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Civil Procedure Flashcards

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1
Q

What are the ways to obtain Subject Matter Jurisdiction?

A

EITHER:
(1) diversity
OR:
(2) federal question

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2
Q

What is the amount-in-controversy requirement?

A

For diversity jurisdiction, the case must be in EXCESS of $75,000 (so at least $75,000.01), or at least possibly.

Court must have legal certainty that it won’t reach this amount of money in order to dismiss the suit.

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3
Q

When can the plaintiff add claims to reach the amount-in-controversy requirement?

A

If first claim exceeds $75k = P can add claims

Single plaintiff against single defendant = P can combine smaller claims to reach $75k

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4
Q

Can a plaintiff add other plaintiffs to reach the amount in controversy requirement?

A

If one plaintiff’s suit ALREADY MEETS meets the $75k requirement, they can add plaintiffs with lower amounts.

If NO plaintiff’s single claim exceeds $75k, they CANNOT add claims until they hit the requirement.

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5
Q

In a class action suit, who has to meet the amount in controversy requirement?

A

As long as one named member of the class reaches the $75k requirement, the entire class action can proceed.

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6
Q

What is complete diversity of citizenship?

A

Each plaintiff is a citizen of a different state than each defendant. No plaintiff lives in the same state as any defendant.

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7
Q

Where is your domicile?

A

Where you are presently with intent to stay — no current plans to leave.

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8
Q

Is a case diverse if one party is a foreign person?

A

US Citizen + Foreign citizen = YES diverse

but

Foreign citizen + Foreign citizen = NOT diverse

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9
Q

Where are corporations domiciled? Can it be in multiple places?

A

(1) Any state where they are incorporated
AND
(2) where they have their principle place of business.

Yes, they can be domiciled in multiple places.

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10
Q

Can you join a defendant to establish diversity?

A

No, you cannot improperly join a party JUST to get diversity.

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11
Q

What are the requirements for diversity jurisdictions?

A

(1) Amount in controversy must exceed $75k

(2) completely diversity of citizenship

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12
Q

What is Federal Question jurisdiction?

A

When the plaintiff’s claim is based on federal law, which is plainly obvious on the well-pleaded complaint

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13
Q

Can a federal issue that rises as a defense suffice to establish federal question jurisdiction?

A

NO. The federal issue must be the plaintiff’s, listed in the complaint.

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14
Q

What are the usual types of federal questions cases?

A

(1) Admiralty
(2) Maritime
(3) Intellectual Property

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15
Q

What is Supplemental Jurisdiction?

A

When a case itself does not have direct subject matter jurisdiction, BUT it’s added to an existing case that DOES have subject matter jurisdiction

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16
Q

When will the court allow supplemental jurisdiction?

A

When the new case derives from the common nucleus of facts (same conduct or transaction) as the current suit that does have subject matter jurisdiction

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17
Q

Can the court exercise supplemental jurisdiction in tandem with diversity jurisdiction?

A

Yes, but any new parties added cannot destroy the diversity of citizenship that already exists.

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18
Q

Cases where supplemental jurisdiction is allowed?

A

(1) Compulsory counterclaim
(2) Joinder in Compulsory Counterclaim
(3) Cross-claim
(4) Impleader of 3rd Party Defendants

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19
Q

Instances where supplement jurisdiction is NOT allowed?

A

(1) Original plaintiff vs. 3rd party defendant
(2) Compulsory joinder
(3) Joinder of defendants
(4) Intervention

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20
Q

Supplemental Jurisdiction rule of thumb for whether it’s allowed?

A

If defendant is trying to add claim or party = generally IS allowed

If plaintiff is trying to add = generally NOT allowed

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21
Q

When is the court absolutely required to grant supplemental jurisdiction?

A

Never. Court MAY grant it because court has DISCRETION. They never must allow

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22
Q

When can the court easily get personal jurisdiction?

A

(1) Where the person is present in the state of their own volition, not because they’re forced to be there or there bc of fraud

(2) Where the person is domiciled in the state

(3) Where the person consents to being sued in the state

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23
Q

When can a state get personal jurisdiction over an out-of-state person?

A

(1) Long-arm statute — look for one of these first

(2) Then look for sufficient minimum contacts with the state that make it fair to litigate in that forum

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24
Q

When does a corporation have minimum contacts?

A

A corporation has minimum contacts with a state when the maintenance of the suit does not offend traditional notions do fair play and justice.

Their conduct in the state make it where they should reasonably expect to litigate there.

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25
Q

When a company creates products that can end up anywhere, how can you determine whether they have contacts in the state?

A

ASK:
(1) Does the corporation purposely avail itself to the services of the state?

(2) Are the corporation’s actions systematic and continuous in that state?

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26
Q

What is in rem jurisdiction?

A

When you’re trying to get jurisdiction over PROPERTY, not an individual.

Example: Quiet title suits

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27
Q

What is quasi-in rem jurisdiction?

A

When you try and fail to get jurisdiction over the individual, so you go after the individual’s property to satisfy a judgment against the individual

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28
Q

Where can proper service of process occur?

A

Service of process is generally limited to:
(1) the state where the district court sits, OR
(2) anywhere allowed by long-arm statute

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29
Q

What is the 100 mile bulge rule? Who does it apply to?

A

An out-of-state service will be allowed anywhere within 100 miles of the courthouse where the suit is pending.

ONLY applies to out-of-staters brought in as additional parties — 3rd party defendants and indispensable parties

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30
Q

How is proper service of process measured?

A

Service should be done in a matter reasonably likely to provide adequate notice to the party

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31
Q

What are acceptable ways provide service of process?

A

(1) Personal service from a non-party over the age of 18

(2) Appropriate Substitute service of process

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32
Q

Can you leave service of process at someone’s house instead of giving personal service?

A

Yes, as long as you leave it with a person of suitable age—someone likely to give it to you (mature and responsible)

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33
Q

Can you provide service of process by mail?

A

Yes, you can give service via first class mail IF the defendant returns an acknowledgment or a waiver form

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34
Q

Can you provide service of process to an authorized agent of an individual?

A

Yes, of course.

Also by any other manner the state will allow.

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35
Q

How can you provide service of process to out-of-staters?

A

(1) registered or certified mail

(2) newspaper, if there is NO OTHER reasonable way

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36
Q

Can you deliver service of process to a public official?

A

Yes—rare weird hypo but you can serve process to a public official, and they will give it to the defendant

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37
Q

What is the best way to serve process on a corporation?

A

You can serve (1) any officer, or (2) any designated agent of the company, or (3) anyone of sufficiently high placement in the company

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38
Q

What is removal? When it is allowed?

A

Removal is when a case is in STATE COURT and then is removed to federal court. (not a state agency or other body)

Removal is allowed when the court could have been in federal court to begin with.

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39
Q

Who may remove a case?

A

Only the DEFENDANT is allowed to remove cases. The plaintiff cannot remove cases.

If multiple defendants = All defendants must join in the notice of removal

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40
Q

When must removal occur?

A

Defendant must file a notice with the court of removal within 30 days of being served with the original complaint.

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41
Q

When must removal take place in diversity cases?

A

The physical removal of a case must happen within a year of the start of the lawsuit.

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42
Q

When is removal DISallowed in diversity suits?

A

Removal is not allowed if the defendant is a citizen of the forum state. It would have to be a state of the plaintiff‘s citizenship.

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43
Q

What happens when you have multiple claims, but only one is removable?

A

If one claim is removable, then the entire case can be removed.

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44
Q

When can remand happen and who can request it?

A

Plaintiff can file motion within 30 days of notice of removal to remand back to state court, if they feel it was improperly removed.

Then defendant has to prove why removal was proper in the first place.

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45
Q

What is Venue? What is based on?

A

the proper federal district court for the case, based on the defendant’s location

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46
Q

Where is venue property?

A

(1) The district where any defendant resides.
Multiple defendants = where they all reside, if they life in the same place

(2) District(s) where a substantial part of the events took place

(3) District where defendant is reachable for personal jurisdiction

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47
Q

Where is venue proper for a corporation?

A

(1) Any district in a state where they are incorporated

(2) Any district where their principle place of business is

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48
Q

What is forum nonconveniens?

A

Forum nonconveniens is when the court either transfers the venue or dismisses the case for convenience reasons

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49
Q

What happens when venue is proper in the first place, but someone wants the case to be transferred to another district?

A

If venue was proper in the first place, the court MAY transfer the case, if
(1) it is more convenient for the parties, and
(2) it’s in the interests of justice.

But if venue was proper in the first place, the case will NOT be dismissed.

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50
Q

What happens when venue is not proper in the first place?

A

Judge must EITHER:
(1) dismiss the case
OR
(2) transfer the case to a jurisdiction where it could be properly brought, IF it’s in the interest in justice

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51
Q

When can a case stay in a district that is inconvenient?

A

Cases can be litigated in inconvenient (or any) districts, as long as both parties consent.

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52
Q

What happens when the most convenient venue for a case is in a foreign country?

A

The case will be dismissed because the judge can’t transfer cases to other countries

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53
Q

What does the complaint do? How is it handled?

A

Filing the complaint starts the action for statute of limitation purposes.

Step (1): File complaint with court

Step (2): Serve complaint to other party within 90 days of filing

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54
Q

What must a complaint include?

A

(1) some short, plain statement for jurisdictions

(2) statement of the claim (facts, not legal theory)

(3) Demand for relief (damages)

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55
Q

When must the complaint be pled with specificity?

A

In cases of fraud

Where there are special damages

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56
Q

What can the answer to the complaint do? When must the answer happen?

A

Answer can deny all or in part of the claims, but whatever is NOT denied is admitted.

The answer must be filed within 21 days after the complaint and be signed by the lawyer.

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57
Q

What are big affirmative defenses? Where are those pled?

A

Affirmative defenses must be pled in the answer.

Examples include:
Contributory Negligence
Statute of Frauds
Statute of Limitations
Illegalities
Duress

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58
Q

What are the ways a party can amend their pleading?

A

Amendment as of right: you can amend once within 21 days of service of the pleading

Amendment by leave of court: Court grants permission to amend if after 21 days “if justice so requires. Liberal standard.

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59
Q

What is relation-back when adding a claim or defense?

A

The amended pleading will relate back to the date of the original pleading if the new claim or defense arose out of the same conduct, transaction, or occurrence

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60
Q

What is relation-back when trying to add a party?

A

Amending to add a party will relate back when:

(1) New party arose out of or was involved in the same conduct, transaction, or occurrence

(2) Within 90 days of filing the complaint, the new party received enough notice so they would not be prejudiced

(3) If the new party knew, or should have known, they would’ve been brought in BUT FOR a mistake in the party’s identity

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61
Q

What is Rule 11? What does it require?

A

Rule 11 states that the attorney signs to the best of their “knowledge, information, and belief” that there is a basis for the claim

(1) Legal arguments must be warranted by existing law
(2) The allegations are supported by evidence
(3) It’s not brought for improper purpose

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62
Q

What is a compulsory counterclaim? Jurisdiction required?

A

A claim that that defendant brings against the plaintiff that arises out of the same transaction or occurrence.

No new jurisdiction is necessary because the court already has supplemental jurisdiction

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63
Q

What is a permissive counterclaim? Jurisdiction needed?

A

A counterclaim that is NOT based on the same transaction or occurrence.

Supplemental jurisdiction does not apply here so it needs its own independent jurisdiction

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64
Q

What is Permissive Joinder? When is it possible?

A

Multiple plaintiffs can join together when:
(1) their claims arise from a single transaction or occurrence, and
(2) the question of law or fact is common

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65
Q

What is compulsory joinder?

A

Compulsory joinder is when the party MUST be added because it’d be unfair to litigate without them

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66
Q

What is compulsory joinder of a necessary party? What if it impacts jurisdiction?

A

A party is necessary when it would IMPAIR THEIR INTERESTS to not include them.

The case can still move forward even if adding the necessary party ruins jurisdiction.

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67
Q

What is compulsory joinder of an indispensable party? What if it impacts jurisdiction?

A

A party is indispensable when it would prejudice them to not join them.

If joining them ruins jurisdiction, the case will be dismissed!

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68
Q

How many claims can a party join, and what is the condition?

A

As many claims as they want, as long as the new claims have subject matter jurisdiciton.

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69
Q

What are the four prerequisites for a class action?

A

(1) Size - Case must be so large that joining little claims altogether would be impractical.

(2) Common question of law or fact among all the plaintiffs

(3) Typicality - the claims of the representatives are typical to the other class members

(4) The representatives fairly protect the interests of the class, with no conflict of interest

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70
Q

What are the three types of class actions?

A

(1) B1 Class action = Where there’ll be an impairment of the interests of the class members if no class action

(2) B2 Class action = Where the class is seeking injunctive relief

(3) B3 = Common question among all class members (the superior method)

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71
Q

In which types of class actions can the members opt out?

A

B1 and B2 = CANNOT opt out
B3 = MAY opt out

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72
Q

Is notice required in class actions?

A

B1 and B2 = Notice is in discretion of the court, not required

B3 = All members MUST receive notice by reasonable effort

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73
Q

Whose citizenship matters in a diversity class action suit?

A

It is the citizenship of the representative that counts

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74
Q

How can parties satisfy the amount-in-controversy requirement in diversity class action suits?

A

As long as one named member has a case that is worth the $75k amount in controversy, other lesser claims may join the class

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75
Q

What happens when none of the members of a diversity class action have a $75k claim?

A

As long as the sum of the claims altogether is $5 million, the amount-in-controversy is satisfied

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76
Q

Who certifies the class? What happens if the class does not get certified?

A

It’s up to the court to certify the class, but if it doesn’t:
(1) the members can continue on their own as a ‘sub-class’

(2) the denial can be appealed

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77
Q

How must settlements in class action suits be handled?

A

Settlements in class actions:
(1) must be approved by the court
(2) permitting reasonable attorney’s fees based on class’s size, and
(3) A statement detailing the agreement has to be supplied to the court.

78
Q

What is Intervention ?

A

When a party who was not part of the original suit wants to join the suit, even though they were not involved in the first place.

79
Q

What is Intervention as of right?

A

Parties do not need court permission to intervene when:

(1) they have an interest in the property or transaction subject to suit, AMD
(2) it would impede/impair their ability to protect that interest to exclude them from the suit.

80
Q

What is Permissive intervention?

A

When the third person has a claim or defense that has a common question of law or fact.

Court must decide whether to allow the third person.

81
Q

What is interpleader?

A

When 1 party owes money to two or more people, but they aren’t sure how much to whom, so they force the owed parties to fight it out among themselves.

82
Q

What is statutory interpleader?

A

(1) Nationwide service of process is allowed
(2) As long as any two claimants are diverse, jurisdiction is okay
(3) Only $500 needs to be at stake in the suit
(4) The person that owns the property starts the suit, puts the property/money with the court or posts a bond.

83
Q

What is rule interpleader?

A

(1) Complete diversity is required
(2) Nationwide service is not allowed
(3) Amount in controversy is $75k
(4) No requirement to deposit money/property with the court

84
Q

What is third party impleader?

A

If a defendant believes a third party owes money to them for part or all of the claim, then defendant can implead them as a third-party defendant
(think indemnification)

85
Q

Cross-claims - Describe.

A

When one party is suing a co-party. Plaintiff suing Defendant A and B. Then Defendant A sues Defendant B. Boom: Cross claim

86
Q

What is required for a cross-claim?

A

(1 Claim has to be based out of the same transaction or occurrence
(2) One party must be asking for actual damages from the other party

87
Q

What information is discoverable?

A

Information is discoverable if the matter is:
(1) not privileged
(2) relevant
(3) “proportional to the needs of the case”

88
Q

What information is immune from discovery?

A

Work product – Any documents prepared in anticipation of trial by the lawyer or people working for the lawyer.

89
Q

When is work product discoverable?

A

Generally privileged, but discoverable when:
(1) there’s a substantial need for the material
(2) you cannot obtain the information without UNDUE HARDSHIP by any other substantially equivalent means

90
Q

When does work product have absolute immunity?

A

When it is mental impressions, conclusions, opinions, or legal theories of the case

91
Q

What information regarding witnesses is discoverable?

A

(1) Names and locations of all people who could be called as witnesses

(2) List of documents and materials they’re going to use must be provided

92
Q

What information is discoverable regarding experts that will be called to testify?

A

(1) Parties must give each other side a list of experts’ names, and
(2) experts must prepare a report with all information they’re testifying to

93
Q

Is information regarding experts not testifying at trial discoverable?

A

This expert information is only discoverable if “exceptional circumstances” making it impractical to get that info any other way

94
Q

When is there a duty to supplement information?

A

When you make a disclosure, then learn that what you initially supplied is incomplete or wrong, you have to supplement that information in a timely manner.

95
Q

Methods of discovery: Depositions

A

(1) Depositions can be written or oral, between party or a non-party (non-parties can be subpoenaed)
(2) 10 deposition limit
(3) You can’t depose the same person more than once without the court’s permission

96
Q

Methods of discovery: The interrogatory

A

(1) Only to a party to the suit, not a non-party
(2) Written questions to be answered in writing
(3) 25 interrogatories limit to a party

97
Q

Methods of discovery: Request for Admission

A

One party serves other party a written request to admit certain truths. Once they do, it becomes a conclusively established fact at trial

98
Q

Methods of discovery: Request to produce documents

A

(1) Papers, photographs, or any other documents in possession, control, or custody of other party
(2) Only to a party

99
Q

Methods of discovery: Physical or Mental Exam

A

Can be used:
(1) when the condition of a party is in controversy
But still:
(2) Requires a court order, and
(3) A show of good cause

100
Q

What orders can you obtain when one party is misusing discovery – requesting Irrelevant information, harassment and embarrassment, not cooperating?

A

(1) Object to request = argue it’s not relevant

(2) Seek protective order = shuts down discovery

(3) Order to compel = used when party is not complying with discovery

101
Q

What does the Conference of the Parties entail?

A

The parties MUST meet to discuss discovery, the case, and possible settlement.

They must submit a discovery plan to the court.

102
Q

What are the Scheduling Conference requirements?

A

The court MUST hold a scheduling conference within 90 days of filling the complaint to limit the time for motions and discovery.

Must issue a scheduling order.

103
Q

Must there be a final pretrial conference? What does that entail?

A

The judge MAY have a final pretrial conference to expedite trial and push settlement.

If court has the conference, it must enter a pretrial order that can only be modified to prevent manifest injustice.

104
Q

What is a temporary restraining order?

A

When you’re trying to prevent immediate irreparable harm

Can be granted without notice to the other party

Expires in 14 days

105
Q

What is a preliminary injunction?

A

When you want a restraining order for longer than 14 days

Notice and hearing is required!

You are trying to prevent irreparable harm

106
Q

What is the Seventh Amendment?

A

Right to a jury trial

107
Q

How many jurors must sit on a jury?

A

At least six jurors, and there is no requirement of 12. Unless parties stipulate to a different number, which is allowed.

108
Q

Must the verdict in a jury trial be unanimous?

A

Yes, unless the parties stipulate otherwise. But never assume this unless explicitly stated.

109
Q

When must demand for a jury trial occur?

A

Must be made within 14 days after service of the last pleading

110
Q

Is there a right to a jury in cases based on equity alone? What about cases with mixed legal and equitable issues?

A

There is NO right to a jury trial in solely equitable actions.

In mixed cases, try the legal issues FIRST in front of jury; then settle the equitable issues in front of the judge.

111
Q

Can you withdraw the demand for a jury trial?

A

Yes, if all the parties consent.

112
Q

How do state trials differ from federal ones?

A

(1) No right to jury trial
(2) Number of jurors varies from state to state
(3) Doesn’t have to be unanimous

113
Q

What is the judge’s role when there is no jury?

A

(1) Act as the finder of fact
(2) States findings and conclusions
(3) Holds mini-trial to dispose of the case

114
Q

What are the ways to dismiss a juror during jury selection?

A

(1) For cause – any whiff of bias or connection to the case will dismiss a juror. NO limit to dismissals for cause.

(2) Preemptory Challenge – Dismissing for no real cause. Each party gets 3 of these.

115
Q

Can a juror be dismissed from the jury based on race or gender?

A

Obviously not

116
Q

When can parties object to the judge’s jury instructions?

A

Parties must object before the jury retires to begin deliberations or they lose the argument on appeal.

117
Q

What can jurors bring into deliberation room with them?

A

Juror may take papers, exhibits, and notes with them into deliberation rooms, BUT nothing that was not introduced into evidence.

118
Q

Where are jurors allowed to study documents and do experiments?

A

INSIDE of the jury room. They cannot do that shit outside. Keep it among your fellow jurors.

119
Q

Can jurors talk to non-jurors about the trial?

A

Obviously not!

120
Q

What kind of prejudicial information would require a new trial once the jury is exposed?

A

Prejudicial information from an OUTSIDE source. Prejudicial information within the group is not a problem.

121
Q

What is post-trial bias? Can a new trial be ordered?

A

A new trial can be ordered IF:
(1) Juror failed to answer honestly about a material question,
AND
(2) a correct answer would have led to a valid challenge

122
Q

12b Motion

A

Defendant is attacking the complaint

123
Q

When can lack of subject matter jurisdiction be raised?

A

Any time

124
Q

When MUST lack of personal jurisdiction, improper venue, and insufficient service of process be raised?

A

They must be pled in the answer or 12(b) motion or they are waived.

125
Q

When can you raise a motion for failure to join a party?

A

May be raised before or at trial

126
Q

12(b)(6) Motion - Failure to state a claim – What is it? When is it raised? Is dismissal prejudiced?

A

12(b)(6) applies where:
(1) Even if every fact is true, no recovery is plausible, or where

(2) There are insufficient facts.
And:
(3) It must be brought up before or at trial.

Also:
Dismissal is prejudiced, unless court says otherwise.

127
Q

What is a Motion to strike?

A

(1) Before responding to a pleading and (2) within 21 days of service, a party can move to strike (3) for redundant, immaterial, or scandalous material

128
Q

What is a Motion for a more definitive statement?

A

(1) Before responding to a pleading
(2) You file a motion for a more specific statement
(3) because the language in the pleading is vague and ambiguous

129
Q

Motion for a more definitive statement

A

(1) Before responding to a pleading
(2)

130
Q

MSJeezy

A

Motion for Summary Judgement:
(1) no genuine dispute of a material fact
(2) motion is made 30 days after discovery

If denied = NOT appealable
Partial summary judgement = Allowed

131
Q

Who bears the burden of showing there is no genuine dispute under a motion for summary judgement? How can this be shown?

A

The party moving for summary judgement bears the burden of showing no genuine dispute.

Party can use affidavits based on their personal knowledge, depositions, and discovery to prove no dispute.

132
Q

Judgement as a Matter of Law (JMOL)

A

(1) Can be raised by defendant after plaintiff’s case
(2) Can be raised by either party at the close of evidence

133
Q

Whtat is the JMOL standard?

A

Whether a reasonable jury would not have a legally sufficient evidentiary basis to find for the party

Evidence viewed in light most favorable for the non-moving party

134
Q

What is a Renewed motion for a judgement as a matter of law?

A

(1) You MUST have made an original motion for JMOL

(2) And that motion was denied

(3) Case then goes to jury

(4) Within 28 days of the final verdict, you can make a second, renewed motion for JMOL

135
Q

When is a motion of relief from judgement proper?

A

(1) When there is a clerical error in the judgement
(2) When there is fraud or misconduct from the other party

136
Q

What kind of errors would be grounds to grant a motion for a new trial?

A

(1) errors that would have changed the outcome of the case
(2) Judge erroneously admitting or excluding evidence
(3) Improper conduct from lawyer, party, witness, or juror
(4) Verdict is against the clear weight of evidence

137
Q

What is remittitur? Is it allowed?

A

Remittitur = Trying to reduce the reward from trial

A new trial can be ordered when a reward is too excessively high, unless the parties agree to a reduction in the award. So yes, allowed.

138
Q

What is additur? Is it allowed?

A

Additur = Trying to add to a reward from trial

NO additur is allowed in federal trials.

139
Q

In a motion for a new trial based on newly discovered evidence, what must the moving party show?

A

(1) That the evidence was discovered after the end of trial
(2) That the party was reasonably diligent in searching for the evidence before or during the trial and couldn’t find it
(3) And the evidence is material

140
Q

What is a default judgement?

A

Judgement of default is entered when either the plaintiff is not adequately pleading the case, or the defendant is not adequately defending the case.

One party fails to plead or defend, so court enters judgement.

141
Q

What is voluntary dismissal? Does the court have to approve?

A

When a plaintiff voluntarily dismisses their own case.

If before defendant gives answer or moves for summary judgement = without prejudice

Subsequent dismissal = requires court approval

142
Q

What is involuntary dismissal?

A

When a case is dismissed by court order – the COURT usually dismisses the case with prejudice when:
(1) failure to state a claim
(2) failure to obey court order
(3) failure to prosecute

143
Q

When is involuntary dismissal with prejudice? When is it not with prejudice?

A

Involuntary dismissal is USUALLY with prejudice. It is only NOT with prejudice when:
(1) lack of jurisdiction
(2) venue
(3) failure to join an indispensable party

144
Q

When do you challenge a judge for cause for bias?

A

You challenge judge for cause for bias when there is an APPEARANCE of bias, even if judge reasonably believes they can be fair.

Parties can waive this right to challenge, usually.

145
Q

When must judge recuse themselves?

A

(1) When judge has personal knowledge of the facts
(2) When the judge once acted as a lawyer in a matter with the lawyers who subsequently arguing the case (conflict of interest)
(3) When judge expresses an opinion about the merits of the case
(4) When judge or immediately family member has financial interest in the subject matter or with with one of the parties to the case
(5) Extreme cases where it would violate the due process rights of the parties if the judge didn’t recuse (super rare)

146
Q

What is Res Judicata? Are there elements?

A

Res judicata = Claim Preclusion

(1) Res judicata occurs between the (a) SAME TWO PARTIES or (b) anyone in privity with the parties

(2) Matters arise from the same transaction or occurrence

(3) There was a judgement on the merits

147
Q

What is a res judicata merger?

A

If the plaintiff wins = their claim is MERGED into the judgement and they can NOT later sue on the same cause of action

148
Q

What is a res judicata bar?

A

If the plaintiff loses = they are BARRED from suing on the same cause of action – stop bringing it up, and catch the next train to Loserville.

149
Q

Can plaintiff split their claim? Also what does that even mean?

A

No! If there is a judgement on a claim, the plaintiff can NOT sue for any other part of the claim.

Example: If I sue for money damages and then lose, I can’t sue again for equitable relief. Have to sue for both at the same time.

150
Q

When does res judicata NOT apply?

A

No claim preclusion when there was no judgement on the merits! Ask how the first case ended. NO judgement on the merits if:
(1) plaintiff’s case is dismissed for (a) lack of jurisdiction (b) or improper venue, OR
(2) there was a settlement

151
Q

Can you bring a suit a second time if there was a change in the law that would change your yesterday loss into a today win?

A

NO - your claim is precluded! There was a final judgement! Move on with life! Res judicata!

152
Q

What does privity mean for res judicata?

A

Res judicata is normally between the same two parties, but it DOES ALSO APPLY when there’s a new character who has a special legal relationship with one of the parties – There is privity with that character.

153
Q

What is collateral estoppel? Are there elements?

A

Collateral Estoppel = Issue preclusion

Another party can be estopped from bringing up an issue:
(1) if it’s an identical issue to one that has already been litigated
(2) and the issue was ACTUALLY litigated and decided
(3) Issue must be necessary to the judgement

154
Q

When has an issue NOT been actually litigated and decided for purposes of collateral estoppel?

A

Collateral estoppel does not apply where:
(1) there was a settlement
(2) there was a default judgement

155
Q

When is the issue necessary to the judgement for collateral estoppel purposes?

A

When the party against whom preclusion is asserted must’ve had a full and fair opportunity and incentive to litigate the issue in the first suit

156
Q

How many parties are usually involved in collateral estoppel?

A

There are usually THREE people in collateral estoppel:
(1) Plaintiff
(2) Defendant
(3) Either new plaintiff or defendant

157
Q

Bob sues Jon.
Bob loses.
Now Fred, a new plaintiff, wants to sue Jon on the same issue that Bob did.

Can he? Or collateral estoppel?

A

Fred can sue! He is a new plaintiff. He did not have anything to do with the first case. That was between Bob and Jon. Fred still gets his day in court! That’s due process, baby.

New plaintiff, same defendant

158
Q

What is defensive use of collateral estoppel?

A

When the plaintiff sues the defendant on a particular issue and loses, so then plaintiff wants to sue NEW defendant on the same issue. (This is not allowed!)

Same plaintiff, new defendant

159
Q

Bob sues Jon for negligence. Bob loses, like a loser.
Now Bob wants to sue Fred, a new defendant, for the same negligence.

Can Bob sue, or can Fred collaterally estop Bob?

A

Fred CAN use collateral estoppel as a defense to Bob and preclude his issue.

160
Q

What is offensive use of collateral estoppel?

A

When one plaintiff sues a defendant and wins, and now a second plaintiff want to jump on the bandwagon and sue the defendant for the same issue.

GENERALLY this is disallowed/

161
Q

Jon sues Bob for negligence and wins like a winner.
Fred now also wants to sue Bob (like a copycat) and “collaterally estop Bob from denying liability” since Bob already been found negligent.

Can Fred do this? Is this his ‘gotcha’ moment?

A

NO! Fred can fuck off! He is a new plaintiff trying to use collateral estoppel against the same defendant as a means to profit from the defendant’s previous liability. This is generally NOT ALLOWED

162
Q

Quick and dirty collateral estoppel scenarios?

A

Same defendant, new unrelated plaintiff = Allowed, no estoppel

Same defendant who lost, second copycat plaintiff = Generally not allowed, no estoppel

Same plaintiff who lost, new defendant = Generally not allowed, YES estoppel

163
Q

Difference between res judicata and collateral estoppel?

A

Res judicata = Two parties trying to re-sue based on the PARTIES in first suit

Collateral estoppel = Three parties, multiple suits based on the ISSUES in first suit

164
Q

What to do if you see:
(1) Diversity case
(2) Two different jurisdictions
(3) But NOT which law applies, It’s asking what PRECLUSION applies (res judicata or collateral estoppel?)

(Looks like Erie!)

A

Ask:
(1) Where was first case decided?
If in federal court = federal
preclusionary rule applies

 If in state court = 
 preclusionary rules of 
 jurisdiction of the state court
165
Q

What is the full faith and credit clause?

A

One state must respect the other state’s judgements.

166
Q

When must the filing of notice of appeal occur?

A

The notice of appeal mustbe filed within 30 days of the judgement

167
Q

How to establish grounds for appeal?

A

You must:
(1) object at trial, and
(2) state the grounds for the objection
OR
Appeal is waived. Can’t bring anything up on appeal that wasn’t raised at trial.

168
Q

Does the appellate court focus on issues of law or fact?

A

Generally reviews issues of LAW, not facts, unless there was something completely erroneous

169
Q

What errors are appealable?

A

Would have changed the outcome of the trial = Appealable

Harmless error = NO appeal

170
Q

What if a party wants to appeal, but there was no final judgement?

A

Then the party is SOL because you can only appeal when there is a FINAL JUDGEMENT ON THE MERITS.

No clear final judgement = No appeal, generally

171
Q

What is an interlocutory order? Can they be appealed?

A

Interlocutory order = Order BEFORE the final judgement

Generally CANNOT appeal interlocutory orders

172
Q

What is the collateral order exception?

A

Exception to the rule that interlocutory orders cannot be appealed! Collateral orders ARE appealable IF:

(1) there hasn’t been a final judgement, and there’s been (2) an order that determines a right COLLATERAL to the main issue, and (3) delay would impair that particular right

173
Q

What are the requirements for a collateral order?

A

(1) The order conclusively determined the disputed question

(2) It resolves an important issue completely separate from the merits of the action

(3) It effectively makes it un-reviewable on appeal (because delay causes irreparable harm)

174
Q

Are decisions on:
Lack of jurisdiction
Improper venue
Failure to join an
Indepensible party
Final judgements?

And what does that mean?

A

Not a final judgement – You cannot appeal them!

175
Q

If there are multiple claims, and judge issues an order on ONE of the claims, is that ONE issue a final judgement?

A

One resolved claim is not a final judgement, UNLESS court finds there is no reason for delay and issues a judgement on that.

176
Q

Is the denial of summary judgment appealable?

A

It is only appealable AFTER trial is over. Not before that.

177
Q

Is a judicial order for a new trial appealable?

A

NO – an order for a new trial is not a final judgement, so it is not appealable.

178
Q

Can the judge enter a partial final judgement?

A

They CAN, but they generally don’t because they don’t because they prefer to avoid piecemeal appeals.

(Piecemeal appeals is fun to say out loud)

179
Q

Can you appeal the granting or denying of injunctions before all the issues are decided?

A

Yes, the granting and denying of injunctions is appealable.

180
Q

Is the certification or denial of a class action appealable?

A

Yes! Don’t ask why, don’t think about it harder than this. Certification or denial of class actions can be appealed.

181
Q

What is de novo?

A

De novo is the standard of review when the issue at the first trial was a matter of LAW

182
Q

What is the standard of review when the issue on appeal is a mistake that the court made regarding relevancy, prejudice, or evidence admissibility?

A

We ask whether it was an abuse of discretion.

183
Q

What is the standard of review on appeal for issues of fact?

A

We ask whether it was clearly erroneous.

184
Q

When does the Erie doctrine apply?

A

When there is a choice of law question in a diversity case

185
Q

What are the two Erie Questions

A

(1) Do I apply federal law or federal law?

(2) There are two states–do I apply state laws from State A or State B?

186
Q

Erie: Do you apply the state law or the federal law?

A

Apply state substantive law, unless the issue is procedural – Then apply federal procedural law.

187
Q

Is venue a procedural or substantive matter?

A

Venue = Federal PROCEDURAL issue, so apply federal law.

188
Q

Are statutes of limitations procedural or substantive matters?

A

Statute of limitations = STATE substantive law, apply the state law.

You don’t have to understand why! 2 + 2 is always 4. SOL is state substantive law bc I mf said so

189
Q

How do you determine which law to apply between two different states’ laws?

A

Apply the law of the state where the court sits and the case is being heard. Don’t get emotionally involved.

190
Q

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

A

Preliminary injunction requires notice and last longer than 14 days.

TROs do NOT require notice and can ONLY last 14 days.

191
Q

What are the elements of a temporary restraining order?

A

(1) No prior notice is required to the restrained party, unless there will be immediate, irreparable harm

(2) Order lasts no longer than 14 days and the order states the duration

192
Q

What are the elements of a preliminary injunction?

A

(1) Notice and hearing are required before injunction is granted
(2) Likely to succeed on merits of case
(3) Immediate, irreparable harm
(4) Harm to the moving party in absence outweighs the harm to other party when enjoined

MBE (8 decks)

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