Civ Pro Flashcards
1
Q
What is the difference between a federal court’s subject matter jx and a state court’s SMJ?
A
Federal courts have LIMITED smj State courts have UNLIMITED smj (assume state courts always have jx over any kind of case unless given a contrary statute)
2
Q
Can either party waive the lack of SMJ?
A
NO!!! lack of SMJ cannot be waived by failing to object or by affirmative consent
3
Q
When can lack of SMJ be raised? By who can it be raised?
A
Lack of SMJ can be raised by ANY PARTY (P, court, D) at ANY TIME (even on appeal)
4
Q
What are the two ways to get SMJ?
A
Federal question jx diversity jx
5
Q
What is federal question jx?
To what does one look to determine whether it exists?
A
FEDERAL QUESTION JX = You have SMJ for a claim ARISING UNDER FEDERAL LAW
TO FIND: Look at the face of PLAINTIFF’S COMPLAINT
- only P’s claims count: EXISTENCE OF FEDERAL DEFENSE IS IRRELEVANT
6
Q
When does a federal court have diversity jx? Exceptions?
A
Diversity jx exists when case is between:
- citizens of different states, or
- citizens of a state and a foreign country, AND amount in controversy (AIC) exceeds $75,000
EXCEPTIONS—even if diversity exists, can’t use it for:
- probate actions (wills) and
- domestic relations actions
7
Q
What does it mean for there to be complete diversity? Are there exceptions to the requirement of complete diversity?
A
ALL plaintiffs must be diverse from ALL defendants
Minimal diversity = any P is diverse from any D, even if others overlap
Minimal diversity is acceptable in certain situations:
- Federal Interpleader Act
- Class actions with claims more than $5 million
- Interstate mass torts if:
- at least 75 people have died in one accident AND
- Ds are from many different states
8
Q
When must complete diversity exist?
A
when complaint is FILED (it’s fine if diversity doesn’t exist when cause of action arose or when case comes to trial)
9
Q
How do you determine an individual’s citizenship for a diversity action? an alien?
A
an individual is the citizen of a state/country of DOMICILE:
- DOMICILE = US citizen + permanent residency
- permanent resident = residency + intent to remain indefinitely there
- If ALIEN (citizen of foreign nation): citizen of foreign country
- if permanent resident, treat as citizen of state in which she’s domiciled
10
Q
What rules apply in determining diversity regarding a representative party?
A
Citizenship of representative party controls
EXCEPTIONS
- for litigation re: decedent’s estate, citizenship of decedent controls
- for guardian/rep of minor/incomptent, infant’s/incompetent’s citizenship controls
11
Q
What rules apply in determining diversity regarding a class action?
A
citizenship of NAMED or REPRESENTATIVE PARTIES count
unnamed class members can join without regard to citizenship
12
Q
What rules apply in determining diversity regarding a corporation?
A
can have SEVERAL CITIZENSHIPS AT ONCE
citizen of:
- state/states/nations where it’s INCORPORATED
- state/nation where it has its PRINCIPAL PLACE OF BUSINESS (hq(s))
13
Q
What happens if Plaintiff is from maryland and D is a corporation incorporated in DE and NY with its PPB in MD?
A
NO DIVERSITY! Must check EVERY citizenship
14
Q
What rules apply in determining diversity regarding a partnership or an unincorporated association? to what does this rule apply?
A
a partnership/unincorporated association is a citizen of EVERY STATE OF WHICH ITS MEMBERS ARE CITIZENS applies to partnerships, LLPs, trade assns, and unions
15
Q
What are devices available to create/destroy diversity? When are these permissible?
A
these are okay as long as they are NOT SHAMS OR FRAUDULENT:
- moving (even if it’s done with purpose of affecting diversity, just has to be genuine change in domicile)
- assignment of claim: permitted as long as real (i.e., for VALUE) and complete (not COLLUSIVE)
- NB: partial assignment for debt collection does NOT affect citizenship if assignor retains interest in claim
16
Q
What amount is required to have diversity jx? Does it need to be proven?
A
must EXCEED $75,000, exclusive of interest and costs
any GOOD FAITH allegation will suffice
- only when it appears to a LEGAL CERTAINTY that AIC will not be met will it be dismissed
17
Q
When is aggregation of claims allowed in order to get diversity jx?
A
1 P v. 1 D: Allowed, regardless of claims’ relatedness
1 P v. 2+ Ds: P cannot aggregate claims against different Ds (NEED $75k for EACH D)
2+ Ps v. 1D: Ps cannot aggregate claims against D (could use supplement jx though)
18
Q
What’s the difference between removal and transfer?
A
Removal = state to federal
transfer = from one fed court to another fed court
19
Q
When is removal proper?
Who can remove?
If multiple Ds, what happens?
Anything extra if removal based on diversity jx?
Time limits on removal?
A
REMOVAL IS PROPER WHEN case could have been brought ORIGINALLY in fed court (P WOULD HAVE HAD SMJ)
- ONLY Ds can remove
- all Ds consented to removal within 30 days
- IF BASED ON DIVERSITY:
- diversity jx reqs are met
- brought in state in which NO Ds ARE CITIZENS
- removal is brought within one year of commencement of action
- UNLESS P’S BAD FAITH MADE IT UNREMOVABLE
20
Q
What happens when a D removes?
A
- notice of removal is filed in federal court, with a copy to state court
- state court’s jx ends AUTOMATICALLY
- P can file in FEDERAL COURT for remand, and federal court hears that
21
Q
What is the basic rule of supplemental jx? Is a court required to hear a case over which it has supplemental jx?
A
Allows a federal court with SMJ to hear additional claims that don’t independently have SMJ if ALL CLAIMS CONSTITUTE SAME CASE/CONTROVERSY
- same case/controversy = arise out of same transaction or occurrence
- DISCRETIONARY
22
Q
What limits apply to supplemental jx in a diversity jx case?
A
Must still be same case/controversy
NO SUPP JUR over:
- claims by Ps against persons made party under r. 14, 19, 20, 24
- claims by parties seeking to intervene as Ps under r24
- claims by parties proposed to be joined as Ps under r19
- (basically any PLAINTIFF’S CLAIM AGAINST NEW/ADDED Ds)
- Claims by Ds ARE JUST FINE!
23
Q
When can a counterclaim in a diversity action be allowed under supplemental jx?
A
IF COMPULSORY (i.e., arising out of same case/controversy), then fine if by D (because no limits) IF PERMISSIVE (different occurrence): not allowed under supp jur
24
Q
When can a cross claim (p v. p or d v. d) in a diversity action be allowed under supp jx?
A
Must arise out of transaction or occurrence that’s subject of action or of counterclaim can’t be brought by P against new party
25
When is supp jx allowed in cases of multiple Ps against a single D?
since a single D is not made a party under rules 14/19/20/24, then multiple Ps can bringin RELATED claims against D even if they don't satisfy AIC reqs
26
What are the two questions one must always ask when evaluating whether a court has PJ over a defendant? (REMEMBER FOR ESSAYS)
1. has the basis for exercising PJ over an out-of-state defendant been authorized by statute (typically long arm) or rule of court?
2. Is the particular basis for PJ permitted by the due process clause of the US Constitution?
27
What are the constitutional limits under the DP clause of a court exercising PJ?
DP requires MINIMUM CONTACTS between DEFENDANT and forum state such that it's consistent with TRADITIONAL NOTIONS of FAIR PLAY and SUBSTANTIAL JUSTICE to sue D there.
Minimum contacts = PURPOSEFUL AVAILMENT BY DEFENDANT of protections of forum's law.
28
Can one waive objection to lack of PJ?
YES! by either:
1. under federal rules, lack of PJ is waived if not raised AT FIRST OPPORTUNITY
* (either pre-answer motion or answer)
2. OR SUBSTANTIAL PARTICIPATION ON THE MERITS waives PJ objection
* (same thing, basically)
29
What's the difference between general and specific in personam jx?
general = ANY CLAIM WHATSOEVER
specific = P's claims against D must arise out of/directly relate to D'S CONTACTS WITH FORUM
* governed by long arm statute
30
What are the bases for general in personam PJ?
1. physical PRESENCE within state
* --exception: if only there to answer SUMMONS
* --exception: brought to state by FORCE or FRAUD
2. DOMICILE
* independent of physical presence
3. CONSENT
* can be given by K as long as reasonable
4. corporations when AT HOME in forum state = -
* INCORPORATION
* PPB
* mayyyyybe when operations there are so CONTINUOUS AND SYSTEMATIC as to make it at home (but hasn't happened yet)
* merely doing business is not enough
31
How does a court get specific in personam PJ over a D?
STATE LONG ARM STATUTES cover basically everything, as long as the claim ARISES OUT OF THE TRANSACTION INVOLVING THAT STATE
READ THE STATUTE!!
32
When does a federal court have broader PJ than its state courts?
1. Federal Interpleader Act (statutory interpleader): sometimes congress authorizes NATIONWIDE service of process
2. BULGE provision of federal rules: allows service 100 MILES of federal courthouse in two situations:
* impleading third-party Ds under R14
* joining necessary parties under R19
3. weird scenario in which D is not subject to PJ in ANY STATE COURT
33
What is the test to determine if notice and service of process is constitutional?
Notice must be REASONABLE under the circumstances
34
What are the proper forms of service of process under the FRCP?
1. whatever the STATE ALLOWS
2. in hand PERSONAL delivery (you've been served)
3. leaving summons at D's DWELLING with a person of SUITABLE AGE AND DISCRETION
4. delivery of summons to AUTHORIZED AGENT
5. for ppl in foreign nations, service can be made by REGISTERED MAIL, return receipt requested
35
What is required for service of process on an infant?
service on infant AND ON PARENT/GUARDIAN
36
What is required for service of process on an adjudicated incompetent?
service on incompetent AND HER GUARDIAN
37
What is required for service of process on a corporation?
service on an:
* OFFICER
* DIRECTOR
* MANAGING AGENT, or
* APPOINTED AGENT
38
What is required for service of process on a non-resident motorist?
some states allowed service to be made on STATE OFFICIAL who then FORWARDS copy to D
39
What is required for service of process for in rem or quasi in rem actions?
1. must first make a DILIGENT EFFORT to locate all claimants to property and serve them personally
2. IF YOU CAN'T FIND THEM: notice by PUBLICATION is permitted
40
What does the question of venue address?
Whether this DISTRICT is a proper court to hear this action
41
Who is responsible for objecting to venue?
DEFENDANT!
42
When is an objection to improper venue waived?
Must be made at FIRST OPPORTUNITY (pre-answer motion or answer) or it is WAIVED
43
When is federal venue in a certain district proper?
Venue is proper in a district:
1. where ANY DEFENDANT RESIDES, IF ALL Ds reside in SAME STATE
2. where CLAIM AROSE
3. if neither of the above, any district where D is subject to PERSONAL JURISDICTION is proper venue
NB: P's residence is irrelevant!
44
For venue purposes, where is one's residence?
Same as PJ!
individual = domicile
corporation = anywhere with PJ
45
What venue is proper in a case that began in state court and is removed?
Venue is automatically proper in the federal district where the STATE COURT SITS, even if that district would NOT BE PROPER ORIGINALLY!
46
When is transfer proper?
Transfer is only allowed to a district with PROPER VENUE, UNLESS ALL PARTIES AGREE to district without proper venue
47
What happens to a case brought in district without proper venue?
1. may be DISMISSED, or
2. transferred to a district with PROPER VENUE
48
Which law applies in a case that has been transferred?
if transferred from a district WITH PROPER VENUE, the law of the transferor (first) forum controls
if transferred from a district WITHOUT PROPER VENUE, the law of the transferee (second) forum controls
49
which law (federal or state) applies in a diversity action?
In a diversity case, a federal court applies STATE SUBSTANTIVE LAW and FEDERAL PROCEDURAL LAW (erie)
50
What is considered substantive law, and thus is governed by state law?
1. rules that govern conduct
* i.e., what must be proved to win a case; defenses
2. state STATUTES OF LIMITATION
3. BURDENS OF PROOF
4. CHOICE OF LAW rules
51
What is considered procedural, and thus is governed by federal law?
ANYTHING COVERED BY THE FRCP!
52
What does a federal court in diversity do when there are no federal statutes or rules on point?
If substantive --\> state
if procedural --\> federal
To determine, look at TWIN AIMS of Erie:
1. avoid forum shopping
2. avoid inequitable administration of justice
Meaning: if choice of PROCEDURE would be OUTCOME DETERMINATIVE, then apply STATE LAW
53
In a diversity action, what law governs rules relating to the role of the jury?
ALWAYS FEDERAL LAW, regardless of twin aims
54
How does a federal court, sitting in diversity, determine the applicable state law?
1. PRECEDENT from highest state court
2. if none, PREDICT how highest state court would rule
3. give RESPECTFUL, yet NON-BINDING attention to decisions of LOWER STATE COURTS
55
When is a case officially commenced?
Federal civil actions begin with the filing of a COMPLAINT
for diversity actions, STATE LAW controls when an action is begun
56
What are the three types of pleadings?
complaint
answer
reply
57
What are the required elements of a complaint?
1. short and plain statement of the court's SUBJECT MATTER JURISDICTION
2. short and plain statement showing claimant is entitled to RELIEF; and
3. CLAIM FOR RELIEF sought
58
Is recovery limited by the claim for relief stated in the complaint?
NO! you get what you prove, not what you ask for.
EXCEPT: in DEFAULT judgments, you can't get more than you plead
59
What is level of proof is required in the complaint?
NOTICE pleading (low burden): only a SHORT and PLAIN statement of the claim showing that pleader is ENTITLED TO RELIEF
just FAIR NOTICE of claim
60
When is special pleading required, and what exactly is required?
Must allege with PARTICULARITY/SPECIFICITY/DETAIL:
1. FRAUD or MISTAKE
2. claims for SPECIAL DAMAGES
* special damages = those that don't ORDINARILY FOLLOW THE WRONG
61
What limits exist on notice pleading?
Twiqbal!
Must show a plausible case for recovery, CANNOT JUST STATE LEGAL CONCLUSIONS
62
Define: motion to dismiss motion for judgment on the pleadings motion for a more definite statement motion to strike
* MTD: can raise lack of SMJ, lack of PJ, improper venue, failure to state a claim, failure to join a necessary party, or forum non conveniens
* motion for judgment on the pleadings: applies when all facts are agreed upon and only law is in dispute
* more def statement: asks that pleading be made more specific
* motion to strike: can be used to delete IRRELEVANT matters or to strike a legally INVALID DEFENSE
63
When can one file a motion for judgment on the pleadings?
only when there is NO FACTUAL DISPUTE
64
What does the failure to respond to a complaint or a certain allegation in a complaint constitute?
ADMISSION (can be amended obvi)
65
When must an answer be filed?
WITHIN 21 DAYS of service of the pleading to which it responds
66
When can a pleading be amended?
may be amended AS OF RIGHT:
* ONCE at ANY TIME WITHIN 21 DAYS of service, OR
* within 21 days of D's response (if there is one)
after it's been amended once:
* requires LEAVE OF COURT, which should be FREELY GRANTED
67
What happens if a complaint is filed within the SOL period, but the plaintiffs want to amend it after the SOL has run?
IF the amendment concerns the SAME CONDUCT, TRANSACTION, or OCCURRENCE as the ORIGINAL pleading, then it "relates back" and the SOL does not preclude the amendment
key is notice: it can't surprise the opposing party. if it does, it's TIME-BARRED.
68
When can a plaintiff amend his complaint to add or change a party after SOL has run?
same amendment rules (same conduct/transaction/occurrence)
party to be added must have KNOWN or HAD REASON TO KNOW that the action should have been brought against them but for a mistake
69
Must pleadings be sworn to, i.e., verified?
NO! they can be, but they don't have to be
70
Who must certify a pleading and how?
ATTORNEY OF RECORD must certify (SIGN) any pleading, motion, discovery request, etc.
must also include attorney's contact info
71
What is the significance of a pleading being certified?
Certifies there is an appropriate LEGAL AND FACTUAL BASIS for filing.
Atty certifies that to the best of her knowledge AFTER REASONABLE INQUIRY:
* no improper purpose
* legal contentions are warranted
* factual allegations have evidentiary support
Violation can be raised by court or party in motion for sanctions (MTD, rule 11 sanctions, atty bears costs)
72
Can minors or incompetents sue?
only through a GUARDIAN
73
When/how can partnerships get SMJ?
can sue as a partnership via FQJ
if suing in diversity, every partner's citizenship status counts
74
What's the difference between:
permissive joinder
compulsory joinder
intervention
interpleader
1. permissive joinder = can join (R20)
* ANY ### of Ps can join (and any number of Ds can be joined) if claims arise out of same transaction AND common q of law/fact
* STILL NEED SMJ for EACH
* CANNOT join a party that would kill diversity in diversity case
2. compulsory joinder = must be joined (R19)
* necessary party = one whose participation is necessary for a JUST adjudication. MUST BE JOINED IF FEASIBLE
* (feasible = doesn't kill SMJ and court has PJ over D)
* if necessary party cannot be joined, show goes on
* if indispensable, court can dismiss suit
3. intervention = outsider hopping in (typically Ps)
* intervention AS RIGHT: when outsider's interest would be COMPROMISED
* PERMISSIVE intervention: allowed whenever common question of law/fact (but must ask court's permission)
* timely: "reasonable promptness"
* when in diversity, NO SUPP JUR (must satisfy diversity reqs)
4. interpleader = resolving competing claims to same property
* Comes from Federal Interpleader Act (only federal court)
* REQS:
1. only need $500
2. nationwide service of process allowed
3. venue proper in any district where claimant resides
4. SMJ allowed based on MINIMAL DIVERSITY
75
When can claims between one P and one D be joined?
All claims may be joined, need not be related
76
When must a compulsory counterclaim be pleaded?
What jx is available for compulsory counterclaim?
Permissive counterclaim?
Compulsory = in current action, LOST OTHERWISE
* compulsory = same transaction/occurrence
* supp jur typically available for these
Permissive = raised now or later
* permissive = not same occurrence
* require independent jx basis
77
When does the SOL toll for a compulsory counterclaim?
Once you've filed ORIGINAL claim, that tolls SOL for ANY COMPULSORY COUNTERCLAIMS TOO
78
When does the SOL toll for a permissive counterclaim?
only when it gets filed! original claim cannot save it
79
what is a cross-claim? how can a cross claim be compulsory?
= claims asserted against a co-party.
MUST ARISE OUT OF SAME TRANSACTION/OCCURRENCE as original claim or counterclaim!
THEY NEVER ARE COMPULSORY YOU FUCKING MORON!!
80
What is impleader?
When does it typically apply?
What is the jx basis?
bringing in a third party who may be liable to D for P's claim against him
applies in two scenarios:
1. 1)JOINT TORTFEASORS
2. INDEMNIFICATION Ks
jx = SUPP JUR
* citizenship of third party d irrelevant
* AIC against 3pd irrelevant
* only extends to claims BY DEFENDANT against 3pd
* Personal jur = bulge provision (100 miles from courthouse)
81
What are the four prerequisites for a class action?
1. Numerousness (too many people to be joined normally)
2. common qs of law or fact
3. typicality of claims by class representatives
4. adequacy of representation
82
How is a class action dismissed/settled?
only with JUDICIAL APPROVAL
83
What are the diversity jx rules for class actions?
named reps must be completely diverse from Ds and at least one P must have a claim worth more than $75,000
BUT if huge (100+ members and $5mil+ at stake), only minimal diversity needed
84
What is the general rule regarding the scope of discovery allowed?
RELEVANCE!
you can discover anything that may be admissible at trial OR that might LEAD TO something admissible at trial
NEED NOT BE ADMISSIBLE (e.g., hearsay is discoverable, though inadmissible)
85
What limits discovery's scope?
PROPORTIONALITY: discovery is limited to the matters that are proportional to the needs of the case
i.e., does the burden/expense of the discovery outweigh its likely benefit?
86
What are the exceptions to discovery? i.e., what cannot be discovered?
1. things covered by evidentiary PRIVILEGE
2. attorney work-product
3. protective orders by judge
87
What does the attorney work product rule protect?
What is the result/can it be overcome?
What are the special cases?
PROTECTS:
1. documents and things (NOT INFORMATION)
2. prepared in ANTICIPATION OF LITIGATION
3. by or for ANOTHER PARTY or her representative
RESULT: qualified immunity from discovery
can be overcome if other party shows:
1. a NEED for the doc/thing;
2. that the info CAN'T OBTAINED ELSEWHERE
SPECIAL CASES:
1. you can ALWAYS get a copy of YOUR OWN statements;
2. you can NEVER discover the MENTAL IMPRESSIONS of a lawyer
88
What is discoverable regarding experts?
IF TESTIFYING AT TRIAL: can always discover expert's report, amount of compensation, facts, data, assumptions, etc
IF NOT TESTIFYING: no discovery except under exceptional circumstances
89
How many depositions is a party allowed to have?
How long can they be?
How can you get the deposed person there? What if you need them to bring documents or things?
10 max (unless court allows more)
each limited to one 7 hour day (unless court allows longer)
any kind of notice to a party, but a subpoena required for a non-party
to get them to bring something: use a subpoena duces tecum
90
how many interrogatories can one use?
against whom?
when is a response required?
can they respond with business records?
* 25 max (unless court allows more)
* against parties only
* response required within 30 days
* may respond with records as long as answer can be ascertained via substantially the same burden for each party
91
When can a lawyer order a physical or mental exam of a person?
1. must be a party
2. party's physical/mental condition must be in controversy
3. only for good cause shown
92
What is a request for admission?
What results from a failure to respond?
What is the effect of an admission?
* Streamlines litigation by asking for admissions
* failure to respond within 30 days is an ADMISSION
* admissions are binding in the litigation but have NO PRECLUSIVE EFFECT (i.e., not binding in a future lawsuit)
93
When can a deposition be admitted at trial?
1. depo of adverse party is admissible as admission of party opponent
2. depo of mere witness can be used to IMPEACH that witness
3. depo of a witness who does NOT TESTIFY can be used only if witness is dead/beyond power of court/otherwise unavailable
4. can be used if witness is more than 100 miles from place of trial
94
What are the three circumstances under which a court can immediately impose sanctions?
COMPLETE DEFAULT:
1. failure to attend one's own dep
2. failure to respond to interrogatories
3. failure to respond to request for documents/things
Otherwise, need an order
95
What happens if electronically stored info is lost?
* If lost through UNREASONABLE CONDUCT:
* court may order measures to cure the prejudice to the other party
* if destroyed with INTENT TO PREJUDICE OPPOSING PARTY:
* court may instruct jury to PRESUME EVIDENCE WAS UNFAVORABLE,
* or even END THE CASE
96
What are the five devices via which a party can move to terminate a case without a trial?
1. Judgment on the pleadings
2. default judgment (D doesn't show)
3. voluntary dismissal (without prejudice)
4. involuntary dismissal (with prejudice)
5. summary judgment
97
What is a voluntary dismissal?
When can a plaintiff voluntarily dismiss her case?
voluntary dismissals are WITHOUT PREJUDICE (they can be brought again)
P has a RIGHT to voluntary dismissal ONCE at anytime BEFORE D's SERVING an ANSWER or MSJ!
* (MTD does not cut off right)
After Answer or MSJ, or if P has already voluntarily dismissed once:
* P must SEEK LEAVE OF COURT for dismissal without prejudice.
* (P will pay costs, often, if they re-file).
98
What is an involuntary dismissal?
When is it with/without prejudice?
involuntary dismissal is typically WITH PREJUDICE: can't bring it again.
WITHOUT PREJ in three scenarios:
1. lack of JURISDICTION
2. improper VENUE
3. failure to join an INDISPENSABLE PARTY
WITH prejudice often for:
* failure to prosecute (like default but with P)
* failure to comply with FRCP or court order
99
What is the standard of appellate review for the appeal of an involuntary dismissal?
ABUSE OF DISCRETION
100
What's the difference between summary judgment and a motion to dismiss for failure to state a claim upon which relief can be granted (12b6)?
12b6 tests ONLY LEGAL SUFFICIENCY of P's claim
SJ can be used to test BOTH FACTS AND LAW
101
Can summary judgment be partial?
YES, can be for whole case, only certain parties, certain claims, certain defenses, or certain issues
102
what is the standard for summary judgment?
no GENUINE DISPUTE as to any MATERIAL FACT and moving party is entitled to judgment as a MATTER OF LAW.
* genuine dispute = NO REASONABLE JURY could find for nonmoving party
103
What must support a motion for summary judgment?
SWORN STATEMENTS that are BASED ON PERSONAL KNOWLEDGE
* depos
* answers to interrogatories
* affidavits
* stipulations
104
When does one have a right to trial by jury?
for legal issues (damages), not equitable issues
NO RIGHT TO JURY FOR:
* injunction,
* specific performance,
* admiralty issues
105
What happens to the jury right if a case involves questions of law AND equity?
try the LEGAL (damages) issues first, no matter the order in which they arose
106
When must a demand for jury trial be made?
within 14 days after service of the LAST PLEADING directed at the issue
107
How many peremptory challenges does each side get to strike a juror without cause? Any limits?
3! Cannot be used for reasons of race or gender
108
What is required of the court when one party requests particular jury instructions?
court must provide opportunity to OBJECT to proposed instructions
objections must be made:
1. on the RECORD
2. for STATED REASONS
3. BEFORE jury retires to deliberate
109
What is a motion for a judgment as a matter of law?
basically a MSJ AFTER TRIAL HAS BEGUN
110
What is the standard for a JMOL?
same as MSJ: viewing evidence in most favorable light to nonmovant, EVIDENCE CANNOT SUPPORT a verdict for nonmovant.
111
what is a renewed motion for JMOL? Reqs?
renewal of a Motion for JMOL AFTER JURY'S VERDICT
Standard is the same
PRIOR JMOL MOTION REQUIRED at close of evidence
112
What is remittitur?
When the court deems the verdict was SERIOUSLY EXCESSIVE, it can make an offer to do a new trial or to reduce the verdict
113
When are appeals typically available?
when a judgment is FINAL
114
can a court render a PARTIAL final judgment?
yes, by EXPRESSLY designating the order as final
115
When does a judgment BECOME final?
when entered by the CLERK on the court's DOCKET (not when announced by the judge)
116
When must notice of appeal be filed in the trial court? Alternatives to a notice of appeals?
within 30 days of entry of judgment
timely post-judgment motion (e.g., new verdict) tolls the 30 day limit
117
What are interlocutory orders? examples?
orders IMMEDIATELY APPEALABLE AS OF RIGHT
* orders granting/modifying an INJUNCTION
* order changing/affecting POSSESSION OF PROPERTY
118
What are discretionary interlocutory appeals?
any interlocutory (non final) order is appealable with LEAVE OF COURT
trial court certifies:
* issue involves a CONTROLLING Q OF LAW with SUBSTANTIAL GROUND for difference of opinion
* immediate appeal may MATERIALLY ADVANCE termination of litigation
appellate court must agree to accept appeal
119
What can be interlocutorily appealed re: class actions?
appellate courts have DISCRETION to hear interlocutory appeals from orders CERTIFYING or REFUSING TO CERTIFY a CLASS ACTION.
120
What is a collateral order doctrine? Main e.g.?
authorizes immediate appeal of collateral orders
DENIAL OF MTD FOR FORUM NON CONVENIENS CAN BE APPEALED INSTANTLY (because it's saying this forum is so fucking annoying to have a trial at)
121
What is a writ of mandamus?
provides for immediate appellate review of an order that is an ABUSE OF AUTHORITY
122
What standard is used by the appellate court for questions of law?
What does that entail?
DE NOVO:
1. did trial court make an error?
2. was it prejudicial?
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How do appellate courts review findings of fact?
* jury verdicts must be affirmed if supported by SUBSTANTIAL EVIDENCE
* judge's findings of fact must be affirmed unless they are CLEARLY ERRONEOUS
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What standard is used by the appellate court for matters of discretion? What does that entail?
ABUSE OF DISCRETION
* if it's a reasonable decision, upheld
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What are the two questions to be asked, in order, when considering a preclusion problem?
1. is the CLAIM in the second suit precluded by prior adjudication? if yes = end of case.
2. if not, are there any ISSUES in the second suit precluded by prior adjudication?
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What are the requirements of CLAIM PRECLUSION?
1. a FINAL judgment ON THE MERITS in first suit
2. second suit must have been between SAME PARTIES or their SUCCESSORS IN INTEREST; and
3. second suit must involve same CLAIM or cause of action or claim that COULD HAVE BEEN BROUGHT IN FIRST CASE
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For prong 1 of claim preclusion (final judgment on the merits), need there be a trial?
NO, just have to bring claim and lose, not necessarily at trial
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For claim preclusion, what constitutes a "claim" such that it was brought before?
ALL LEGAL THEORIES to RECOVER FOR HARM arising out of SINGLE TRANSACTION.
* e.g., a K claim and torts claim seeking redress for same injury = one claim
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In a suit over installment sales, for what must creditor sue?
all that is DUE AND OWING AT TIME OF SUIT (can't only sue for jan and feb's $$$ in april, if you also want march's)
FUTURE DEBTS, however, are another claim
* UNLESS there's an ACCELERATION CLAUSE
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What are the three requirements of issue preclusion?
1. SAME ISSUE OF FACT must arise in both suits;
2. issue must have been ACTUALLY AND NECESSARILY DECIDED in first suit, and
3. party TO BE PRECLUDED must have BEEN A PARTY to first suit.
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re: issue preclusion, is it okay if the two suits involve entirely different claims?
YES! just need same issue, decided, against same person
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What is the effect of a default judgment for preclusion?
full claim preclusive, but no issue preclusive effect (nothing actually litigated)
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Who can and cannot assert issue preclusion?
consider who is arguing that the issue IS NOT DECIDED. if that person was party to prior law suit where it was decided, they DON'T GET TO RELITIGATE
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