Civil Procedure

Question 1

What are the 4 ways to establish subject matter jurisdiction?

Answer 1

1. Federal question - A question of federal law must arise in P’s affirmative claim (this is the well-pleaded complaint rule
2. Diversity - Action between citizens of different states + amount in controversy is greater than $75k
3. Supplemental jurisdiction - Allows a claim falling outside federal question (FQ) or diversity jurisdiction to piggyback onto a claim that does fall within FQ or diversity if 1) arises from same transaction/occurrence as anchor claim; 2) no sneaky plaintiff; 3) no other good reason to deny
4. Removal - D can remove from state to fed court if case could have originally been filed in fed court

Question 2

A court can assert jurisdiction over a state law claim that raises a federal issue if the Federal Question is:

Answer 2

i) Necessarily raised;
ii) Actually disputed;
iii) Substantial; and
iv) Capable of resolution in federal court without disrupting the federal-state balance approved by Congress

Question 3

Where can corporations be citizens?

Answer 3

could be citizen of 2 places.

1. Citizen of state where incorporated and
2. state in which it maintains its principal place of business (nerve center)

Question 4

A plaintiff may be being sneaky (and supplemental jurisdiction should be denied) if bringing D’s into diversity case under which rules?

Answer 4

Rules 14 (impleader), 19 (required joinder), 20 (permissive party joinder), or 24 (intervention)

Question 5

Where can unincorporated associations (unions, LLCs, partnerships) be citizens?

Answer 5

citizenship is the citizenship of every member. Could be all 50 states

Question 6

What is the Home-state defendant rule?

Answer 6

D can’t remove to fed court if:

i) Fed jurisdiction would be grounded only in diversity jurisdiction +
ii) D is a citizen of state where P filed suit

Question 7

A state law is constitutional if authorizes Personal Jurisdiction in 1 of 5 circumstances:

Answer 7

a) Residency – If party is a resident (domiciled) of state where suit filed, PJ is constitutional

b) Consent – Party can consent to PJ (3 ways)
1) Appearance: Party appears in court without objecting to PJ (must object to PJ in initial filing or
first appearance before court)
2) Contract: If D Signed K with choice-of-forum clause = consent
3) Appointment: Some states require businesses to appoint agents located in state to receive process =
consent

c) Service – D served with process while in state where suit filed (tag) - Not constitutional if P enticed or force D into the state OR D was in state to participate in a different legal proceeding

d) Minimum contacts – need all 3:
1) D has established a minimum contact with the forum state - Established if D causes harm in the state, does business, or has an interest in real
property in the state
2) Claim against D arises from that contact
3) PJ wont offend traditional notions of fair play + substantial justice

e) “At home” general jurisdiction – very high bar to clear
-For general jurisdiction, business must be so significant that the company, though not
incorporated or headquartered in state, is essentially at home there (exceptional case)

Question 8

What are the 2 major steps to determining personal jurisdiction?

Answer 8

1) Step 1: Look at state law - could a state court in that state assert PJ over that party?
a) Yes – federal court can assert PJ (subject to constitutional considerations)
b) No – if state court cannot, federal court cannot assert PJ either

2) Step 2: Look at 14th Amend à State law must be constitutional under the Due Process Clause (DP) of the 14th Amend.

Question 9

How is venue dictated? (Region within a particular state where suit can be brought)

Answer 9

Dictated by residency of D(s), location of events giving rise to the suit, or, if and only if venue is not proper under the first two locations, where at least one D is subject to PJ (“gap filler”)

a) If all D’s reside in same state –> district where any single D resides
- Humans reside where they live
- All other Ds (corp, partnership) reside in every district in which they are subject to PJ for that suit

b) Ds reside in multiple states –> location of harm
- Defined as the district where a substantial part of the events giving rise to the claim occurred

Question 10

For what 3 reasons can venue be transferred? – Can move between federal courts, not state or foreign courts

Answer 10

a) Convenience (commonly used) – Could have been filed there in the first place + transfer is necessary for convenience of parties and/or witnesses
b) Agreement – If all parties join request to transfer, court does not need to consider PJ or venue (if agree, consenting)
c) Interest of justice – If filed in improper venue, court can dismiss or in the interest of justice, transfer where it could have been filed originally

Question 11

What is Forum non conveniens?

Answer 11

If most convenient forum is not in the US, court cannot transfer, but can dismiss without prejudice so that P can refile in proper country; may not be in US. Same factors considered as in transfer of venue.

Question 12

In a diversity case, how does a fed court decide what law to apply?

Answer 12

(Erie doctrine)

1. Do what Congress or the Constitution (federal law) says if it is valid and on point.
2. If there is no federal statute or constitutional law on point, do what would avoid unfairness and forum shopping

Question 13

The contents of a complaint must include:

Answer 13

a) Grounds for subject-matter jurisdiction
b) Statement of facts that are sufficient to show that P is entitled to relief
c) Demand for judgment and the relief sought

Question 14

A party can amend a plead ____ as a matter of right within ____ of serving it or if an answer or motion to dismiss has already been filed, within ____ after that service.

Party can amend an answer within ____ of serving it.

Answer 14

• Once

- 21, 21, 21

Question 15

In addition to amending as a matter of right, a party can amend:

Answer 15

With permission:

i) Permission of opposing parties, then can amend
ii) Permission of court - will consider reason for delay and prejudice (usually granted)

Question 16

What is the relation back rule? (in terms of amendments / statutes of limitations)

Answer 16

An amendment adding new claims is considered filed on date of original claim IF new claim arises from
the same transaction or occurrence as existing claim

Question 17

An amendment adding new parties will relate back to the date of the original filing date if party to be added:

Answer 17

i) Knew of the suit soon enough to not be prejudiced and not later than time permitted for service,+
ii) Should have expected to be named as a D, +
iii) Was originally left out because of mistake in identity

Question 18

Proper service must contain both:

Answer 18

complaint and summons

Question 19

Proper service must occur must be served within _____ of filing complaint

Answer 19

90 days

Question 20

Who can serve? (service of process)

Answer 20

Anyone over 18 and not a party can serve

Question 20

Who can serve? (service of process)

Answer 20

Anyone over 18 and not a party can serve

Question 21

How can process be served? (2 options)

Answer 21

Option 1: Manner prescribed by state court in state where: (1) federal suit has been filed OR (2) where the D will be served

Option 2: Manner specified by Federal Rule 4

• If D = natural person, 4 options:
  (1) Deliver to D himself (through 3rd party);
  (2) Leave at D’s usual abode with a person of suitable age and discretion residing there;
  (3) Serve D’s registered agent; or
  (4) Mail with letter requesting D waive in-person service (if D declines to waive, they become responsible for cost of personal service)
• If D = corporation, partnership, or association, 3 options, serve process on:
  (1) An officer;
  (2) A managing agent or general agent; or
  (3) Any other agent authorized by appointment or by law to receive service
  (a) If law requires service by mail, must be by hand + mail

Question 22

What are the due process requirements of service?

Answer 22

D is entitled to notice of claims against them and an opportunity to respond to those claims

a) Notice through service: if served, basically have notice - Key is whether service reasonably calculated to inform D of action against them
b) Notice without service: may be a constitutional issue
- Key is whether P took steps reasonably calculated to inform D of the action against them

Question 23

What are a defendant’s options for responding to a complaint?

Answer 23

1. Answer - admit/deny (otherwise admitted), defenses (otherwise forfeit all except for Failure to state a claim upon which relief should be granted; failure to join necessary party; and lack of SMJ)
2. Motion for more definite statement – Court will order pleading to be clarified if so vague that
   responding party cannot reasonably prepare a response
3. Motion to strike – Court can (on own or motion) order material stricken if complaint/answer contains
   redundant, immaterial or scandalous stuff
4. Motion to dismiss – Seeks dismissal, can be filed by any defending party

Question 24

A D must has ____ days to provide an initial response (answer or pre-answer motion) if they were actually served with process and ____ if service of process was waived.

If D responds with a pre-answer motion and it is denied, D must file answer within ____ days of denial.

Answer 24

• 21
• 60
• 14

Question 25

To obtain a Preliminary injunction (PI), a Plaintiff must provide notice to adverse party and pass the following 5-part test:

Answer 25

a) Likelihood of success on the merits +
b) Irreparable harm (ongoing / imminent harm, can’t be undone later) +
c) Balance of hardships (is harm to P if no injunction greater than harm to D if granted?)+
d) Public interest (no PI if injurious to public interest) +
e) Payment of security

Question 26

What is the difference between a preliminary injunction and a temporary restraining order?

Answer 26

Same 5-part test a prelim injunction, but
-TRO can be ex parte – Can only be issued without notice if: (1) specific facts clearly show that
immediate and irreparable injury, loss, or damage will result before the adverse party can be heard
in opposition; and (2) the movant’s attorney certifies in writing any efforts made to give notice and
the reasons why it should not be required

-TROs expire 14 days after issuance; Can be extended for 14 days upon good cause shown

Question 27

When P sues D, how many claims can they bring?

Answer 27

a) P can bring all claims in 1 lawsuit, regardless of relatedness of claims
b) Not required to bring every claim but permitted to
- If related to claim in suit, must bring, or likely precluded

Question 28

What is a Permissive counterclaim?

Answer 28

D may bring a claim against P that does not arise out of the same transaction or occurrence underlying P’s claims against D (permitted, not required)

Question 29

What is a Compulsory counterclaim?

Answer 29

A Claim that does arise out of same transaction or occurrence underlying P’s claim against D –> D must file or forfeit

Question 30

What is a cross-claim and when is it allowed?

Answer 30

Cross-claims (Rule 13(g)) – Filed by party against co-party (D1 v. D2)

a) Allowed only if arise from same transaction or occurrence underlying one of P’s claims
b) Once a related cross is filed, this is the anchor claim. Can then file unrelated cross-claims
c) Co-D can counterclaim the cross. Compulsory/permissive rules apply, does not have to be related

Question 31

What is an impleader claim and when is it permitted?

Answer 31

Impleader claims (Rule 14) – D brings against person not already a party
a) Must allege 3rd party is responsible for some/all of liability [Ex: contribution (claim against joint tortfeasor), indemnity (claim against insurer)]
b) D has right to implead if within 14 days of serving an answer, otherwise needs permission from court
c) After impleaded, 3rd person made party may bring own claims against others and implead others.
Original P can also file claim against 3rd party (impleaded D) if it relates to one of P’s original claims

Question 32

What is permissive joinder?

Answer 32

Permissive joinder (Rule 20) - Multiple P’s can join 1 suit or multiple D’s can be sued in 1 suit, as long as:
a) Joined parties claim relief (if Ps) or face liability (if Ds) that arises out of the same transaction or
occurrence; +
b) There will arise questions of law/fact common to joined parties

Question 32

What is mandatory joinder?

Answer 32

Mandatory joinder (Rule 19) could be forced to add a party to the suit

a) Step 1: Is the absent party necessary?
- Necessary party = Has an interest that might be impaired if left out; complete relief cannot be issued in the party’s absence; or if current parties would be subject to inconsistent/duplicative liability
- If party is not necessary, no mandatory joinder

b) Step 2: If missing party is necessary, can she be joined? [Missing party can’t be joined in federal court if court lacks PJ over missing party, or adding would
destroy SMJ by destroying diversity]
(1) Yes – Court should just join them, adjudicate case, skip Step 3
(2) No – Proceed to Step 3

c) Step 3: If cannot be joined, are they indispensable?
i) Court will consider: extent of prejudice to missing party; can prejudice be lessened by shaping
relief in a certain way; and if case is dismissed, whether P can find relief in another forum
(1) Yes – Must dismiss the suit
(2) No – Court can adjudicate case in party’s absence

Question 33

To form a class for class action, must meet 4 requirements:

Answer 33

i) Numerosity: So many claimants that joinder is impractical
ii) Commonality: Questions of law or fact common to class
iii) Typicality: Claims (of class reps) are typical of class members ensuring the representative will have an
incentive to litigate in ways to protect class
iv) Representativeness: Parties (class rep and attorney) will fairly and adequately protect the interests of the class

Question 34

An issue is proper for resolution via class action if:

Answer 34

i) Separate actions would create risk of inconsistent judgments or judgments would impair nonparties from protecting interests
ii) Opposing party has acted in ways generally applicable to the class (not likely to work if seeking $$)
iii) Court finds that common questions of law or fact predominate over individualized questions, and a class action is superior to other methods for fair/efficient result

Question 35

What are the subject matter considerations for class actions when alleging state law violation?

Answer 35

When alleging state law violation, class can appear in federal court only if Ds and representative Ps (not all members) are completely diverse.
-exception: If 100 members and seeks damages over $5M, diversity satisfied if any single member 
is diverse from any D

[personal jurisdiction note: Court must have PJ over every D but only the named P]

Question 36

Was are Interpleader claims?

Answer 36

(Rule 22) – Have the other 2 guys sue each other

-Used when party fears it’ll face multiple/inconsistent liabilities (ex: wife/ex-wife fighting over insurance
proceeds, insurance company files interpleader because if it pays 1, the other will sue)

Question 37

What does it mean to intervene/what is intervention?

Answer 37

Non-party is interested, but has not been joined

Question 38

What is intervention of right?

Answer 38

Intervention of right: Must be permitted to intervene upon timely application when:

i) Claims an interest relating to subject matter of the action, and
ii) Without intervention, risk they might not be able to protect that interest

Question 39

What is permissive intervention?

Answer 39

Permissive intervention: Upon timely application and at court’s discretion, may intervene with a claim or defense that shares with the main action a common question of law or fact

Question 40

Within 14 days after a Rule 26 conference, must provide to all other parties: (mandatory disclosures - initial disclosures)

Answer 40

i) The name/contact info of any witness that a party may use to support a claim or defense;
ii) Copies (or descriptions) of documents, electronically stored information (ESI), and tangible
objects that the party may use to support its claim or defense;
iii) Computation of damages sought and supporting documents; and
iv) Copies of any insurance agreement that may require the insurer to pay

Question 41

What in mandatory disclosures in re: to experts? / by when must be disclosed?

Answer 41

Expert disclosure: At least 90 days before trial, if planning to rely on expert testimony, must disclose
name/contact info of expert and their final report which must include qualifications, opinion, and info
relied on by expert

Question 42

What are mandatory pretrial disclosures and when must they be provided?

Answer 42

Pretrial disclosures: At least 30 days before trial, must provide:

i) List of witnesses they expect to call;
ii) Witnesses they may call if the need arises;
iii) List of witnesses whose testimony will be given through deposition or transcript; and
iv) List of documents or physical evidence they expect to present

Question 42

What are mandatory pretrial disclosures and when must they be provided?

Answer 42

Pretrial disclosures: At least 30 days before trial, must provide:

i) List of witnesses they expect to call;
ii) Witnesses they may call if the need arises;
iii) List of witnesses whose testimony will be given through deposition or transcript; and
iv) List of documents or physical evidence they expect to present

Question 43

Under Rule 26, what factors determine the scope of discovery?

Answer 43

1. Relevance - Allowed discovery into any nonprivileged matter that is relevant to any claim or defense and proportional to the needs of the case
   -Relevant if likely to make any fact in dispute more or less likely to be true, regardless of whether
   info would be admissible at trial
2. Privilege - attorney/client communications undiscoverable
3. Undue Burden - Exists in the following circumstances and prevents discovery:
   - Discovery is unreasonably cumulative or can be obtained from less burdensome source or in a less burdensome way
   - Party has had ample opportunity to obtain information themselves
   - Burden or expense of proposed discovery outweighs its benefits, considering nature of evidence, amount in controversy, and parties’ resources
4. Work Product = document or tangible object created by party or attorney in anticipation of litigation (post-incident description of events)
   - usually can’t get through discovery, except:
   (a) Party can always obtain statement it has made
   (b) Can get WP if party has substantial need and can’t get it without substantial hardship
5. Experts
   -Non-testifying expert – Assessing merits of case. No intention to call at trial = undiscoverable unless party has extraordinary need/no other way to obtain such information (rare)
   -Testifying expert – Opinions held by those testifying are discoverable to a limited extent. Besides
   mandatory report, party can also get communications relating to:
   (1) Compensation for expert’s study or testimony;
   (2) Data provided by attorney to expert; or
   (3) Any assumption attorney asked expert to make in opinion

Question 44

What are interrogatories and how many do you get under FRCP?

Answer 44

Interrogatories (Rule 33) = Questions submitted in writing to other party

i) Up to 25 Qs
ii) Can seek facts or contentions
iii) 30 days to respond, must be in writing and objections stated with specificity

Question 45

What a request for admission and how many do you get / how long to answer under FRCP?

Answer 45

Requests for admission (Rule 36) = Request to admit truth or fact

i) If admitted, it’s in there for the trial
ii) 30 days to respond, may admit, deny, or state they have made a reasonable attempt to ascertain truth but lack info to admit / deny

Question 46

How long does an opposing party have to respond to a request for production of docs, tangible items, or access to evidence, and in what form must they provide it?

Answer 46

i) 30 days to respond, may object as outside scope of discovery
ii) If documents, responding party must provide them as they are maintained in usual course of business and label, but with electronically stored information (ESI), can provide copies

Question 47

When and how can a party obtain a requests for mental or physical examination?

Answer 47

Rule 35; Used when party’s mental or physical state is
at issue
i) Available only upon court order. When ordered, party must submit. Examiner must prepare report detailing exam and it is available to any requesting party

Question 48

How many depositions does a party get, and in what situations can depos by used at trial?

Answer 48

Depositions (Rules 27, 30, 31)

i) May depose up to 10, but can get court order for more
ii) May use at a hearing or trial as long as opposing party had reasonable opportunity to be present and these rules are followed:
(1) Deposition of party/party’s designee can be used for any purpose
(2) Deposition of non-party can be used:
(a) to impeach deponent, or
(b) if deponent is unavailable (dead, disappearance) any purpose

Question 48

How many depositions does a party get, and in what situations can depos by used at trial?

Answer 48

Depositions (Rules 27, 30, 31)

i) May depose up to 10, but can get court order for more
ii) May use at a hearing or trial as long as opposing party had reasonable opportunity to be present and these rules are followed:
(1) Deposition of party/party’s designee can be used for any purpose
(2) Deposition of non-party can be used:
(a) to impeach deponent, or
(b) if deponent is unavailable (dead, disappearance) any purpose

Question 49

What are the types of subpoenas?

Answer 49

i) Subpoenas duces tecum – Demand for documents
ii) Subpoenas ad testificatum – Demand for testimony
iii) Person served may object as outside scope of discovery or if it requires the person to travel >100 miles from home or work

Question 50

What are a party’s options if the opposing party does not comply with discovery requests?

Answer 50

If they sort of comply:

i) Motion to compel: made after movant has in good faith attempted to confer with resistor
- If granted –> movant gets fees/expenses for motion
- If denied –> non-movant may get fees but only if motion was not substantially justified

ii) Sanctions: (after motion to compel, still doesn’t comply)
- Court order declaring facts established for requesting party
- Court order prohibiting disobedient party from presenting certain claims or defenses
- Stay or dismissal of entire action, or
- Order of contempt

If they don’t comply at all: can immediately seek all sanctions above (except an order of contempt) –
no need for motion to compel

Question 51

What are a claimant’s options if they want to crop their case?

Answer 51

i) Unilateral dismissal by filing notice any time before D has filed an answer or motion for summary judgment
ii) Stipulation of dismissal signed by all parties (settlement)
iii) Permission of the court. Generally will grant, but if D filed a counterclaim, court will not dismiss unless that claim can remain pending for independent adjudication

Question 52

When are dismissals with / without notice?

Answer 52

i) If notice, speculation, or court order specifies, bound by that
ii) If silent, presumed without prejudice in first dismissal, subsequent dismissals are presumed with prejudice

Question 53

When does an involuntary dismissal occur?

Answer 53

If P fails to prosecute her case or refuses to comply with a court order or any of the FRCP, D can move to dismiss.

-Operates as an adjudication on the merits (with prejudice) unless the order states otherwise or it’s a
dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19

Question 54

When does a default judgment occur and what are the 2 steps?

Answer 54

P properly serves D, D never responds. 2 Steps:
1) Entry of default: Clerk must enter a default
2) Entry of a default judgment: Issued after a default has been entered. How issued depends on nature of
P’s claim:
-Entry by clerk - If claim for a “sum certain” (or by math) and P requests the default judgment, clerk
must enter and assess damages and costs against the D
-Entry by the court - If clerk can’t do it, court will, but P must ask for it
(1) If D initially appeared but failed later, court can issue only if D served with written notice of
application for default 7 days before hearing
(2) Judge may hold hearings to calculate $$ damages or other matters

Question 55

When must a motion to dismiss be filed?

Answer 55

Must be filed before an answer is filed –> within 21 (where process served) or 60 days (where process
waived)

Question 56

What are the grounds for a motion to dismiss?

Answer 56

i) Lack of SMJ;
ii) Lack of PJ;
iii) Improper venue;
iv) Insufficient process (constitutional claim);
v) Insufficient service of process (statutory claim);
vi) Failure to state claim upon which relief can be granted; - Court assumes facts are 100% true, must be plausible, not probable (needs some facts)
vii) Failure to join indispensable party

Question 57

What defenses must be included in a first response (either motion to dismiss or answer)? (otherwise forfeited)

Answer 57

(1) Lack of PJ;
(2) Improper venue;
(3) Failure of constitutional process;
(4) Failure of statutory process

Question 58

What defenses must be raised any time before a trial ends, otherwise they’re forfeited?

Answer 58

(1) Failure to state a claim upon which relief can be granted;
(2) Failure to join a necessary party

Question 59

Defense of _____ is never forfeited; may be raised anytime, even on appeal

Answer 59

lack of subject matter jurisdiction

Question 60

What is the standard to succeed on a motion for summary judgment?

Answer 60

No genuine dispute of material fact, and movant is entitled to judgment as a matter of law

Step 1 – Assess only the arguments advanced by the movant –> have they shown non-movant lacks
sufficient facts and/or law to prevail on claim/defense in question?

Step 2 – Examine non-movant’s response –> must bring evidence sufficient for reasonable jury to find
in her favor on a claim or defense
i) Court will look only at non-movant’s evidence (won’t weigh against moving party’s) and assume
witnesses are truth tellers – no credibility issues
ii) If non-movant does not produce evidence, but just points to the pleadings, they’ll lose, but if
pleadings are under oath (testimony about the pleadings), they are considered evidentiary

Question 61

When may a motion for summary judgment be made?

Answer 61

Motion for SJ may be made any time before 30 days after the close of discovery

Question 62

When must a demand for a jury trial be made?

Answer 62

No later than 14 days after the last pleading directed to the jury-eligible issue is filed, party exercising right must file with court and serve on other parties written demand for jury trial

Question 63

During jury trial only, court may enter (on its own or upon motion), Judgment as a Matter of Law if:

Answer 63

i) Party against whom judgment is entered has been fully heard on the issue, and
ii) Party lacks sufficient evidence to prevail on issue necessary to claim or defense

Question 64

A renewed judgment as a matter of law must be filed within ____ days of entry of judgment.

Answer 64

28 days

In ruling on this new motion, the court may:

i) Allow the verdict to stand;
ii) Enter the opposite verdict; or
iii) Order a new trial (even if a motion for new trial was not made)

Question 65

A motion for a new trial must be made within ____ days of entry of judgment and can be based on the following grounds:

Answer 65

28 days

Grounds:
1) Against the great weight of the evidence – Court can take into account comparative volume and
credibility of evidence
2) Excessive damages – Jury returns verdict that is “grossly excessive” or “shocks the conscience.”
Court can also just choose an appropriate amount and let P choose between accepting that
amount and doing a new trial.

3) Procedural error or misconduct – only if:
(a) Error or misconduct likely affected result of trial, and
(b) Party objected to error when had opportunity to do so. Ex: Wrongful exclusion of evidence, ex parte communication with judge, incorrect jury
instructions

4. Newly discovered evidence: could not with reasonable diligence been found before verdict and
   will likely change results, new evidence can’t be just for impeachment

Question 66

When must a motion for relief from judgment be made and what are the grounds for the motion?

Answer 66

-Must be made within reasonable time, probably after learning of the grounds. First 3 grounds must not
be made later than 1 year from final judgment

6 Grounds:

i) Mistake, inadvertence, or excusable neglect;
ii) Newly discovered evidence;
iii) Fraud, misrepresentation or misconduct by party;
iv) Judgment is void: court lacked SMJ or PJ;
v) Judgment has been satisfied;
vi) Any other reason that justifies relief (catch-all) but can’t be used when any of above applies

Question 66

When must a motion for relief from judgment be made and what are the grounds for the motion?

Answer 66

-Must be made within reasonable time, probably after learning of the grounds. First 3 grounds must not
be made later than 1 year from final judgment

6 Grounds:

i) Mistake, inadvertence, or excusable neglect;
ii) Newly discovered evidence;
iii) Fraud, misrepresentation or misconduct by party;
iv) Judgment is void: court lacked SMJ or PJ;
v) Judgment has been satisfied;
vi) Any other reason that justifies relief (catch-all) but can’t be used when any of above applies

Question 67

Federal circuit court jurisdiction is limited, can hear only appeals seeking review of:

Answer 67

i) Final judgment

ii) Order pertaining to preliminary injunctive relief
- Can immediately appeal district court order granting or denying a preliminary injunction.

iii) Order pertaining to certification of a class

iv) Order that has been certified by the district court for appeal;
(1) May immediately appeal order that has been “certified” if 3 conditions met:
(a) Order involves a controlling question of law;
(b) Issue of law is one on which there is substantial difference of opinion; and
(c) Immediate appeal will materially advance the ultimate resolution of the action

v) A collateral order
(1) Extremely narrow. Allowed when 3 conditions met:
(a) Order pertains to matter unrelated to merits (hence “collateral”);
(b) Order conclusively decides a particular issue; and
(c) Delaying appeal until a final judgment has issued would effectively deny appellate review of the issue

Question 68

Appellant must file notice of appeal within ___ days of the judgment (or within ___ days of the order that is the
subject of the appeal)

Answer 68

30, 30
i) Exception: Where appeal is on class cert, only have 14 days
ii) If post-trial motion has been filed (renewed motion for JMOL, new trial, relief from judgment) and
it is denied, a new 30-day period beings to run from the date of the denial. If granted, judgment is
no longer final and no appeal is permissible unless the order can be certified or characterized as
a collateral order

Question 69

What are the elements of res judicata / claim preclusion?

Answer 69

Elements:

i) Between the same parties and those who are in privity with them;
ii) Arising out of the same transaction or occurrence underlying the prior suit; and
iii) That was determined on the merits by a court with proper subject-matter and personal jurisdiction.
- On the merits = involved an inquiry into the merits of P’s claim; Judgment is not on the merits if it’s a dismissal for lack of PJ, SMJ, or venue; Dismissal with prejudice = on the merits

iv) Relationship to compulsory counterclaim rule –> if D fails to bring a compulsory counterclaim in
1st suit, precluded from filing it as a P in a later suit

Question 70

What are the elements of collateral estoppel / issue preclusion?

Answer 70

i) Must have been litigated and determined in the prior suit
ii) Issue must have been essential to the judgment
-Essential = if decided the opposite way would it have changed the result of the case
iii) Prior suit must have ended in a judgment on the merits
iv) Party against whom preclusion is asserted must have had full and fair opportunity, as well as
incentive, to litigate the issue in the first suit