Same Parties and Configuration

Claim preclusion takes away a person's right to sue, so it fairly applies only to someone who has already had a chance to litigate the claim. A party asserting it must usually show that the same claim is involved in both suits, that a valid and final judgment resolved that claim, and, in most jurisdictions, that the judgment was on the merits.¹ The third question on this chapter's checklist supplies the people: is case two a contest between the same parties, or their privies, lined up as they were in case one?

When case one ended in a state-court judgment, 28 U.S.C. § 1738 controls the answer. It gives a state's judicial proceedings the same full faith and credit in every court in the United States that they have by law or usage in the courts of the state they came from.² The rendering state's preclusion law therefore sets the starting point for how closely the two lineups must match, whichever court system hears case two. This section teaches the traditional requirement: the claimant in case two must be the person who was claimant in case one, suing the defendant that claimant sued before.

The requirement tracks what each side earned in case one. A claimant who filed case one chose the court, framed the complaint, and decided which grounds to assert, so holding that claimant to the result penalizes no choice the claimant did not control. The case-one defendant earned repose by meeting the suit, and that protection runs against the claimant who forced the effort. A stranger to case one fits neither description. Nobody asked the stranger to present a claim, and a judgment against the stranger would rest on a contest the stranger never joined. Who counts as a privy, and so stands in a party's place without being named, is a question for the Nonparty Preclusion section.

The matching rule leaves one gap. A defendant in case one never presented a claim, so a later suit by that defendant reverses the lineup and escapes claim preclusion in its traditional form. Rule 13(a), taken up in the second half of this section, closes much of that gap.

Same Claimant, Same Defendant

Claim preclusion reaches case two only when the claimant is the person who was claimant in case one and the defendant is the one that claimant sued before. It is not enough that the same two people appeared somewhere in case one. They must stand in the same positions, one suing the other.

The doctrine ties preclusion to the person because a claim belongs to whoever suffered the harm. Each person injured in one incident holds a separate claim, however many claims the incident produces. Take Kubek and Rizzuto, both hurt in the same incident. Kubek sues the defendant first. Rizzuto, who is no party to that suit, later sues the same defendant for his own injuries. The defendant was a party to both cases, but Rizzuto was not a party to the first. It does not matter that Rizzuto knew of Kubek's suit and appeared as a witness, because he still has the right to sue separately.⁴

Two consequences of the opposite rule show why the law draws the line there. First, a judgment in Kubek's suit that barred Rizzuto would force everyone hurt in an incident to sue together. The usual rule in American courts is the reverse: the plaintiff is master of her claim and may join other plaintiffs, as Rule 20(a)(1) permits, but need not.⁵ Second, the bar would fall on someone who has not been heard. Peter sues Mary for negligence in an accident, and Mary wins. Paul, hurt in the same accident, then sues Mary. Mary must defend the same negligence allegation a second time, which seems unfair to her. Binding Paul would be worse, because he has not had his day in court. He did not participate in Peter's case, he may have better evidence against Mary than Peter offered, and he may have more reason to litigate hard if, for example, his injuries are more serious.⁶

Marriage does not merge two people's claims. In a variation on Illinois Central Gulf Railroad v. Parks, a wife sues a railroad over an accident, and her husband later sues the same railroad for his own injuries from it. The husband is a different claimant, so the first judgment does not bar him through claim preclusion. What he can borrow from his wife's suit is a matter of issue preclusion, and the abandonment of mutuality makes the result lopsided. If the railroad loses the wife's case, that loss follows it into the later litigation with the husband. If it wins, it must still defend against him.⁷ The asymmetry has a logic: the railroad had its full opportunity to litigate, and the husband never did.

The requirement that the claimants match has limits, and those limits belong to the Nonparty Preclusion section. Each of the six recognized categories of nonparty preclusion rests on an express or implied legal relationship between the nonparty and the party who litigated case one. A nonparty with no such relationship, like Rizzuto or Paul, is not bound. Virtual representation, which would bind a nonparty in the absence of such a relationship, goes beyond those categories, and that section returns to it.⁸

Reverse the lineup and the analysis changes. Suppose the driver, who was the defendant in the trucker's suit, sues the trucker for her own injuries from the same wreck. The driver was never a claimant in case one, and the trucker was never a defendant, so the claimants differ and claim preclusion in its traditional form does not bar the suit, though the same two people met in court over the same collision. A court may still bar the suit, but through the counterclaim rule rather than through a match of claimants, as the next part shows.

Exam Analysis Steps

Because this requirement compares two lineups, write down the claimant and the defendant in each lawsuit before asking anything else. The steps are these:

Name who asserted the claim in case one and against whom, treating a defendant who pleaded a counterclaim as a claimant on that counterclaim.
Name who asserts the claim in case two and against whom, looking to the person whose injury or right is sued on, not to everyone who watched or testified in case one.
Compare the two pairs. Is the case-two claimant the case-one claimant, suing the same defendant in the same opposing position?
If the claimant is a different person, ask whether a recognized nonparty category such as privity or adequate representation applies. If none does, claim preclusion does not reach case two, although issue preclusion may still operate.
If the roles are reversed, ask whether a compulsory counterclaim rule bars the suit.

Counterclaims and Rule 13(a)

Rule 13(a)(1) requires a pleading to state as a counterclaim any claim the pleader has against an opposing party when the pleading is served,¹⁰ if the claim arises out of the transaction or occurrence that is the subject of the opposing party's claim.¹¹ A counterclaim is a claim that a defendant asserts against the plaintiff inside the plaintiff's own lawsuit. The rule tells a defendant which grievances must be pleaded in case one and cannot be held back. It also fills the gap the configuration requirement leaves open, because a defendant who sues later reverses the lineup and escapes claim preclusion in its traditional form.

Pritchard sues Danielle for causing a car accident, and Danielle wins at trial on a finding of no negligence. Danielle then sues Pritchard for her own injuries from the same accident. Danielle was the defendant in case one and is now the claimant, and Pritchard has moved from claimant to defendant, so the lineup is reversed. The suit is barred anyway. Her claim arose from the same accident, a negligence counterclaim from that accident would have been compulsory under Rule 13(a), and she did not bring it.¹²

Danielle's victory does not save the claim. The jury decided only that Danielle was not negligent toward Pritchard, and it said nothing about Pritchard's negligence toward her. The bar comes from the failure to plead, since failing to assert such a counterclaim precludes a later action on it.¹³ Courts most often describe the result in res judicata terms. Some prefer the more flexible language of equitable estoppel or waiver, which lets them preclude even when the first action produced no technical judgment.¹⁴

That consequence hands an advantage to whoever files first. A quick plaintiff can choose the forum for the defendant's related claim, and in a race to the courthouse the slower party must assert her claim as a counterclaim.¹⁵ A defendant who is sued first therefore cannot treat the answer as optional pleading, because omitting a related claim can forfeit it.

A defendant who actually pleads a counterclaim stands in a different position. The law treats that defendant as a plaintiff on the claim and holds the defendant to the outcome, so the defendant may not split the counterclaim. If P sues D for damages from an auto accident, and D counterclaims for property damage from that accident but not for personal injuries, D may not later sue P for personal injuries from the accident, whether D won or lost the counterclaim.¹⁶ Baker v. General Motors Corp. applied the same idea. GM could not sue Elwell elsewhere on the counterclaim GM had asserted in Michigan, and the opinion cited § 23, comment a, of the Restatement (Second) of Judgments for the point that “[a] defendant who interposes a counterclaim is, in substance, a plaintiff, as far as the counterclaim is concerned.”¹⁷

The test therefore asks who the claimant is, not who the plaintiff is. Pavlov sues Duchovny for breach of contract, and Duchovny asserts a permissive counterclaim, one the rules did not require, alleging an unlawful conspiracy that cost Duchovny customers. After losing that counterclaim, Duchovny files a separate suit against Pavlov under a state antitrust statute, built on the same conspiracy facts. Duchovny was the claimant and Pavlov the defendant on the counterclaim, and the same lineup appears in the second suit. Claim preclusion bars the antitrust claim even though Duchovny was the original defendant and the counterclaim was optional, because the pleaded counterclaim defined a claim and the second suit repeats it on a new legal theory.¹⁸

The compulsory rule reaches less than its reputation suggests. It covers only claims the pleader has when serving the pleading, so a claim that matured or was acquired after the answer need not be pleaded. Rule 13(a)(2)(A) also excuses a defendant whose claim was already the subject of another pending action when the present action began, so the plaintiff cannot force the defendant's claim into a court of the plaintiff's choosing if that claim is pending elsewhere.¹⁹

The rule also stops at the line between opposing parties. Rule 13(a) speaks only of counterclaims,²⁰ so a claim between co-parties, such as one defendant's cross-claim against another, is not compulsory, and a party who holds one back may generally assert it later. Third-party practice works the same way. Boss, a defendant in an earlier action, brought Worker in as a third-party defendant solely on an indemnity theory. Worker's later suit against Boss on a claim of his own is not barred, because Rule 14 does not require a third-party defendant to assert every possible claim against the third-party plaintiff in that action.²¹

The scene shows what a jurisdiction without a compulsory counterclaim rule changes: a case-one defendant who held back a related claim may still sue on it. The strength of the bar thus depends on the rule of the court that rendered case one. Under § 1738, a state court's records and judicial proceedings have the same full faith and credit in every court in the United States that they have by law or usage in that state's own courts.²² A court asked to treat a state judgment as barring an omitted counterclaim therefore asks whether the rendering state makes counterclaims of that kind compulsory. The Whose Preclusion Law Applies section takes up the parallel question for federal judgments.

Exam Analysis Steps

Because the bar here comes from a pleading rule and from the claimant's role, test a later suit by a case-one defendant by asking about the rule before asking about preclusion in the strict sense. The steps are these:

Confirm that case one produced a valid and final judgment on the merits. Summary judgment, dismissal under Rule 12(b)(6), and default judgment all count.²³ Some courts reach an unasserted counterclaim through estoppel or waiver even when no technical judgment was entered.²⁴
Ask whether the later claimant was the defendant in case one and the later defendant the case-one plaintiff, because a reversed lineup takes the problem outside claim preclusion in its traditional form.
Ask whether the claim runs against an opposing party, arises from the transaction or occurrence the plaintiff sued on, and existed when the answer was served.
Check the exceptions for a claim already pending in another action, and recall that claims against co-parties are not compulsory and that a third-party defendant need not assert every claim against the third-party plaintiff.
Identify the court that rendered case one and ask whether its law makes the counterclaim compulsory, because a state judgment bars an omitted counterclaim only if that state's own rule does.
If the defendant actually pleaded a counterclaim in case one, treat that defendant as a claimant, so that ordinary claim preclusion, including the bar on splitting a claim, governs the later suit.

The last step turns on what the defendant did in case one, not on what the defendant could have done. A defendant who stayed silent is tested under the counterclaim rule, and a defendant who pleaded a counterclaim is tested under claim preclusion itself.