with Washington may be sufficient to meet the minimum contact test, as long as the litigation arose from that contact.

Statutory Basis under Washington's Long Arm Statute for PJ

Washington's long arm statute provide statutory authority to assert jurisdiction over nonresidents who, within Washington, transact any business, commit a tort, use/own/possess property, contract to insure persons or property, intercourse to produce a child, or once lived while married.

Notice (service of process)

Notice must follow both constitutional and statutory procedures. The US Constitution requires service of process that is reasonably calculated to give actual notice of the lawsuit. Washington's service of process rules and statutes are designed to meet the constitution.

Service of Process Inside Washington

Personal service in Washington must include a summons and copy of the complaint. Service to individuals must be made in-hand by the sheriff, deputy sheriff or a non-party over the age of 18, or left at the defendant's usual place of abode with someone of suitable age and discretion who resides there or is its proprietor. Service to resident corporations must be made in-hand to the president, registered agent, corporate secretary, cashier (treasurer), managing agent, or office assistant of any of those people. Service to a non-resident corporation doing business in Washington may be made in-hand to any agent, cashier, or corporate secretary.

Defendant Unavailable for Service

If the defendant is unavailable for service and the plaintiff states such in an affidavit, the defendant can be constructively served by (1) publication for six consecutive weeks in a newspaper of general circulation in the county where the action is pending OR (2) registered mail if the plaintiff shows that such service is just as likely to notify the defendant of the lawsuit as service by publication.

Personal service outside of Washington

Under WA's long arm statute, personal service outside of Washington must be made in the same manner as if the service were made inside the state. If defendant prevails, he may be awarded attorneys' fees for the extra burden.

The Nonresident Motorist Statute

allows service of process (2 copies) on the Secretary of State, a copy by registered mail to the defendant's last known address or personal service outside of WA, and an affidavit of inability to personally serve.

Waiver of Service

Insufficient service must be raised at the first possible opportunity (pre-answer motion or answer) or during collection on default judgment, or else is waived.

District Courts SMJ

District courts have subject matter jurisdiction over claims in law and equity that do not exceed $75,000, except for actions involving title to real property, foreclosure actions, false imprisonment, libel or slander.

Superior Courts SMJ

All Washington superior courts have SMJ over all claims in equity and claims at law where the amount in controversy exceeds $300, subject to a few exceptions.

Washington Court of Appeals SMJ

Washington courts of appeals have appellate jurisdiction over all superior court decisions.

The Washington State Supreme Court SMJ

The WA Supreme Court has discretionary appellate jurisdiction over decisions handed down by the WA Court of Appeals, with additional reach down power to hear superior court actions.

Defenses to SMJ

to SMJ may not be waived and can be asserted at all levels and times.

Venue

Venue refers to the proper county or counties in which a lawsuit may be brought and defendants use venue challenges to seek dismissal from the case.

Venue for Local Actions

For local actions involving title or possession of real property, venue is proper in the county where the property is located.

Venue for Transitory Actions

For a transitory action against a resident defendant, venue is proper in the county where any of the defendants' reside or where the personal injury or property damage claim arose. For nonresident defendants, venue is proper where the plaintiff resides, where the defendant was served, where the personal injury or property damage claim arose, or where the Long Arm Statute was satisfied. For Corporations (WART), venue is proper where the work was performed, the agreement was entered into, the entity resides (transacts business, office, or servable officer), or the tort occurred.

Waiver of Venue

Improper venue is waived if not raised at the first opportunity (pre-answer motion or answer).

Changing Venue

By statute, a Washington court may transfer an action to a proper or more convenient county when original venue is improper, an impartial trail is unavailable, for the convenience of witnesses or in the interests of justice, when the judge is disqualified, or by stipulation of the parties.

Forum Non Conveniens

allows a Washington court with PJ, SMJ, and proper venue to dismiss if another state or county is a substantially more convenient or appropriate, provided that the alternative forum has SMJ AND the defendant waives any defenses relating to PJ or statute of limitations. Courts conduct a balancing test, weighing the availability of witnesses, convenience of witnesses, the interests of the local community in the case, and the burden on the defendant of litigating in WA.

A civil action is commenced...

A civil action is commenced by either filing the complaint or serving a signed summons and complaint on the defendant.

Statues of Limitations Are Tolled...

The statute of limitations for X is... A cause of action generally accrues from the date of the commission of X... An action in negligence will accrue when the plaintiff knows, or in the exercise of diligence should know, that he has suffered an actionable injury. The statute of limitations is tolled by either filing OR service. The plaintiff then has 90 days to effect the other, otherwise it is as if action was never commenced for SoL. Proper timely service on one defendant tolls the running of the SoL for all defendants.

Before commencing a tort action for damages against a city or county

the plaintiff must first present and file the claim administratively with the city or county and then wait 60 days before filing with the court. The SoL is tolled during the 60-day waiting period.

Temporary Restraining Orders

A TRO may be granted upon a clear showing of fact that the applicant will suffer irreparable injury, is likely to prevail on the merits, and there is no adequate remedy at law. Every TRO granted without notice must expire in no greater than 14 days, except for good cause shown.

Complaint elements

A proper complaint must state the real parties in interest, state a claim upon which relief can be granted, and include a prayer for relief. A plaintiff may not state the amount of damages sought. More particularity is required for fraud and special damages.

Special Damages

Special damages include medical bills, lost wages, lost profits, and all contract damages aside from expectation damages.

General Damages

General damages include pain and suffering and expectation damages.

Answer timing and elements

An answer must be filed within 10 days of court disposition on a pretrial motion, 20 days from personal service in WA, 60 days from personal service outside of WA or date of first publication or non-resident motorists for date of service on secretary of state, and 90 days for mail service. It must admit, deny, or state lack of sufficient information to all allegations, otherwise those allegations are deemed admitted. It must list affirmative defenses, subject to waiver (SoL, comparative fault, fraud, etc.).

CR 12(b) defenses

CR 12(b) defenses may be raised by pre-answer motion or in the answer and include (1) lack of SMJ, (2) lack of PJ, (3) improper venue, (4) insufficient process, (5) insufficient service of process, (6) failure to state a claim upon which relief can be granted, and (7) failure to join a necessary party.

CR 11 Certification Applies to

every pleading, written motion, or legal memo filed or served in litigation. A signature certifies that to the best of the signer's knowledge, information and belief, formed after reasonable inquiry, the pleading motion is well grounded in fact, warranted by existing law, not presented for an improper purpose, that all denials are warranted on the evidence. A judge has broad discretion as to whether to sanction and the type and extent of sections.

Substantive 12(b) Objections timing

Substantive objections include 12(b)(6) motions for failure to state a claim upon which relief can be granted (legal sufficiency of a claim); motions for judgment on the pleadings (like 12(b)(6) after answer); motions to strike (like 12(b)(6), but raised by the plaintiff against a defendant's defense).

Procedural 12(b) Objections timing

Defenses of lack of PJ, improper venue, insufficient process, and insufficient service of process are disfavored and waived if not raised in a pre-answer motion or answer. A defense of lack of SMJ is favored and can never be waived or lost.

12(b)(6) and (7) timing

Defenses of failure to state a claim upon which relief can be granted and failure to join a necessary party are not waived by failure to plead, and can be raise at any time through trial.

CR 12(e) motion for a more definite statement, allowing amendment.

don't foget

CR 15 Amendment of Pleadings

is generally allowed unless the opposing party can show prejudice that can't be remedied. As a matter of right, a plaintiff may amend before the answer is filed and a defendant may amend within 20 days after the answer was served. With leave of the court, "leave shall be freely given when justice so requires." And, amendments during and after trial are allowed where issues or claims were tried by express or implied consent of the adverse party.

SoL "Relation Back"

An amended complaint may "relate back" in time to the filing of the original complaint for SoL purposes. A new claim against existing parties must arise from the same transaction or occurrence as the original pleading. A new party may be added if the amendment arises from the same transaction or occurrence as the original pleading and if prior to the SoL running, the party received notice of the action and action would have been brought against them but for a mistake.

CR 18 Plaintiff Original Claims

a plaintiff or anyone in the position of a plaintiff may assert as many claims as he or she has against a defendant in the lawsuit, even if unrelated.

CR 13 Counterclaims

A compulsory counterclaim arises out of the same transaction or occurrence as the plaintiff's claim and is mandatory. A permissive counterclaim doesn't arise out of the same transaction or occurrence as the plaintiff's claim and is not mandatory.

CR 13 Cross-Claims

A claim by one party against a co-party, usually between defendants, must arise out of the same transaction or occurrence as plaintiff's claim against defendant, but is permissive.

CR 42 Claim Severance

allows a judge broad discretion (convenience, fairness, etc.) to conduct separate trials of any claims, counterclaims, or cross-claims that the rules allow to be joined.

CR 20 Permissive Joinder of Parties

For permissive joinder of parties, plaintiffs must assert, and defendants must have had asserted against them, a right to relief arising out of a single set of transactions or occurrences and common questions of law or fact are present.

CR 19 Compulsory Joinder of Parties

is used by existing defendants to force plaintiffs to join another plaintiff or dismiss the case. A court will dismiss the case if a necessary party cannot be joined and that party is determined to be indispensable (with leave to refile). A missing party is necessary if complete relief can't be afforded those already parties, the person to be joined claims an interest that will be impaired or impeded if not joined, OR an existing party will be subject to multiple/inconsistent obligations if the person is not joined. A person is indispensable if unavoidable prejudice will occur in the party's absence.

CR 24 Intervention

A party may intervene as of right where it claims an interest relating to the action and proceeding without that party will impair that interest, unless adequate representation. A court may grant permissive intervention if a common question of law or fact exists between the original action and the interveneor's claim or defense, considering whether intervention will delay or prejudice the rights of original parties.

CR 14 Impleader

A court may grant permissive impleader if the existing defendant alleges that a third party shares a derivative liability under indemnity, contribution, subrogation, or warranty.

CR 42 Severance of Parties

allows a judge broad discretion to sever parties based on efficiency, convenience or economy.

CR 42 Consolidation

allows a judge broad discretion to join separate actions for efficiency, convenience or economy.

Class Action Certification Prerequisites (CANT)

The four requirements for a proper class action are: commonality (questions of law or fact are common to the class), adequacy (representative parties fairly and adequately protect class interests), numerosity (numerous parties make joinder of all member impracticable, 25 too small, 40 sufficient), and typicality (claims or defenses of the representative parties are typical of the rest of the class).

Class Action Types

Four types of class actions may be certified, including instances where separate actions would create risk of inconsistent standards of conduct, where separate actions would impair interests of nonparties, where injunctive relief would necessarily apply to the entire class, or where class action is the best way to adjudicate the claims.

Class Certification Procedure

The court must make a pretrial decision as to whether a class action is appropriate, considering the need for individuals to control their own suits, the extent of litigation already commenced, the desirability of concentrating the action, and the difficulties in managing a class suit. Common interests must predominate over questions affecting only individual members.

Discovery

A party may serve requests for discovery with the complaint and summons. Parties may obtain discovery regarding any matter, not privileged, which is relevant. Privileged communications and attorney work product are generally protected from discovery unless waived. The court may limit discovery when the discovery is unreasonably cumulative or unduly burdensome or expensive.

CR 26(b)(5) Experts

The identity of a testifying expert and the substance of the testimony are discoverable through interrogatories and depositions. Ex parte contact with opponents expert is improper

CR 26(c) Protective Orders

Courts have broad discretion to enter protective orders if justice requires protection of a party from annoyance, embarrassment, oppression, or undue burden or expense. The trial court will weigh the need for the confidential material in the action versus the harm that will occur should disclosure be ordered.

CR 30 Depositions

Oral depositions are property discovery requests for persons who are parties to the case. Leave of court is required if the plaintiff seeks to take a deposition prior to 30 days after service of summons and complaint. Deponents are entitled to written notice. A subpoena is required to compel the attendance of a nonparty at a deposition. A subpoena duces tecum is required to compel a nonparty to produce documents.

Location of depositions

Washington residents must be deposed in the county where they reside, they are employed, or where they transact business in person. Nonresidents must be deposed where they were served or w/in 40 miles of service.

Improper Practices during depositions

Deponents must answer questions, even on objection, unless the objection is based on privilege. Improper practices include asking questions clearly beyond the scope of discovery, coaching through objections, instructing not to answer when privilege not involved, and privately conferring after a question when privilege is not involved.

CR33 Interrogatories

Interrogatories are written questions from one party to another party that must be answered under oath, are only available as between parties, with no set limit on number. Both parties must respond or object within 30 days after service of interrogatories, except the defendant has 40 days if served with the summons and complaint. Each party has a duty to investigate prior to response, which must be complete and not evasive. Responding party may produce business records in lieu of answering an interrogatory when the information requested requires compilation, audit or summary of business records, but only if the burden of ascertaining the information is the same for both parties.

Objections include to interrogatories

overbreadth, vagueness, burdensome, oppressive, irrelevant, or seeking privileged information.

CR 34 Request for Production

Requests for production are written requests from one party to another party for the production of documents and things (described with reasonable particularity) or entry onto land for inspection. Each party has a duty to produce documents in that party's possession or control. Both parties must respond or object within 30 days after a request for production, except the defendant has 40 days if served with the summons and complaint. Non-party production requires subpoena duces tecum.

CR 36 Request for Admission

Requests for admission are written requests for admission of the truth of statements regarding facts or opinions relevant to the case, are available only for parties, and are binding for trial except by leave of court. Parties have a duty to investigate, and may respond with admission, denial, lack of information, or objection. Both parties must respond or object within 30 days after request for admission, except the defendant has 40 days if served with the summons and complaint. Failure to respond is treated as a binding admission.

CR 35 Mental or Physical Exams

Mental and physical examinations are allowed only by court order and only against parties if the condition is in controversy. A party subject to examination has an unconditional right to the subsequent report, but then waives all privilege to any other medical records related to that condition.

CR 37 Discovery Sanctions/Remedies

The trial judge is given wide discretion in fashioning remedies for a complete failure to respond to discovery. Fisons sets guidelines to ensure sanctions are proportionate to the violation within the purpose and spirit of civil discovery. Prior to sanctions, parties must confer regarding motion, one party must make the motion to compel (judge may award costs of motion to moving party), and the other party must fail to comply with court order compelling discovery. The court may compel disclosure or discovery, find contempt, exclude evidence, enter judgment, and award costs and fees.

CR 26(g) Certification

discovery requests, responses and objections must be signed by the attorney or the unrepresented party, certifying that to the best of the signer's knowledge, information, and belief, formed after reasonable inquiry, the discovery request, response, or objection is consistent with discovery rules and warranted by existing law or good faith argument for change, not interposed for any improper purpose, and is not unreasonably burdensome or expensive. Sanctions are mandatory, but within the judge's discretion, monetary or non-monetary.

CR 16 Pre-Trial Conference

are not mandatory, but in judge's discretion, require a pretrial order memorializing the decisions made and actions taken, which controls the course of subsequent litigation and takes precedence over the pleadings.

Impartiality of Judge

A judge should remove himself for personal bias. If the judge does not remove himself, either party may petition for removal.

CR 41 Voluntarily Dismissal

A plaintiff has the absolute right to dismiss once without prejudice before the plaintiff rests case. Written stipulation of settlement, usually with prejudice. With leave of court when plaintiff seeks voluntary dismissal after plaintiff rested case, upon showing good cause.

CR 41 Involuntary Dismissal

for failure to comply with rules or orders (at judge's discretion, with or without prejudice), for failure to prosecute within 12 months (without prejudice, but SoL runs as if never filed), or for failure of proof at bench trial (with prejudice if the plaintiff failed to prove case, like judgment as a matter of law).

CR 56 Summary Judgment

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law, with evidence viewed in the light most favorable to the nonmoving party. Any party may move for summary judgment at any time. Once moving party makes showing of no genuine issue, the burden shifts to the nonmoving party to show there is a genuine issue of material fact.

CR 55 Default Judgment

A default judgment may be sought by plaintiff when the defendant has failed to respond to the complaint.

Grounds for Default Judgment

An entry of default will be issued if the defendant failed to plead or otherwise defend (upon motion and supporting affidavit by the plaintiff). If the defendant appeared in the case, he is entitled to 5 days written notice prior to entry of default. No notice is required if defendant did not appear.

Effect of Default Judgment

Upon entry of default (not yet judgment), defendant is deemed to have admitted all allegations as to liability, leaving only determination of remedy and entry of default judgment.

Default Judgment Awards

If the plaintiff is seeking a sum certain, default judgment can be entered on plaintiff's motion and affidavit on amount due. If plaintiff seeking an amount not certain, then judge will hold hearing on the remedy with the plaintiff providing evidence as necessary. A default judgment may not grant more or a different type of relief than was requested in the complaint.

Defenses to Default Judgment

A default judgment may be vacated based on one of the 12(b) defenses, such as insufficient service and improper venue.

Right to a Jury Trial

Washington's constitution provides a right to jury trial as at common law as of 1889. Either party may demand a jury trial in writing at or before the case is called to be set for trial, otherwise waived. The overall nature of the action governs whether there is a right to a jury trial, with the nature of the remedy being the most important determinant.

Actions triggering (or not) jury right

Actions at law trigger the right to a jury trial (tort or K where monetary damages). Actions in equity likely do not trigger right to a jury trial (K action for specific performance, other injunctive relief sought, family status, and suits against trusts or trustees even involving damages). Mixed legal/equitable claim suits, the judge will look at the "gist" of the action to determine whether it is more legal or more equitable (broad discretion). The case will NOT be spilt.

Jury Selection

If a party does not specify a jury of 12, then a jury of 6 will be used (concurrence of 10 or 5 for a verdict, respectively. Parties have an unlimited number of for cause challenges against jurors who show bias, have an interest in the outcome, or are otherwise unable or unwilling to serve impartially. Each party has 3 peremptory challenges that can be used for any reason except for race or gender. A trail judge is given wide discretion in determining whether a juror challenged for cause is capable of deliberating fairly. If a court erroneously refuses to remove a juror for cause, error is harmless if the juror was removed by peremptory challenge, or if a party fails to use an available peremptory challenge to remove that jury.

Jury Instructions

Washington courts require submissions of proposed instructions at the time the case is called. A party's objection to jury instructions must come before the instructions are given to the jury for either a new trial or right to appeal, otherwise waiver. An erroneous or insufficient instruction will not lead to reversal unless it results in prejudicial error.

Arguments to the Jury

Two types: opening and closing. The closing arguments come after the judge has instructed the jury. Improper arguments include arguing from evidence not presented or admitted at trial, misstating the law, and appealing to the jury's emotions. An objection to improper argument is waived unless object to immediately.

Types of Jury Verdicts

are non-unanimous and include general verdicts (whether find for plaintiff or defendant, and if find for plaintiff what remedy), special verdicts (specific questions of fact to the jury, judge takes findings and applies law), and general verdicts with interrogatories (general verdict form, but answers specific questions to see if general verdict is consistent with findings of fact).

Improper Contact with Jurors

It is improper for a party or counsel to approach a juror without permission of the court. In the event of misconduct by counsel, the trial court has broad discretion to determine the appropriate measure for correcting the mistake; a cautionary instruction to the jury is appropriate if the court determines that the misconduct is unlikely to affect the jurors.

CR 50 Judgment as a Matter of Law (jury trials, like SJ)

is merited when there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party, with evidence viewed in light most favorable to the nonmoving party (without weighing credibility). It is available at the close of the opponent's case, the close of all evidence, or after a jury verdict (but must be within 10 days of the entry of judgment).

CR 59 Motion for a New Trial

The judge has broad discretion to grant or deny a new trial motion, but not for harmless error. It must be served and flied within 10 days of the entry of judgment.

New Trial: Juror Misconduct

Juror misconduct (to lie during voir dire, to rely on extrinsic evidence, to decide by compromise or chance or quotient verdict, juror intoxication) can be shown by third party witnesses or by jury witnesses as to the fact of the misconduct but not to its effect. A verdict will not be set aside if the misconduct was harmless.

New Trial: Insufficient Evidence

Insufficient evidence to justify the verdict is shown where the verdict is against the manifest weight of the evidence.

New Trial: Unjustified Award

Insufficient evidence to justify the award will merit a conditional new trial. The amount of a verdict will not be set aside if it is supported by substantial evidence. The amount of damages must be so high as to indicate unmistakably that the verdict was the result of passion or prejudice.

Remittiture/Additure

Remittiture is where the defendant makes a motion for new trial based on an award that is too high. If the judge agrees, the judge can grant a new trial unless the plaintiff agrees to a lesser amount to be set by the judge. Additur is where the plaintiff makes a motion for a new trial because the damages awarded were unreasonably low. If the judge agrees, the judge can grant a new trial unless the defendant agrees to a greater amount to be set by the judge.

New Trial: Irregular Proceedings

Irregularity in the proceedings that affects the fairness of the proceedings or the outcome, usually judge or attorney misconduct (ex parte contact with juror).

New Trial: Errors of Law

Errors of law if object to at trial at a point in time were judge can remedy.

New Trial: New Evidence

Newly discovered evidence must be pre-existing evidence that could not have been, with reasonable diligence, discovered in time for trial.

CR 60(b) Motion for Relief from Judgment

A judge has broad discretion (abuse of discretion) to relieve a party from judgment where the time for appeal has passed, or where defendant has a default judgment entered. Grounds include mistake, inadvertence, surprise, or excusable neglect (within one year from entry of judgment); newly discovered preexisting evidence (within one year from entry of judgment); fraud or misrepresentation by an adverse party (within a reasonable time).

Appeal as of Rights

A losing party has an absolute right to appeal when a final judgment has been entered. A losing party of a post-trial motion order may appeal as of right. In a multiple claim case, where one but not all claims have been decided, a party can appeal the decided claim if the judge enters judgment AND certifies that there is no just reason for delay.

Discretionary Appeals

the appellate court will hear a discretionary appeal only under extraordinary circumstances, like an obvious error that will render further proceedings useless.

Appellate Review: The standard of review

A judge will not overturn a finding of fact if there is substantial evidence to support the factual findings. Questions of law are reviewed de novo (no deference).

Preservation of errors

To preserve an objection for appeal, generally the party must object to an asserted error in the trial court at the earliest possible time, otherwise the objection is waived. Exceptions include lack of SMJ, failure to establish facts to support a claim, manifest error affecting a constitutional right (due process re: default judgment). Harmless error will not merit reversal.

Time for Appeal

Notice of appeal must be filed within 30 days of entry of judgment or order, or the entry of a post-trail motion for new trial or motion to vacate judgment. A failure in timing deprives the appellate court of jurisdiction to hear the appeal.

Full Faith and Credit Rule

requires that a valid judgment from another state of from a federal court is entitled to full faith and credit in WA courts. The elements of a valid final judgment are finality (trial court has entered judgment and not stayed enforcement), on the merits (substantive, not procedural basis, where actually litigated or could have been litigated), and proper jurisdiction (personal and subject matter).

Res Judicata (Claim Preclusion)

Once a final judgment on the merits has been rendered on a particular cause of action, the plaintiff is barred by res judicata (claim preclusion) from trying the same claim in a later lawsuit. For claim preclusion to apply, it must be shown that the earlier judgment was final, on the merits, valid, involved the same parties, and decided the same claim being tried in the later lawsuit. Claim splitting is not allowed, including all rights to relief arising out of the same transaction or occurrence or set of operative facts.

Collateral Estoppel (Issue Preclusion)

is available to both plaintiffs and defendants, and prevents relitigation of issues that were decided in a prior lawsuit against a party who was present in the prior lawsuit. It is available if the first judgment is final and both suits involve an identical issue of fact that was actually litigated in the first suit, actually decided, and essential to the judgment.

Defensive Issue Preclusion

Defensive issue preclusion is used by a second defendant against the a plaintiff who was a party in the prior lawsuit and who lost on the issue in question.

Offensive Issue Preclusion

Offensive issue preclusion is used by a second plaintiff against a defendant who was a party in the prior lawsuit and who lost on the issue in question IF the defendant had sufficient incentive AND a full and fair opportunity to litigate the issue in the first lawsuit.

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