Civ Pro Flashcards
In appellate review, if the issue is a pure question of LAW, the appeals court typically…
reviews the issue de novo, which means no deference will be given to the trial court’s ruling and the appellate court will decide the issue from scratch.
In appellate review, if the issue is a question of FACT, the appellate court is…
reluctant to reverse
What is the standard applied by appellate courts when reviewing the fact-finding of a judge in a bench trial?
CLEARLY ERRONEOUS
When reviewing discretionary rulings by trial courts, such as evidentiary or discovery rulings, appellate courts will use abuse what standard of review?
Abuse of discretion
When will a federal appeals court overturn a jury verdict?
only if there is a complete absence of proof on some material issue
In class action diversity of citizenship is based on whether…
the NAMED parties are diverse from one another (named P and named D). Does not matter if unnamed members are from same state.
How does a party raise the inadequacy of a jury instruction on appeal?
the party wishing to make objection to the instruction has to do it before jury retires for deliberation. Failure to properly preserve an objection by this time will waive the issue on appeal.
What is plain error?
error found by appellate court that affects the substantial rights of the parties.
What type of motion to file (after the original petition was filed) when a Defendant’s defense relies on material outside the pleadings?
File an answer and a motion for summary judgment because affidavit can be attached to MSJ
What are all the defenses that can be asserted in a pre-answer 12 motion to dismiss?
lack smj, lack pj, improper venue, insuff process, insuff service of process, failure to state a claim, failure to join necessary party.
When will a court grant a motion for summary judgment?
If movant can show that the disputed factual issues presented by the pleadings are actually illusory (not real).
What is the timeline for filing a JMOL?
must be filed no later than 28 days after judgment entered.
Can a court extend the time to file a JMOL?
No. “must not extend time to act”
When does voluntary dismissal by plaintiff become adjudication on the merits?
When filed by P who has once dismissed in any fed court in an action based on or including the same claim.
When is permissive joinder granted?
When applicants claim had common question of law or fact as main action and claim does not destroy complete diversity.
