Civ Pro

Question 1

Subject Matter Jurisdiction - General

HIGH

Answer 1

A federal court can only hear cases where it has subject matter jurisdiction, because it is a court of limited jurisdiction.

Types of SMJ:
* federal question
* diversity of citizenship
* supplemental

SMJ may be raised at any time, even on appeal.

Question 2

Subject Matter Jurisdiction - Federal Question

HIGH

Answer 2

Federal Question jurisdiction exists if a well-pleaded complaint alleges a claim that arises under:
* federal law
* US Constitution OR
* US treaties

Plaintiff must be enforcing a federal right and the federa lquestion of law must be present on the face of the complaint.

Note: Raising a defense under a federal lawi s not sufficient to trigger federal question jurisdiction.

Question 3

Subject Matter Jurisdiction - Diversity

HIGH

Answer 3

Diversity of Citizenship jurisdiction exists when:
* there is complete diversity of citizenship between all plaintiffs and defendants (each side of the “v.”) AND
* the amount in controversy exceeds $75K.

Diversity determined at time the action is commenced; a post filing change of citizenship is irrelevant absent bad faith.

Question 4

Determining Citizenship (for Subject Matter Jurisdiction)

HIGH

Answer 4

Natural Person and Permanent Residents: Domicile determined by party’s (i) residence (physical presence in the state) AND (ii) subjective intent to make the state their permanent home.

Corporation: Domiciled in both (i) principal place of business AND any state where incorporated.

Executor/Personal Representative: Has citizenship of decedent or person being represented.

Partnership: Domiciled in every state of every partner/member/owner.

Question 5

Aggregating Amount in Controversy
(Subject Matter Jurisdiction - Diversity)

HIGH

Answer 5

Amount in controversy is based on damages alleged in good faith in the complaint, unless legally certain that amount can’t be recovered.

Plaintiff may aggregate their claims against one defendent or multiple defendants if all are joint tortfeasors (where defendants are jointly and severally liable).

A claim for injunctive relief is valued by either the benefit to the plaintiff or cost of compliance for the defendant (the value of the injunction).

Question 6

Supplemental Jurisdiction

HIGH

Answer 6

If a federal court has original jurisdiction (subject matter jurisdiction) over some of the claims in the action, then it may exercise supplemental jurisdiction over additoinal state court claims when the yarise form the same “case or controversy”.

Such claims must arise from a common nucleus of operative fact (the same transaction or occurence).

Limitations:
* cannot be used to overcome a lack of diversity
* does not apply to claims by the original plaintiff against a third-party defendent.
* federal court can decline to exercise supplemental when: (i) claim raisines novel or complex issue of state law, (ii) the claim dominates over the claims the court had original jurisdiction over, (iii) all original claims have been dismissed or (iv) in exceptional circumstances where there are other compelling reasons for declining jurisdiction.

Question 7

Diversity Jurisdiction for Class Actions
(Subject Matter Jurisdiction)

LOW

Answer 7

Diversity jurisdiction for large class actions exists when:
* amount in controversy exceeds $5M
* there are at least 100 class members and
* Minimal diversity is present - any member of the plaintiff class is a citizen of a state different from any defendant

A court may declien to exercise jurisdiction when a non-diverse members constitute greater than 1/3 and less than 2/3 of the total class.

A court must decline to exercise jurisdiction when non-diverse members constitute greater than 2/3 of the total class.

Question 8

Removal

HIGH

Answer 8

A defendant may remove a case to a federla court sitting in the state where the claim was filed if:

• federal court has subject matter jurisdiction
• all defendants agree
• no defendant is a resident of the forum state AND
• removal is sought within 30 days

Procedure: Defendant files Notice of Removal with federal court. Notice must (i) state basis for federal court jurisdiction AND (ii) include copies of the documents filed in the state court action; defendnatm ust serve notice to all parties and file copy with state court.

Deadline: 30 dys; service of summons or initial pleading; not more than one year after commencement

Question 9

Personal Jursdiction - General

HIGH

Answer 9

Jurisdiction over a defendant normally falls into two categories:
* traditional basis: (i) domicile, (ii) presence in state when served, (iii) consent or (waiver)
* state long-arm statute: see other card

Question 10

Personal Jurisdiction - Long Arm Statute

HIGH

Answer 10

If a defendant is not a resident of the forum state, then the forum state must habve a long arm stuate AND the Constitutional requirements of due process must be met.

Elements:
* defendant must have sufficient minimum contacts with the forum state
* so as not to offend traditoinal notions of fair play and substantial justice

Note: Long arm and constituional requirements usually same, bu may have different long arm statute.

Question 11

Sufficient Minimim Contacts - Long Arm
(Personal Jurisdiction)

HIGH

Answer 11

Sufficient minimum contacts exist when either general jurisdiction or specific jurisdiction is present.

General: exists when defendan’t contacts with the forum state are so substantial and os fusch nature that the defendant is essentially at home in the state.
* claim does not need to relate to or arise from defendant’s contacts in the forum state
* individual must be domiciled in the state for general jurisdiction to apply.

Specific Jurisdiction: exists when the suit arises out of or relates to defendant’s contacts with the forum state.
* regularly occurring sales of a product in a state does nto justify the exercise of jurisdiction over a claim unrelated to those sales
* Internet - court will consider how interactive website is.

Question 12

Fair Play and Substantial Justice (Fairness Factors) - Long Arm
(Personal Jurisdiction)

HIGH

Answer 12

Even if minimum contacts must, must be fair and reaosnable for defendnat to be sued in forum state.

Burden is on defendant to show that it would be so unreasonable to defend himself in forum state it would violate due process.

Court considers:
* burden on defendant in litigatin in forum state
* state’s interest in providing a forum
* plaitniff’s interest in a convent forum for providing relief
* the interests of the judical system to efficiently resolve disputes

Question 13

Service of Process

HIGH

Answer 13

Deadline: 90 days of filing of complaint

If missed, court must either
* dismiss action wihtout prejudice against defendant OR
* order that service be madewithin a specified time

If platiniff shows good cause for failing to seve within 90 days, court MUST extend the time for service for an appropriate period.

Service ma ybe made by any person who is:
* at least 18 AND
* not a party in the action

Question 14

Methods of Service

HIGH

Answer 14

Individual: An individual may be served by delivering the summons and complaint:
* to the individual personally
* to somone of suitable age and discretion at the individual’s current dwelling or usual place of abode
* to an agent authorized by apointment or by law OR
* in accordance with state law of the forum or where service is made

Corporation, Partnership or Association: may be served
* in accordance with staet law of the forum state or where service is made OR
* by delivering summons and complaint to an officer, managing agent, general agent or authorized agent of the corp.

Foreign Defendant: may be served in any manner not prohibited by international agreement.
* email can count if no international agreement prohibits is AND it satisfies due process

Question 15

Proper Venue

HIGH

Answer 15

Venue is proper in any district where:
* any defendant resides (if all defendants are residents of the forum sate)
* where a substantial portion of the claim occurred
* where a substantial part of property is located (if subject of the action) OR
* if none of the above apply, then venue is proper in any judicial district in which any defendant is subject to the court’s personal jurisdiction

Proper venue is determined at the time the suit is filed; laterm ove by a party does not warrant change of venue.

Question 16

Transfer of Venue

HIGH

Answer 16

Transfer of venue and the applicable law depends on whether venue was proper when the suit was first filed.

Proper: Court may transfer venue if:
* needed for the convenience of parties and witnesses or interests of justice AND
* action could have initially been brought in the receiving court (proper venue + SMJ + PJ)
* Note: Court has descretion over transfer; new court MUST apply same substantive law as the original transferor court

Improper: Court MUST
* dismiss case OR
* transfer case to a proper court if the interets of justice require it
* Note: law applied is that of the new transferee court

Question 17

Forum Selection Clauses
(Venue)

HIGH

Answer 17

Generally, a court will enforce a contractual forum-selection clause to transfer venue, unless special factors are present (ex: inequality of bargaining power).

Additoinally, Supreme Court has held that a forum-selection clause is an important factor favoring a change of venue, even if the forum selection clause is unenforceable under the applicable state law.

Question 18

Erie Doctrine

High

Answer 18

Applies when a federal case is brought under diversity of citizenship jurisdiction or supplemental jurisdiction.

A federal court will apply its own federal procedural laws but must apply state substantive law.

Procedural laws: civil procedure rules, statute of limitations, burden of proof and rebutable presumptions

Substantive laws: choice of law, statute of frauds, irrebuttable presumptions, damages, preclusion law

Note: federal court sitting in diversity must apply forum state’s choice of law rules to determine applicable state substantive law in the action.

Question 19

Preliminary Injunction

MED

Answer 19

A preliminary injunction maintains the status quo pending the outcome of an action in order to protect irreparable harm to a party.

Court may issuue a preliminary injunction only:
* upon notice to the adversse party AND
* if moving party gives security in an amount the court deems proper (used to remiburse non-moving party for injury if moving party does not succeed)
* Note: Can either restrain or compel party to do something

Pary moving for injunction must show:
* a likelihood of success on the merits
* a likely threat of irreparable harm
* the harm alleged by the movant outweights any harm to the non-moving party AND
* an injunction is in the public interest

Note: Preliminmary Injunctions have been granted in environmental damage cases and to enforce non-competes restricting former employees.

Question 20

Temporary Restraining Order

MED

Answer 20

A temporary restraining order is an emergency remedy used to maintain the status quo pending the outcome of a hearing or application, and is only available when plaintiff will suffer immediate and irreparable harm.

Same elements as Preliminary Injunction.

A TRO can be issued ex parte (without notice to an adverse party) if the moving party:
* provides specific facts in sworn statement that clearly show that immediate and irreparable injury, loss or damage will result before adverse party can be heard
* certifies in writing any efforts made to give notice to the adverse party and why notice should not be required AND
* gives security in amount court deems proper

Deadline: Ex Parte TRO automatically expires after 14 days, but court can extend for good cause or if opposing party consents to an extension; adverse party can move to dissolve or modify the TRO on two days notice

Question 21

Claim for Relief

Low

Answer 21

A pleading that states a claim for relief must contain:
* a short and plain statement of the grounds for the court’s jursidiction
* short and plain statement of the claim showing that the pleader is entitled to relief AND
* a demand for the relief sought

A party may state as many seperate claims as it has, regardless of consistency.

Note: Special state-law pleading rules do not apply in federal court.

Question 22

Responding to a Pleading

Low

Answer 22

A party must respond to a pleading by:
* stating its defenses to each claim asserted against it AND
* admiting or denying the allegations asserted against it

Misc.
* can deny all allegations generally, but must be in good faith
* can partially admit and partially deny
* Can state lack of knowledge to form belief about the truth; has the effect of a denial.

Question 23

Ameding a Pleading

MED

Answer 23

A party may amend a pleading once as of right within 21 days after service of:
* origina lpleading
* a responsive pleading or pre-answer motion to the original pleading

In all other cases, a party can amend:
* with opposing party’s written consent OR
* with leave of court upon motion, which should be given freely when justice so requires.

Note: Usually amended to add claims, parties or affirmative defenses.

Question 24

Defenses Waived if Not in First Response to Pleading
(i.e., answer or pre-answer motion)

MED

Answer 24

Lack of Personal Jurisdiction

Improper Venue

Insufficient Process

Insufficient Service of Process

Question 25

Relation Back - Amended Pleading

MED

Answer 25

An amendment to a pleading elates back to the date of the original pleading when:
* the amendment asserts a claim or defense that arose out of the same conduct, transaction or occurrence as the original pleading OR
* the law that provides the applicable statute of limitations allows the relation back

If amendment is to change a party or party name, amendment only relates back if:
* the amendment concerns the same conduct, transaction or occurence and the oroginal pleading AND
* the new party knew or should have known that the action would have been brought against it, but for mistake concerning proper party’s identity

Question 26

Counterclaims

MED

Answer 26

A counterclaim is a claim brought by a defendant against a plaintiff.

Permissive: a counterlcaim against an opposing party that is not compulsory.

Compulsory: Elements
* arises out of the same transaction or occurence as the opposing party’s claim AND
* the claim does not require adding another party whom the court cannot acquire jursdiction over

Note: Factors for determining “same transaction or occurrence”
* same issues of fact and law
* whether claim preclusion (res judicata) would bar a subsequent suit on the counterclaim
* whether same evidence supports or refutes plaintiff’s claim and defendant’s counterclaim AND
* whether there is any logical relation between the claim and counterclaim

Compulsory counterclaims must be stated in the party’s pleading or that party is otherwise barred from asserting that claim in future litigation.

Question 27

Cross-Claims

Low

Answer 27

A pleading may state a claim against a co-party as a cross-claim if the claim arises out of the same transaction or occurence as the original action or coutnerclaim.

Same factors for transaction or occurrence as counter claim.

Question 28

Representations to the Court
(Rule 11)

MEd

Answer 28

Under Rule 11, all papers served in the litigation (pleadings, motions) must be signed by an attorney of record.

By serving, the party certifies that:
* papers are not being presented for any improper purpose
* claims, defenses and other legal contentions have (or will have) evidentiary support AND
* the denials of factual contentions are warranted

Certifications must be to best of the person’s knowledge and belief.

Note: Does not apply to discovery or discovery motions.

Question 29

Rule 11 Sanctions

MED

Answer 29

The court may issue sanctions against an attorney, law firm, or party for failing to comply with Rule 11.

A law firm is jointly responsible for a violation commited by its partner, associate or employee.

A court cannot issue monetary sanctions against a client for action made by their attonrey.

Court has discretion to determine whether a Rule 11 violation has occured and what sanctions to impose.

Sanctions must be limited to what will deter repetition of similar conduct and may include:
* non-monetary directives (striking pleading, censure, etc)
* and order to pay a pentalty to the court OR
* an order directing payment to the movant of all or part of the reasonable attorney’s fees and other expenses directly resulting from the violation

Question 30

Procedure for Filing Rule 11 Sanctions Motion

Low

Answer 30

A party cannot file a Rule 11 motion for sanctions with the court without:
* serving the motion on the offending party AND
* giving their opponent 21 days to withdraw or correct the offending pleading or paper

Motion must be made separately from other motions and must describe conduct in violation of Rule 11.

Question 31

Permissive Joinder - Multiple Plaintiffs/Multiple Defendants

HIGH

Answer 31

Multiple Plaintiffs: Under FRCP, multiple plaintiffs/defendants may join in one action if:
* joint and several relief is asserted by them or claim arises out of same transaction or occurrence
* a comon question of law or fact to all plaintiffs exxists AND
* subject matter jurisdiction exists for each claim

Note: Misjoinder of parties is not a ground for dismissing an action. Court may add or drop a party on just terms. Court may also sever any claim against a party.

Question 32

Required Joinder of Parties

MED

Answer 32

A party MUst be joined in an action if:
* that party is a necessary party AND
* joinder is feasible

A party is necessary if:
* the court cannot grant complete relief among existing parties without the absent party
* the absent party claims an interest in the action that would be impaired or impeded
* the party’s absence would leave an existing party subject to a substnatial risk of multiple liability or inconsistent obligations

Joinder is feasible when:
* joinder will not remove subject matter jurisdiction AND
* the court has personal jurisdiction over the necesary party

Note: If a party has not been joined as required, the court must order that the party be joined to the action.

Note: Courts have held joint and several tortfeasors to be permissive, not necessary parties.

Question 33

Intervention (by a non-party)

LOW

Answer 33

Intervention as of Right: A court must permit intervention if
* application to intervene is timely
* interest in sugject matter of action
* protection of this interest would be impaired because of the action AND
* non-party’s interest is not adequarely represented by existing parties to the litigation

Permisive Intervention: Court may allow non-party to intervene where nonparty
* files a timely motion AND
* either (i) has a claim or defense that sharees a common question of law or fact with the ain action or (ii) is given a conditional right to intervene by federal statute
* Note: when permissive, court must consider whether intervention will unduly delay or prejudice the adjudication

Question 34

Impleader

MED

Answer 34

Defendant allowed to bring a third-party into action only if:
* third party is or may be liable t othe defendant
* for all or part of the claim against the defendnat in the action

Defendant must serve a summons and third party complaint on the third party.

Leave of court is required if defedant seeks to file third-party complaint more than 14 days after serving its original answer.

Question 35

Class Action Requirements

MED

Answer 35

One or more representatibe members of a class may sue or be sued on behalf of the entie class if:
* if the class is so numerous that joinder of all members is impracticable (numerosity)
* there are questions of law or fact common to the class (commonality)
* claims or defenses of the representative parties of typical of the claims or defenses of the class AND (typicality)
* representative parties will fairly and adequately protect hte interests of the class (aequacy of representation)

Question 36

Class Action - Certification

MED

Answer 36

A class will be certified if:
* when seperate actions would create a risk of (i) inconsistent adjudiciations or other class members or (ii) harm interests of absen class members
* party opposing the class has acted or refused to ac on grounds that apply generally to the class as a whole OR
* common questions of law or fact to the class members predominate and a class action is superior to other available methods to adjudicate the case

Note: Courts reluctant to authorize class actions for persoal injury claims

Question 37

Discovery - General

Low

Answer 37

A party in a lawsuit may obtain discovery of all non-privileged information that is:
* relevant to any party’s claim or defense AND
* proportional to the needs of the case

Proportionality is determined by considering:
* importance at isssuesat stake in the action
* amount in controversy
* parties relative access to relevant information
* parties’ resources
* importance of the discovery in resolving the issues
* whether the burdneor expense of hte proposed discovery outweighs its likely benefit

Once a party reasonably anticipates litigation, that person has a duty to preserve all relevant evidence and cannot destroy it. Parties can be sanctioned for destroying or failing to preserve evidence.

Note: Information within scope of discovery need not be admissible in evidence to be discoverable.

Question 38

Relief from Judgment

Misc.

Answer 38

A court may grant relief for mistake, inadvertence, surprise or excusable neglect.

A motion for relief from judgment must be made within a reasonable time and not more than one year from the entry of judgment.

Note:

Question 38

Depositions

Low

Question 39

Depositions

Low

Answer 39

A party is permitted to conduct up to 10 depositions.

A party is permitted to conduct a deposition of any person or party so long as the deposition is:
* limited to one day of no more than 7 hours AND
* proper notice is given

Leave of court required for:
* more than 10 depositions
* if person has already been deposed
* if deposition is sought before the parties meet and confer
* an entity must designate aperson to represent it for a depostion and may designate different people to testify on different topics

Note: Reasonable written notice is required for deposition stating time and place; subpeona not required for deposition

Question 40

Duty to Preserve Evidence

Med

Answer 40

When a party resonably anticipates litigation, it must take resonable steps to preserve the information.

Question 41

Spoliation (of Evidence) Sanctions
(Electronically Stored Information)

MED

Answer 41

A party may be sanctioned for failing to preserve Eleoctroncially Stored Information (ESI) only if:
* the ESI should have been preserved in the anticipation of litigation
* the party failed to take reasonable steps to preserve it AND
* it cannot be restored or replaced throug hadditoinal discovery

The court may order measures:
* no greater than necessary to cure the prejudice OR
* if hte party acted intentionally, the court may (i) presume information lost was unfavorable to the party (ii) instruct jury that it may or must presume information was unfavorable to the party (iii) dismiss hte action or (iv) enter a default judgment

Note: Entering default judgment is the nuclear option

Question 42

Signing Disclosures - Discovery Papers

Low

Answer 42

All discovery papers served in the litigation (discovery requests, responses, objections or disclsoure) must be signed by an attorney of record.

Signing party certifies:
* that discovery papers consistent wit hFRCP
* not being presented for any improper purpose AND
* not unreasonable undly burdensome or unduly expensive

Court can issue sanctions for violation of rule.

Question 43

Initial Disclosures

Low

Answer 43

A party must provide the following initial disclosures to other parties:
* contact infomration of individuals likely to have discoverable information and the information they are likely to have
* a copy or description of all documents party may use to support its claims or defenses
* computation of each category of damages claimed by disclosing party AND
* any insurance agreement that may be applicable to satisfy judgement

Deadline: must be made within 14 days after Rule 2(f) conference between the parties.

If disclosures not provided, party not allowed to use that witness or infomration unless failure was justified or harmless.

Question 44

Attorney Work Product Doctrine

MED

Answer 44

Attorney work product doctrine protects all materials prepared by an attorney in anticipation of or during litigation.

Materials are protected from disclssure unless a party can show that:
* a substantial need for the material exists AND
* a substantial equivalent of the materials cannot be obtained without undue hardship

Note: insurance comapny’s investigatie report of an insured’s claim is not work product because its not prepared in response to a threat of immediate litigation.

Question 45

Scheduling Order
(Pretrial Conference)

MED

Answer 45

Scheduling Order: Court must issue a scheduling order (i) after receiving report for Rule 265(f) conference OR (ii) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference.
* the schedule in a scheduling order may be modified only for good cause AND with judge’s consent

Question 46

Pretrial Conferences

MED

Answer 46

Court mayy order attorneys to appear for one or more pretrial conferences.

The court may issue sanctions if a party or its attorney:
* fails to appear
* is substnatially unprepared to participate
* does not participate in good faith OR
* fails to obey a scheduling or other pretrial order

Court may only modify final pretrial conference order only to prevent manifest injustice.

Question 47

Motion to Dismiss

HIGH

Answer 47

A motion to dismiss may be made prior to filing an answer.

Requires court to:
* consider facts in light most favorable to the non-moving party AND
* determine whether there is any basis upon which relief can be granted for the non-moving party.

If any basis for relief, court must deny the motion.

Grounds for motion:

waived if not raised in first repsonsive pleading or motion to dismiss

• lack of personal jurisdiction
• improper venue
• insufficient process
• insufficient service of process
• failure to state a claim upon whcih relief can be granted

can be raised at any time (even on appeal)

• failure to join a necessary party
• lack of subject matter jurisdiction

Question 48

Motion for Judgement on the Pleadings

HIGH

Answer 48

A motion to dismiss made after the defendant has answered.

Question 49

Summary Judgment

High

Answer 49

A court will grant a motion for summary judgment when:
* court must view evidence in light most favorable to the non-moving party
* there is no genuine issue of material fact AND
* moveant is entitled to judgment as a matre of law

An issue of material fact is genuine if the evidence is such that a rasonable jury could return a verdict for the nonmoving party

Where moving party presents evidence of facts that woud defeat the non-moving party’s claim, the non-moving party must offer evidence of specific facts showing that there is a genuine issue for trial by affirdavits or other evidence

A party may move for summary judgment on the entir case or on certain issues (partial summary judgment)

Deadline: Any time until 30 days after close of all discovery.

Note: The non-moving party can make a declaration as to why they do not yet have all the facts necessary in the record for the court to make a decision on a summary judment motion.

Question 50

Judgment as a Matter of Law
(“Directed Verdict”)

MED

Answer 50

A motion for judment as a matter of law (JMOL) must specify the judgment sought and th elaw and facts that entitle the movant to the judgment.

Motion will be granted if:
* no-pmoving party has been fully heard on an issue during a jury trial AND
* court finds that a reasonable jur ywould not habve a legally sufficient basis to rule in favor of the non-moving party.
* Court must draw all reasonable inferences in the light most favorable to the opposing party

Court cannot reverse a denail of a motion for JMOL unless jury’s factual findings are:
* not supported by substantial evidence OR
* if legal conclusions from the verdict are not supported by factual findings.

A court may reserve ruling on JMOL made at the close of evidence for a post-verdict decision.

Deadline: Any time before the case is submitted to the jury.

Question 51

Renewed JMOL
(“Judgment Notwithstanding the Verdict”)

MED

Answer 51

A party may renew its motion for JMOL only if that party moved for JMOL before the case was submitted to the jury.

The court may:
* allow judgment on the verdict
* order a new trial OR
* direct the entry of JMOL

Deadline: 28 days of the entry of judgment.

Question 52

Motion for a New Trial

LOW

Answer 52

A motion for a new trial can b e grantd by the court for any reason for whic ha new tria lhas been previously granted in federa court.

Such reasons include:
* an error at trial that makes the judgment unfair
* new evidence surfaced that could not have been obtained with due diligence for the original trial
* prejudicial miscconduct of aparty, attorney, third party or juror
* judgment was against the weight of evidence or
* the verdict was excessive or inadequate

Deadline: 28 Days after entry of judgment

Question 53

Preclusive Effect of a Default Judgment

Low

Answer 53

A default judment has a preclusive effect if the rendering court had jurisdiction over the claims AND the parties in the action (both subject matter and personal jurisdiction).

A state court must give a judgment rendered in a federal diversity action the same effect it would accord a jdument rendered in a state court under law.

Question 54

Claim Preclusion
(Res Judicata)

MED

Answer 54

Claim preclusion precludes the parties in an action from subsequently re-litigating any claim that was or could have been raised in that action.

Elements:
* parties are identicial or in privity
* judgment in prior action was rendered by a court of competent jurisdictoin
* prior action was concluded by a final judgment on the merits AND
* same claim was involved in both actions (claim arises out of same transaction or occurence).

Joint Claims: Plaintiff can brins separate actions against alleged joint tortfeasors whose liablity are joint and several, but not against tortfeasors whose liablity is derivative.

Question 55

Claim Preclusion - Privity
(Res Judicata)

MED

Answer 55

Generally only a party to first action is bound by prior judgment.

Exception: Sufficient privity when
* a party who agrees t obe bound by the action
* a substantive legal relationship between the two parties (assignee, succeeding property owners, etc)
* a parthy that was adequately preresented in a class action or by a trustee
* the party assumed ontrol over first action
* a party seeking to re-litigat ethrough a proxy and
* when a special statutory scheme expressly precludes successive litigation by non-parties

Note: Cose family relationships by themselves are not sufficient to establish privity.

Question 56

Issue Preclusion
(Collateral Estoppel)

HIGH

Answer 56

Issue Preclusio precludes a party from attempting to retr y an issue if there has been a final judgment on the merits.

Elements:
* a valid and final judgment was rendered in the first action
* the issue is identical to the issue decided in the prior action
* the issue was actually litigated, determined and essential in the prior action AND
* the party against whom enforcement is sought against had a full and fair opportunity to litigate the issue in the first action.

Note: A judgment entered pursuant to settlement can’t be used for issue preclusion - no determination was made by court.

Question 57

Exceptions to Final Judgment Rule

HIGH

Answer 57

54(b): Appeal allowed when (i) action has multiple parties or claims (ii) court entrs final judgment for some of the claims or parties and (iii) court expressly detemrines that there is no just reason for delay.

Statutory: Under federal law, certain orders are appealable by right including injunction, rceiverships, orders affecting possession of property, liability in an admiralty action and patent infringement orders.

Certified Appeal: Elements - (i) federal judge certifies certain grounds for immeidate appeal AND (ii) court of appeals agrees t opermit appeal. Application for appeal must be made within 10 days of order entry. Cetrticiations granted for (i) controlling question of law, (ii) where substnatial ground for difference of opinion exists or (iii) an immediate appeal may materially advance the ultimate termination of the litigation.

Question 57

Final Judgment Rule

HIGH

Answer 57

In federal court, a party may only appeal fro a final judgment or decision.

A final judgment is one that ends the litigation on the merits (all claims are resolved).

Appeal is precluded from any decision that adjudicates some but not all claims in the action.

Deadline: Appeals must be filed within 30 days after entry of the judgment appealed from.

Question 57

Exceptions to Final Judgment Rule - Cont.

HIGH

Answer 57

Collateral Order Doctrine: Allow an immediate appeal when the interlocutory order (temporary court ruling): (i) consclusivelly determines the disputed question, (ii) resolves an important issue completely seperate from the merits of the action AND (iii) is effectively unreviewable on appeal from a final judgement. Doctrine does not allow an interlocutory order concerning enforcement of a forum selection clause.

Writ of Mandamus or Prohibition: When there is an abuse of judicial authority by a trial court, a party may seek a writ of mandamus or prohibition to have a federal appellate court review the trial court’s ruling. Issued only in exceptional circumstances and can’t be used to correct an ordinary error.

Question 58

Exceptions to Final Judgment Rule Cont. 2

HIGH

Answer 58

Pendent Appellate Jurisdiction: a party may seek to have a non-final order reviewed along with another appealble order currently pending before the appellate court when (i)) a non appealble decision is inextricably intertwined with an appealble decsion or (ii) when review of the non-appealable decision is necesary to ensure a meaningful review of hte appealable decision.

Certification of Class Action: AN order grnating or denying class-action certifictation may be appealed when: (i) petition for permission to appeal is filed within 14 days after order is entered AND the Court of Appeals agrees to hear the appeal (court has discretion).