Civ Pro Bar Flashcards
The two step analysis to satisfy PJ
1) satisfy a state statute AND
2) satisfy the Constitituion (Due process)
(same analysis for state/fed filing)
PJ is clearly constitutional if D is….
1) domiciled in the forum or
2) consents or
3) is voluntarily present in the forum when served with process
PJ - Contact must result from ‘purposeful availmenet (D’s voluntary act; D reaches out to the forum; D targets the forum — D made $ in forum, used the roads, sent a tortious e-mail there, marketed a product there) AND it must be FORESEEABLE that D could get sued in forum
If contact satisfied then analyze RELATEDNESS between contact and P’s claim.
Does P’s contact arise from Def contact with forum
Specific PJ is
where the claim arises from D’s contact with the forum
General PJ is
where the claim does not arise from D’s contacts with the forum. To have general PJ D must be at home in the forum. D is at home where domiciled.
D can be sued for at home in the forum for a claim that arose anywhere in the world (General PJ)
Corporation is always at home where
(1) where incorporated and
2 where it has its principle place of business
PJ - after ‘contact’ and relatedness analyzed, then analyze ‘FAIRNESS’…. Fairness is only assessed in a specific PJ case
1) Look at burden on D and witnesses. Forum OK unless D can show puts him at sever disadvantage in litigation (difficult burden)
2) state’s interest in hearing the suit (always relevant if P is citizen of forum)
3) plaintiff’s interest (may want to sue at home)
summary of constitutional test:
1) Contact (purposeful availment & foreseeability
2) Relatedness (General v. specific)
3) Fairness for Specific only (Burden/convenience; state’s interest; P’s interest)
In rem and quasi in rem jurisdiction
power is over D’s property in the forum. D’s contact with forum must still meet constitutional test.
Subject Matter Juris SMJ is court’s power over the case
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State courts can hear any kind of case, they have General SMJ
Bolivia citizen v. australia citizen re car crash in China allowed.
State’s can’t hear cases arising under fed laws - patents, bankruptcy, antitrust.
Diversity of Citizenship in Fed Court requires
1) case is either (a) between citizens o diff states or (b) between a citizen of a state and citizen of a foreign country (alienage) AND
2) amount in connivery exceeds $75k.
Alien for purpose of Diversity…
Green card alien that is domiciled in US is an alien.
A statute prohibits alienage in fact pattern where P (AZ) sues D (a green card alien domiciled in AZ)
If party is US Citizen domiciled overseas = NOT an alien (P US Cit living in Japan = not alien b/c P US Citizen)
Hot to establish a New Domicile….
Physical presence there AND the intent to make that your permanent home
(intent = taking a job, buying a house, joining civic organization)
Citizenship of Corporation includes
1) State or County where Incorporated AND
2) State or Country of its principle place of business
Citizenship of an unincorporated association (partnership or LLC) is the citizenship of all its members
LLC partnership has partners in 18 states = citizenship of all 18 states.
Amount must be greater than $75,000.01.
Cannot count interest on the claim, but sometimes might be able to recover interest as the claim.
A P who wins less than $75k may have to pay D’s litigation costs. notable b/c usually the winner recovers her costs from the loser.
Aggregation = adding two or more claims to meet the amount requirement.
Even if claims totally factually unrelated. Aggregate. No limit on number of claims that can be aggregated.
For joint claims, use the total value of the claim. P sues joint tortfeasors X, Y, Z for $75,000.01 = allowed.
Equitable Releif. P sues D for injunction.
If either from P viewpoint or D viewpoint is over $75k, then test is met.
P decrease in value is $75k. D’s cost to comply with injunction $75k.
Fed courts will not hear certain types of cases
Divorce, alimiony, child custody, and probate an estate.
FEderal Q cases
Ask if the P enforcing a federal right? P’s claim itself must arise under federal law. Look at P’s claim and ignore other material P alleged.
Supplemental Juris. gets non-federal, non-diversity claims into Fed Court, if the case itself is already in fed court b/c it invoked diversity or FQ.
2 step test (1) Claim we want into Fed court must share a ‘common nucleus of operative fact’ with the claim that invoked fed SMJ. Test is met when claim arises from same transaction or occurrence as the underlying case.
(2) the limitation - certain claims cannot invoke supplemental even if they meet the test.
Limitation = In a diversity case, P cannot use supplemental juries to overcome a lack of diversity.
Summary of Supplemental: a non fed, non diversity claim can be heard in fed court if it meets the test unless….
the claim is asserted by a P…… in a diversity of citizenship case… and asserted against a citizen of the same state as P.
REMOVAL. D sued in state court may be able to remove case to fed court.
D must remove within 30 days of service (not filing) of the first paper that shows case is removable. (30 days of service of process).
All D’s served with process smust join the removal.
P Can never remove
Any case that meets diversity of FQ can be removed. two exceptions:
1) no removal if any D is a citizen of the forum (instate D rule) (can’t remove on basis of diversity if in-state Def.) and (2) no removal more than one year after the case was filed in state court.
D removes to the federal district embruing the state court where case was filed.
D files notice of removal in fed court, stating grounds of removal (FQ or diversity). not a motion.
P can move to remand back to state court within 30 days after D’s removal was filed.
SMJ - lack of jurisdiction can be raised at any time`
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The Erie Doctrine —
applies when diversity case in fed court. fed judge must decide whether to follow state law on an issue.
Step 1: Ask is there some fed law (statute, FRCP) on point that directly conflicts with state law? If yes, apply fed law. This is based on supremacy clause. Fed law is a valid if it does not modify substantive rights, rule is arguably procedural.
Step 2: if no fed law on point, fed judge must apply state law if the issue to be determined is substantive. Substantive issues include (1) elements of a claim or defense, (2) statute of limitations (3) rules for tolling statutes of limitations, and (4) conflict of law rules.
STep 3: if no fed law on point and issue is not one of 4 listed, fed judge must determine if issue is substantive with following factors: outcome determinative, balance of interest between fed and stage systems, and avoiding forum shopping.
P may law venue in any district where ….
- all D’s reside OR a substantial part of the claim arose.
for venue, never matters where P resides.
transfer of venue….
Fed court may transfer case to another fed district court where the case could have been filed (proper venue and PJ over Def.)
Court can transfer to any district if all parties consent.
If original district proper venue, court can transfer based on convenience of parties and witnesses and interest of justice. transfer is always discretionary. Court will look to public/private factors that the transferree court is the CENTER OF GRAVITY
Public factors include what law applies, desire to keep local controversy in local court, community burdened with jury service. Private factors include where the evidences and witnesses are.
Forum non Conveniens….
another court is center of gravity but court dismisses or stays the case.
Service of process includes
1 a summons and 2 a copy of the complaint
Process can be served by….
1 Personal service. 2 substituted service (Process left with D at D’s usual abode and with someone of suitable age and discretion who resides there. 3. service on D’s agent. 4. service permitted by state law, such as service by mail.
Complaint Requirements…
- Statement of grounds of SMJ. 2. short and plain statement of the claim. 3. demand for relief (damages).
The standard for P pleadings in complaint
The plausibility standard. must plead facts supporting a plausible claim.
three matters that P must plead with particularity or specificity
1 fraud. 2 mistake. 3 special damages
Rule 12 requires D to respond in one of 2 ways….
(1) by motion or (2) by answer withn 21 days after service of process.
If d waived service, he gets 60 days from when P mailed waiver form
Rule 12b Defenseses
- Lack of SMJ
- Lack of PJ*
- Improper venue*
- Improper process (prob with papers)*
- imporoper service of process (not served right)*
- failure to state a claim
- failure to join an indispensable party.
all can be put in either a motion to dismiss or in the answer.
2, 3, 4, and 5 are Waivable, so must be put in the first Rule 12 response (motion or answer) or else they’re waived.
The Answer is a pleading. D does 2 things in the answer….
- admit. 2. deny. 3. state that you lack sufficient info to admit or deny.
If D does not deny = admitted.
D must plead/raise affirmative defenses in the answer or they are waived.
classic aff def include SoL, Statute of Frauds, res judicator, self defense.
Counterclaim is a claim against an opposing party.
counterclaim is part of d’s answer.
Always assess SMJ of the counterclaim.
Compulsory CC….
arises from the same TO as P claim. Must file this in the pending case or the claim is waived. This is the only compulsory claim, it’s unique
Permissive CC….
does not arise from the same TO as P’s claim. Not required to file it in this case. May sue on it in a separate case.
Cross Claim is a claim against a co-party.
it MUST arise from the same TO as the underlying action, but is not compulsory, may assert it in this case or sue separately.
Additional claims can be added to a counterclaim or cross claim, even if it has nothing to do with the others.
Must assess the additional claim for SMJ.
P has a right to amend the pleadings ONCE within 21 days after the D serves the first Rule 12 response.
D has a right to amend once within 21 days after serving his answer.
If no right to amend, seek leave of court. Will be granted if justice so requires, which looks at 3 factors….
1) delay (you delayed too long)
2) prejudice (You prej somebody)
3) futility of amendment
Variance = only comes up at trial. Evidence at trial does not match what was plead. D can object b/c evidence is at variance with the pleadings
IF D doesn’t object, P can move to amend the complaint to conform to the evidence.
Amendment Pleadings Relate Back if they concern the same conduct, transaction or occurrence as the original pleading. A new claim can be joined
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To change a D after the Statute has run, will relate back only if…..
1) it concerns same conduct, TO as the original.
2) new party knew of this case within 120 days of its filing, and
3) new party knew that, but for mistake, she would have been named originally.
applies when P sued the wrong D first, but the right D knew about it.
Supplemental pleadings set forth things after the pleading was filed. (amended pleadings about things that happened before the pleading was filed but were not asserted until later).
Ex: p sues d for breach of contract. after case filed, D runs over P with car. P will move to file a supplemental pleading.
Supp. pleading always discretionary with judge.
Rule 11 applies to all docs except discovery.
When lawyer or pro se party signs doc, certified to best of her knowledge after reasonable inquiry that
(1) paper is not for improper purpose
2 legal contentions are warranted by law
3 factual contentions and denials of factual contentions have evidentiary support.
*its a continuing certification, every time you present to the court it applies.
Purpose of rule 11 is to deter, not punish.
if there is a violation, sanctions may be ordered against party, attorney, or firm. Before imposing sanction, court must give you chance to be heard.
often courts impose non$ sanctions. if $, paid to court, not to other party.
If other party violates rule 11, you serve a motion on other parties, then that party has a safe harbor of 21 days to fix the problem and avoid sanctions.
if other party does not fix prob THEN motion can be filed with the court.
Court can raise rule 11 problems on its own (sua sponte)
Discovery: initial discloures must be produced within 14 days of the Rule 26f conference even though no one asks for it.
items that must be disclosed include….
1) ID of persons who have discoverable info that you may use to SUPPORT your claims or defenses (don’t have to disclose ID of person that will harm your case). Failure to disclose means cannot use W in case.
2) Documents and Things you may use to SUPPORT your case (not harmful info). Includes photos, recordings, and electronically stored info (ESI). Includes tangible things (a tire). Only disclose if in your control. Failure to disclose means cannot use material in the case.
3) Computation of $ relief and docs/ESI supporting it.
4) insurance coverage, even though not admissible at trial.
Later in the case, when directed by the court, each party must ID expert witnesses WHO MAY BE USED AT TRIAL
EW is someone who may give opinion testimony, hired to render an opnionin this case.
Must disclose ID of expert and written report prepared by the EW. Rpt must include opinions EW will express, bases for the opinions, facts used to form the opinions, EW’s qualifications, and how much EW is being paid.
Earlier drafts of the EW report are work product, protected.
don’t have to disclose consulting expert.
After EW disclosed, a party may take deposition of the EW
party should subpoena EW to compel her attendance. party must pay the EW a reasonable fee per hour.
Pretrial required disclosure, no later than 30 days before trial, must….
give detailed info about trial evidence, including ID o witnesses to testify live or by deposition and docs/ESI/things to be introduced at trial.
When can a party first request discovery from other parties….. (assuming no court order provides otherwise)
after the rule 26F conference
5 discovery tools to get info from no parties…
1) Deposition (subpeona non party). Subpeona duces mecum required deponent to bring requested materials with her. Can travel more than 100 miles from work/home. Cant take more than 10 repo, can’t exceed 7 hours of repo.
2) interogatories. Written Qs. Can be send to parties only, not non parties. Party has 30 days to respond to interog. Max number of 25 Qs.
3) Requests to Produce (make available for review, copying, includes ESI, enter property). must respond within 30 days stating compliance or objecting. Can subpoena non parties.
4 Medical Exam. Requires court order, must show person’s health is in actual controversy and good cause. Only a party or someone in party’s control (parent/child) can undergo exam. Party seeking order chooses licensed person to perform exam.
- Request for Admission. applies to parties only to amid things. often used to auth. docs.
Depos used at tail to….
impeach the deponent.
any purpose if the deponent is an adverse party.
any purpose if the deponent is unavailable for trial.
Duty to supplement if after responding to discovery, circumstances change.
Even if noone asks.
Scope of discovery: anything relevant to a claim or defense.
relevant includes things that are reasonably calculated to lead to the discovery of admissible evidence.
*its broader than admissible.
Doctrine of Proportionality…
Even if something discoverable is relevant, court has authority to limit if the request is cumulative or fi the burden outweighs the importance of the issue.
You can object to discovery on the basis of evidentiary privilege, like confidential communication between attorney and client.
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Work Product or Trial prep materials…. materials prepared in anticipation of litigation…. is generally protected from discovery.
Work product does not have to be generated by a lawer. includes material by the party or any rep of the paryt.
MUST BE PREPARED IN ANTICIPATION OF LITIGATION.
Qualified Work Product….
Discoverable if (1) substantial need by other party and (2) it is not otherwise available.
Ex: a witness statement.
Absolute Work Product….
Cannot be discovered. Items include mental impressions, opinions, conclusions, and legal theories.
Ex: A PI investigation and conclusion prepared in anticipate not litigation. A PI opinion statement regarding party status as a witness at trial.
privilege log…
claim protection of privilege or work product expressly and describe materials in detail by date, author, recipient, privilege claimed.
Three ways courts get involved in discovery disputes…
1) protective order (if requests for annoyance, embarrassment, undue burden…). Court can deny, limit or permit discovery on certain terms (Ex: trade secret involved, court can issue protective order so its only used in litigation)
2) partial response to discovery request… court will decide whether objections legit.
3) no response to discovery request….
Partial réponse sanctions
move for order compelling party to answer. If party violates the order, RAMBO sanctions plus costs and could be held in competent.
No response to discovery…
only one step = RAMBO sanctions plus costs. non need to get an order compelling answers.
A case may have multiple P and/or multiple D if the claims….
arise from the same TO AND raise at least one common question
A court can force a nonparty into the case if they are necessary and indispensable. An absentee is necessary if they meet any one of 3 tests…
1) without A, court cannot accord complete relief among existing parties
2) A’s interest may be harmed if he is not joined (practical harm), or
3) A claims an interest that subject a party (usually D) to a risk of multiple obligations.
Joint tortfeasors are never necessary
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IF A is necessary, must determine if joinder is feasible. Feasiable if….
1) there is PJ over A and
2) joing A will not mess up diversity juries.
If joinder feasible, court order A’s joinder.
IF A cannot be joined proceed w/o A or dismiss entire case.
Impleader (someone new to case). D is bringing in a third party def, TPD.
NEVER compulsory. Usually for indemnity or contribution.
D doesn’t use if saying not liable at all, only when trying to shift liability.
To implead TPD…
D files a Third party complaint naming TPD and serve process over TPD (must have PJ).
Right to imp lead within 14 days of serving ANS, after that need court permission.
After TPD joined, P may assert claim if from same TO. Same for TPD v. P.
Always check SMJ for each claim individually.
Intervention: nonparty brings self into case. comes in as P to assert a claim or D to defend a claim.
Intervention of right = A’s interest may be harmed if she is not joined and is not adequately represente snow.
Permissive intervention = A’s claim has at least one common question with current case. Discretionary with the court.
SMJ must be assessed
Class Action must have 4 requirements met..
1) numerosity
2) commonality
3) typicality
4) representative adequate.
3 types of class action cases..
1) prejudice (class treatment necessary to avoid prejudice to class members (many claims to limited fund of $)
2) class seeks injunction or decl. judgement b/c D treated class alike.
3) Damages - common Q predominate over individual Q’s and Class action is superior method to handle dispute. Notice required to class members in Class 3 cases. Right to opt out in class 3 case or be bound.
No right to opt out in Class 1 and 2 cases.
As long as class rep is divers from all D, and a along as rep claims exceeds $75k, class action will invoke diversity
Class Action Fairness Act, CAFA. Allows case if any p diverse from any D and aggregated claims exceed $5m. Class must be at least 100 people.
An order that maintains the status quo until trial is…
a preliminary injunction. court order that D do something or refrain from doing something.
PRElim inj. can NEVER be granted ex parte. Always discretionary with court.
Before getting prelim inn, to maintain status quo until hearing on prelim inn a party can seek a….
Temporary Restraining Order. Court can issue Ex part, w/o giving notice to othe party.
TRO Effective no more than 14 days, can be extended another 14 days but no more than 28 days max.
P has a right to take a voluntary dismissal by filing a notice of dismissal, but must do so before D serves her answer or a motion for summary judgment.
Case is dismissed w/o prejudice so P can refile the case.
P can only do once. if P does a second time, then case dismissed with prejudice and P cannot refile.
IF D does not respond to the complain in time (21 days or 60 days if waiver)
P MUST MOTION for a default judgment. Not automatic. Entry of default by the court clerk cuts off Def’s right to respond. Entry of default does not entitle to P to recover, P must get a default judgment to recover:
DEFAULT THEN DEFAULT J.
Clerk can enter default J (after default) if D made no response at all, claim itself is for a sum certain of $, claiming gives affidavit of sum owed, and D is not minor/incompetent.
If any of those not true, P must go to court, judge will hold hearing and D will get notice only if D appeared in the case.
D may move/motion a court to set aside a default or default J by showing good cause …. a viable defense.
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Motion to Dismiss for Failure to State a Claim, 12b6.
Court ignores P’s legal conclusions and looks only at P’s allegations of fact to determine if facts true, would P win a judgement?
Court does not look at evidence, only face of the complaint
SAME Motion if made after D answered, is called a Mtn for Judgment on the pleadings (12b6).
Motion for Summary Judgment (56). (P stated a claim, made it past 12b6, but we might not need a trial)
party moving for sum J must show
1) no genuine dispute of material fact AND
2) she is entitled to judgment as a matter of law.
Court has discretion to eneter. Court CAN look at evidence, in light most favorable to nonmoving party. Pleadings are not evidence. Only evidence if pleading verified.
Any party can move for this no later than 30 days AFTER close of discovery.
Motion can be for a partial judgment.
Rule 26f Conference…
At least 21 days before scheduling conf, parties meet and confer.
They must present to the court a detailed Discovery Plan
Court enters a Scheduling Order, as a roadmap for how the litigation proceeds up to trial.
Pretrial conferences…
Court may hold to process the case and foster settlement.
Final pretrial conference will determine the issues to be tried and the evidence to be proferred at trial. This is recorded in the pretrial conference order; it supersedes the pleadings.
pretrial conference order is a roadmap of issues to be tried, evidence to be presented at trial, witnesses , etc.
Jury trial determines facts and returns the verdict
Judge determines facts in a bench trial.
Motion in limine….
a pretrial motion to decide whether the jury should hear certain evidence.
7th Amendment…
preserves right to jury in CIVIL actions at law, but not in suits at equity.
If both law/equity, jury decides the facts underlying the damages claim but not the equity claim.
Jury issues tried first.
7th does not apply in state court.
Must demand jury in writing no later than 14 days after service of last pleading raising jury triable issue. If don’t waived.
Jury selection process, voir dire, 2 kinds of challenges to jurors that each side can ask…
‘For Cause’ (ex, potential juror won’t be impartial). No limit on amount.
‘Peremptory’ - not need state a reason, just dismiss the juror .Limit of 3 per side. May only be used in race and gender neutral manner.
In fed court, minimum 6, max 12 jurors.
Unanimous verdict required for a jury verdict.
Jury decides facts but instructed on the law by the judge.
parties submit instructions to judge; before final arguments, court informs parties of what instructions it will give. Before final argument, parties allowed to make specific objections to the instructions.
if objections not made before jury charged (given instructions), party cannot raise a problem with jury instructions on appeal. NARROW exception, if party did not object timely, court can consider a jury instruction if it contained plain error that affected substantial rights.
Three types of verdicts…..
1 General - says who wins and what relief is. (J entered by Clerk)
2 Special - jury answers specific Qs about facts about dispute, judge then reaches legal conclusions based on the facts found. (Judge approves judgement and clerk enters it)
3 General verdict with special interrogatories - jury gives a general verdict, but also answers specific Qs submitted to it.
If verdict shows that jury did not follow instructions or it is internally inconsistent…
judgment cannot be entered.
court can then instruct the jury to reconsider its answers or, if reconsideration won’t fix problems, it can order a new trial.
Juror misconduct… court can set aside verdict and order a new trial
verdict may be impeached based on external matters (juror bribed)
Non jurors can give first hand evidence of external matters, like brierby
but jurors cannot give evidence of intrinsic matters = statements made during jury deliberation. except to show extraneous prejudicial information or outside influences.
Non jury bench trial.
Judge records conclusions of law and there are supported from the findings of fact. Judge entered a judgment.
Motion for judgment as a matter of law (JMOL) (Directed Verdict). Aplies in a jury trial. If judge grants, case will not go to jury, judge simply rules for a side.
Motion is based on evidence presented at trial. reasonable people could not disagree on the result.
Its like summary judgment (no dispute of material fact), except that it comes up AT TRIAL instead of before trial.
Party can move for JMOL after the other side has been heard at trial.
Renewed Motion for Judgment as a Matter of Law, RJMOL is same as JMOL but COMES UP AFTER TRIAL.
YOU MUST HAVE MOVED FOR JMOL AT A PROPER TIME AT TRIAL TO BE ABLE TO MOVE FOR RJMOL AFTER TRIAL. IF JMOL NOT MADE AT TRIAL THEN RJMOL WAIVED.
Standard: B/c the jury reached a conclusion that reasonable people could not have reached, RJMOL will be granted = judgment for the party that lost the jury verdict.
Must move for RJMOL within 28 days after judgment.
Motion for a New Trial
= less drastic than RJMOL b/c new trial is starting over, the same party might still win. But RJMOL takes a judgment away from one party and gives it to the other.
Can be based on any non harmless error that makes judge think there should be a do-over. Party moves for this within 28 days after judgment.
Examples: 1) erronous jury instruction by judge
2) new evidence that couldn’t be obtained before
3) misconduct by a jurors or party or lawyer
4) judgment is against the weight of the evidence
5) inadequate or excesive damages
Remittitur….
Court playing hardball with P.
P has choice to take a lesser $ amount (court sets) or go through new trial.
This is allowed in state and federal court.
additur….
court playing hardball with the D.
Gives D choice to pay a greater amount in damages (court sets) or go through a new trial.
Additur only allowed in State Court. Unconst. in Fed Court for violation of 7th amendment.
Motion for Relief from Order or Judgment… asks district four to set aside an order or judgment it entered.
For
1) clerical error…. can be brought any time
2) Mistake ,excusable neglect….. brought in reasonable time (no more than 1 yr)
3) new evidence that could not have been discovered with due diligence for a new trial motion……borught in reasonable time (never more than 1 year)
4) judgement is void (no SMJ)…….Reasonable time (no max)
Final Judgment Rule: Can only appeal from final judgments. Ultimate decision by trial court on merits of entire case.
File notice of appeal in trial court within 30 days after entry o final judgment.
(denial of motion for sum j is not a final judgment)
(grant of motion for new trial not final J)
(Denial of motion for new trial IS a Final J)
(Grant of a motion to transfer to another district NOT final J)
(Grant of motion to remand to state court is NOT appeasable per special statute)
Interlocutory (Non-Final) review - may be appeable even though not a final judgment.
Interlocutory orders appealable as of right: orders granting, modifying, refusing prelim or permanent injunction.
Interlocutory appeals Act: appeal non final order if trial judge certifies the controlling issue of law has substantial ground for difference of opinion and Ct. of Appeals agrees to hear.
Collateral Order Exception:
Court of appeals has discretion to hear ruling on an issue if it
1) is collateral ( distinct from the merits of the case)
2) involves important legal Q
3) is unreviewable if parties must await a final judgment
When more than 1 claim is presented in a case, or multiple parties, trial court may expressly direct entry of final J as to one or more of them if it makes an express finding that there is no just reason for delay
Allows appeal of an issue now if a counterclaim (for ex) is still pending in the case.
Ct. of Appeal has discretion to review an order granting or denying class certification of class action.
Must seek review within 14 days of order.
Extraordinary writ (mandamus or prohibition)….
original proceeding in ape late court to compel trial judge to make or vacate a particular order. not a sub for appeal, only available if lowe court is violating a clear legal duty.
Standard of Review - when district judge decides Q of law
De Novo by appeals court. no deference at all to district judge or what judge said
Standard of Review - when judge gives jury instruction that put burden of proof on wrong side….
De Novo review, b/c content of jury instruction is a Q of law.
Standard of Review - non jury trial, district judge determines Q of FACT
Court of appeals will affirm unless findings clearly erronoues
Standard of Review - jury trial when jury decides Q of FAct
Ct of Appeals affirm unlcess reasonable people could not have made that finding.
Standard of Review - discretionary matters (to grant motion to amend pleadings, to allow permissive intervention, judge decision whether to give a particular jury instruction, etc)
Ct of appeals will affirm unless district court abused discretion
Claim Preclusion….
whether a J already entered in Case 1 precludes litigation of any matters in another case 2.
If in different judicial systems (state v fed), court in Case 2 applies the preclusion law of the judicial system that decided case 1.
Claim Preclusion (Res Judicata), you can only sue on a claim once. 3 steps….
1) case 1 and case 2 were brought by the same claimant against the same defendant. Must be same parties in same configuration.
2) case 1 ended in a valid final J ON THE MERITS. (on the merits unless based on jurisdiction, venue, or indispensable parties)
3) Case 1 and 2 asserted the SAME CLAIM. Majority view: a claim is any right to relief arising from same TO. Minority view: there are separate claims for property damage and personal injuries b/c different primary rights.
Issue Preclusion. Collateral Estoppel. (Narrower)….
1) case 1 ended in valid, final J on the merits
2) same issue was actually litigated and determined in case 1 (went to trial)
3) issue was ESSENTIAL to the J in Case 1. The finding on this issue is the basis for the Judgment.
4) Issue preclusion can only be asserted against somebody who was a party in case 1, or in privity with a party.
5) issue preclusion can by asserted by someone who was a party to case 1.
When someone who was not a party to case 1 tries to use issue preclusion in case 2, it is called NONMUTUAL ISSUE PRECLUSOIN
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NONMUTUAL DEFENSIVE ISSUE PRCLUSION
one using it was not a party to case 1 and is a D in case 2.
Courts say okay as long as the P had a full chance to litigate in CASE 1.
NONMUTUAL OFFENSIVE ISSUE PRECLUSION
one using it was not a party to case 1 and is a P in case 2.
Most courts today would say no. BUT a clear trend in the law is to allow it if it is not UNFAIR.
UNFAIR factors: 1) D in this case had a full and fair opportunity to litigate in case 1
2) D in this case had an incentive to litigate strongly in Case 1.
3) You, P, could not have joined the current D easily in Case 1.
4) No inconsstent findings on this issue. if multiple cases on this issue and in some the D was negligent but some he was not = inconsistent findings. This is the most important factor. If inconsistent findings, it would be unfair for current P to get issue preclusion in this case.
