Civil Procedure Flashcards
Who can enter a default judgement
the corut
when can a clerk enter a default judgement
only when the amount sought is a sum certain and the defaulting party has failed to appear
how many days does a platiniff have to respond to a counter claim
21 days
Is failure to show up for trial considered a default
no
When is a default judgement appropriate
when one party fails to plead or defend
What are the two types of dismissal
voluntary and involuntary
Voluntary dismissial is when
p voluntarily dimisses the case
When can the P voluntarily dismiss the case
before the D serves the answer or moves for summary judgement
Can you voluntarily dismiss the case more than once
No, you are only allowed the first time w/o prejudice
What happens if the D answers and P would like to voluntarily dismiss
need court approval
Involuntarily dismissal USUALLY means
w/ prejudice
In what type of situations will a case base involuntarily dismissed
Failure to state a claim
Failure to obey a court order
Failure to prosecute
When is prejudice not added to involuntary dismissal
Lack of Jdx
Venue
Failure to join an indispensable party
While the appearance of Judicial Bias is waivable, what are the grounds for the recusal of a judge that are not waiveable
Judge has personal knowledge of the facts of the case on their own
Judge acted as a lawyer w/ the lawyer in the matter of controversy (Think COI)
Judge expressed an opinion about the merits of the case while in governmental employment
Judge or immediate family has a financial interest in the case or one of the parties
Violated due process rights
Res judicata’s other name is
Claim preclusion
claim preclusions other name is
res judicata
Claim Preclusion / Res Judicata elements
Same parties or those in privity
Same claim (same T & O)
Judgment on merits
Judgement on the merits means
a final judgement
When is there not a judgement on the merits
If a p case is dismissed for lack of jdx, improper venue or settlement in the case, OR IF THE FACTS SAY SO → no final judgement and not be barred from bringing back the suit
What if the law changes where the loss now means a win but there was a final judgement on the merits
cannot bring the suit again
Privity means
legal relationships like
Employee - Employer or Buyer / Seller
Merger and Barred usually mean
claim preclusion and res judicata
Collateral estoppel’s other name
Issue preclusion
Issue preclusions other name
collateral estoppel
Collateral estoppel’s elements
Same issue
Litigated and decided - ie final judgement
Issue necessary to judgement
If there is a settlement or default judgement =
not litigated
Issue necessary to the judgement means
Party preculision is asserted against must have had a full and fair opportunity to litigate
P v D → P looses
2P v. D can the D say Collateral estoppel / issue preclusion
No, 2P must have his day in court
P v. D → P looses. P wants to sue new D2 (defensive CE). Can D2 use collateral estoppel
yes under defensive CE
P v. D and P wins. P2 sues D (offensive CE). P cannot do this unless the questions states
Federal common law and state A(where the case was decided and D lost) permit non-mutual offensive collateral estoppel
When you are sitting in diversity and 2 jdx and they are talking about RJ / CE and they asking about which preclusion rule would apply, you look to where
the first case was decided
If the first case was in federal court → apply the federal preclusion rule
If the first case was in state court → applies the preclusion rule of the jdx of the first case (ie if they applied state law apply state law; if they applied federal law → federal law)
Full faith and Credit clause
You have 2 states involved, you must respect the first state judgment
A party may challenge an adverse federal district court ruling, finding, or conclusion by appealing to the federal appellate court encompassing that district. The party must generally filea notice of appeal with the district court clerk
k within 30 days after the entry of final judgment.
However, the time to file a notice of appeal is extended to 60 days if
if one of the parties is (1) the United States, (2) a federal agency, or (3) a federal officer or employee sued for conduct that relates to government duties.
