Just as important as starting a case is the ability to finalize a case. Sometimes, however, finalizing a case can be quite difficult. Those who lost at trial have the opportunity to directly or collaterally attack the judgment. This article explores one such attack:

Whether Court B can refuse to enforce the judgment in Court A because there were jurisdictional defaults within Court A’s judgment.

Issue and Claim Preclusion

The concepts associated with this ideas of claim preclusion (res judicata) and issue preclusion (collateral estoppel).

Claim preclusion is associated with the concept of merger and bar. Bar means that you argued the claim in forum 1 and you cannot re-litigate the claim in forum 2. Merger means that you should have argued the claim in forum 1 so you cannot bring the claim in forum 2. Importantly, it must be the “same claim.” According to the 2nd Restatement, the same claim is defined as a claim deriving from the same transaction or occurrence.

Issue preclusion limits litigating issues in another forum if the issue was previously litigated in the first forum.

Direct and Collateral Attack

Direct attacks on the judgment tend to be motions for new trial, motion to vacate the judgment and appeals. A direct attack occurs in forum 1 against the judgment of forum 1.

A collateral attack is an attack on the judgment made in forum 1 by attempting to re-litigate the claim or issue in forum 2. Consequently, the full faith and credit clause becomes highly important, because it a question of whether the judgment in forum 1 has to be upheld by the court in forum 2.

Collateral attack of personal jurisdiction

Typically a collateral attack occurs when there is a lack of personal jurisdiction in forum 1, the defendant defaults in forum 1, and argues the personal jurisdiction when the claim is sought to be enforced in forum 2. However, if the defendant engages in this activity and forum 2 determines that forum 1 did have personal jurisdiction, the defendant’s arguments of the merits are waived (do not do this). Conversely, defendants can make a special appearance or a 12(b)(2) motion to dismiss for lack of personal jurisdiction (no collateral attack, but at least you still get to argue the merits). If the defendant voluntarily appears, however, and does not contest personal jurisdiction, then any personal jurisdiction defenses are waived.

Collateral attack of subject matter jurisdiction

Collateral attack on subject matter jurisdiction is more difficult to understand. Ultimately, we are asking whether (1) there was actual litigation over subject matter jurisdiction, or (2) the opportunity to litigate subject matter jurisdiction.

Durfee v. Duke

375 U.S. 106 (1963).


Whether the judgment rendered in Nebraska is required to be enforced in Missouri.


Jurisdictional questions can be raised in a different forum. However, if the jurisdiction had the opportunity and was fully litigated in the first forum, the second jurisdiction cannot revisit the issue.


The Missouri federal courts need to respect the judgment made by Nebraska’s Supreme Court. Reversed.


There was a piece of property located on the Missouri River, and the litigation was based on who owned the property. The main issue before the court in Nebraska was whether the plaintiff had the subject matter jurisdiction to litigate the issue in a Nebraska court. Finding the property was located in Nebraska, the Nebraska court held that there was subject matter jurisdiction. Eventually, the Nebraska court afforded quiet title in favor of the plaintiff.

Trying the maintain the property, the defendant in the first case brought the issue before the Missouri district court. The Missouri district court respected the decision made by the Nebraska court. On appeal, the court of appeals said that the district court had the right to determine whether the property was located in Missouri and could litigate the issue if so.


The defendant in the first case had the full opportunity to litigate the issue of jurisdiction. They came to Nebraska, subjected themselves to the court, and argued that there was no subject matter jurisdiction. Having fully litigated the issue, the Missouri court cannot revisit it due to the principle of res judicata.

Additional Notes

Consider Chicot County Drainage District. v. Baster State Bank, the opportunity to litigate and the failure to do so in forum 1 may preclude the ability to litigate the issue in forum 2.

Restatement (2nd) of Conflicts § 451(2) defines whether subject matter jurisdiction was actually litigated in a previous forum.

Fall v. Eastin

215 U.S. 1 (1909).


Whether the full faith and credit clause required Nebraska to enforce a decree in Washington that required property in Nebraska to be conveyed to the plaintiff in Washington.


A decree from State A does not need to be enforced in State B if the subject of the decree is real property located in State B.


The property was located in a state other than where the decree was made, no enforcement against the property can be forced.


A husband and wife were married in Nebraska and acquired property there together. Later, the couple moved to Washington, became separated, and divorce proceedings ensued. Once the divorce was final, the assets of the parties were to be divided. Consequently, the wife was to obtain the property located in Nebraska. Attempting to get around the decree giving the property to the wife, the husband conveyed the land to Elizabeth Eastin.

The current lawsuit is between the wife (Fall) against Eastin, attempting to enforce the Washington decree in Nebraska—and consequently determine the conveyance to Eastin was null and void.


The plaintiff is arguing that the decree in Washington acts the same was as if she was a valid purchaser of the land. The defendant is arguing a judgment made against real property in another state has no effect whatsoever.

Considering these options, the Court is tempted by the facts of the case to rule in favor of the plaintiff. Specifically, the husband’s act of fraud in the conveyance as an attempt to bypass the decree is frustrating. Despite this behavior, the doctrine expressly says that a decree in a state cannot be binding in another state if the subject of the decree is real property.

Additional Notes

If the Washington court had executed a judgment for money or an injunction against the husband, the judgment probably would have been upheld in Nebraska. However, because the judgment was for the land (in rem), questioning the subject matter jurisdiction (the location of the land) was not possible.

Kalb v. Feuerstein

308 U.S. 433 (1940).


Whether the bankruptcy act allows a collateral attack on the jurisdictional basis of the county court.


Congress has the authority to limit the jurisdiction of state courts. The bankruptcy act limits state courts, other than bankruptcy courts, from acting on farmer’s assets once bankruptcy is pending.


The bankruptcy act limits jurisdiction, reversed.


A farmer was struggling financially and went into bankruptcy. While the bankruptcy proceedings were pending, the mortgagee (lender) foreclosed on the farm and sought a writ from the state court to have a foreclosure sale and eject the farmer and his family from the property. No request for a stay of foreclosure was made by the farmer, so the foreclosure and ejection took place.

The current lawsuit is by the farmer against the mortgagee and the sheriff. First, there was a count against the bank for improperly foreclosing on the property because the pending bankruptcy court removed jurisdiction from the county court. Second, there was a count against the sheriff for assault, battery, and false imprisonment during the ejectment.


The purpose of the bankruptcy act was to protect farmers who were pending and in bankruptcy. Essentially, the act limits the jurisdiction of courts outside of bankruptcy courts from acting against the assets of farmers while bankruptcy is pending. There is no need for a farmer to raise the issue of jurisdiction. Therefore, the court, mortgagee, and sheriff were wrong and acting against the bankruptcy act when foreclosure and ejectment proceedings took place.

Additional Notes

In this case, the federal bankruptcy court had exclusive subject matter jurisdiction over bankruptcy actions. Therefore, the failure to litigate subject matter jurisdiction, despite having the opportunity to, does not foreclose on the ability to collaterally attack subject matter jurisdiction.

Other rules: Parties are not allowed to collaterally attack for lack of case or controversy. Additionally, parties are not allowed to collaterally attack for diversity after a judgment becomes final.

V. L. v. E. L.

136 S.Ct. 1017 (2016).


Whether Alabama is bound by the full faith and credit clause to uphold an adoption allowed by the Georgia courts.


A State is not required, however, to afford full faith and credit to a judgment rendered by a court that “did not have jurisdiction over the subject matter or the relevant parties.”


Alabama errored by saying the Georgia courts had no subject matter jurisdiction. Reversed.


E. L. is the birth parent while V. L. is the adopting parent. E. L. and V. L. were living together and through the use of reproductive services, E. L. had three children. Wishing to give E. L. parental rights, E. L. applied for adoption where V. L. consented to the adoption and retained full parental rights. All of these events occurred in Georgia.

Later, the two moved to Alabama where the relationship deteriorated. E. L. limited V. L.’s ability to visit the children so V. L. sued for custody or visitation rights. At trial, the Alabama district said Georgia had subject matter jurisdiction. The Alabama Supreme Court disagreed, said Georgia had was no subject matter jurisdiction, and would not uphold the adoption by V. L.

At issue here are two statutes. First Statute: Georgia has jurisdiction over all adoption proceedings. Second Statute: Adoption will be granted to a third-party only if a living parent releases their parental rights.


It is easy to see the conflict above. The resolution, however, is fairly straightforward. First, the first statute gives jurisdiction. Second, the second statute resolves the claim based upon the merits. Just because a statute is mandatory and should be read such does not mean it bars the court’s ability to hear the case. These mandatory provisions instead limit the remedy.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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