Civil Procedure Flashcards
Subject Matter Jurisdiction (SMJ)
A federal court MUST have SMJ in order to decide cases before it. A federal court has subject matter jurisidiction either through Federal Question Jurisdiction OR **Diversity Jurisdiction. ** A Federal Court cannot hear a case that does not meet on these requirements.
Federal Question Jurisdiction (SMJ)
A Federal Court will have Federal Question Jurisdiction if the complaint alleges a claim that arises under federal law.
Well-Pleaded Complaint Rule (FQ SMJ)
The federal question MUST be presented on the fase of the plaintiff’s complaint. Raising a DEFENSE or filing a COUNTERCLAIM under federal law **DOES NOT TRIGGER FEDERAL QUESTION JURISDICTION. **
Diversity Jurisdiction (SMJ)
A federal case has SMJ if there is Complete Diversity and the Amount in Controversy (AIC) exceeds $75,000.00.
A federal court will NEVER have diversity jurisdiction over probate or domestic relation matters
Complete Diversity (Diversity Jurisdiciton)
Complete Diversity is present – every Citizenship represented on the plaintiff’s side of the complaint must be different than every Citizenship represented on the defendant’s side of the case.
NOTE: ALSO NEED TO MEET AIC REQ.
Amount in Controversey (AIC) Requirement
The amount-in-controversy must exceed $75,000.00 ($75,000.01>).
1. A claim for injunctive relief can be valued by the benefit to the plaintiff or the cost of compliance to the defendant.
2. One plaintiff can aggregate all their claims against one defendant to meet the AIC requirement. One plaintiff can also aggregate all of their claims against multiple defendants IF the defendants are jointly liable.
3. If there are multiple plaintiffs, generally, each plaintiff’s claim must meet the AIC requirement seperately (unless supplemental jurisdiction applies)
Citizenship (diversity jurisdiction SMJ)
The Citizenship of each party to the action must be determined in order to decide if there is** complete diversity.** The rules for determining citizenship vary depending on the types of parties involved.
Citizenship of Individuals
For individuals, citizenship will be determined by the individuals state or country of Domicile.
Citizenship of Corporations
Corporations hold dual citizenship for diversity purposes.
1. The State or Country of incorporation; AND
2. The State or Country of its principal place of business (i.e., the “Nerve Center” – usually where corporate headquarters are located.)
Domicile (Diversity Jurisdiction)
The place of residence where the** individual intends to remain indefinitely**. Can only have one domicile at a time (individuals).
Domicile of Class Actions/Unincorpated Associations
Citizenship in class actions is based on the named parties in the class who are suing. Class members who are not named may join without regard to citizenship.
An unincorporated association or partnership is a citizen of every state of which its members are citizens.
Supplemental Jurisdiction
Supplemental Jurisdiction allows a federal court with valid SMJ over a case to hear additional claims which the court wouldNOT independently have jurisdiction over if ALL the claims constitute the “Same case or controversy”.
Same case or controversy (Supplemental JDX)
Claims constitute the “same case or controversy” if they arise out of a common nucleus of operative fact (meaning all the claims arise out of the same transaction or occurrence.)
Federal Question Case Supplemental JDX (Pendant Claims)
A federal court sitting in Federal Question JDX may hear a pendant state law claim under supplemental jurisdiction if the state law claim arises out of the same transaction or occurrence as the **federal **law claim.
Supplemental JDX in Compulsory Counterclaims
A compulsory counterclaim is a counterclaim (usually the Defendant countersuing the plaintiff) that arises out of the same transaction or occurrence as the original claim filed. A federal court sitting in diversity jurisdiction has supplemental jurisdiction over a compulsory counterclaim.
Supplemental JDX in Permissive Counterclaims
A permissive counterclaim is a counterclaim that does NOT arise out of the same transaction or occurrence as the original claim filed. A permissive counterclaim can only be heard if it independently satisfies diveristy jurisdiction (e.g. complete diversity is present + amount in controversy exceeds $75,000.00).
Supplemental Jurisdiction in Cross-Claims
A cross claim is a claim filed by a plaintiff against another plaintiff or a defendant against a co-defendant. A federal court sitting in diversity jurisdiction has supplemental jurisdiction over a cross-claim if the cross claim arises out of the same transaction or occurrence as the original claim.
Removal
Removal allows the defendant to move a case from state court to federal court IF the case could have been brought originally in federal court. Removal MUST be sought:
1. By the Defendant; AND
2. Within 30 Days of learning the grounds for removal
3. But NEVER beyond 1 year after the** commencement of the action**, unless the plaintiff acted in bad faith to try and make the case non-removable
Grounds for Removal in Federal Question Cases
Defendant in a FQ case may remove the case to federal court if the well-pleaded complaint discloses that the claim is based on federal law.
Grounds for Removal in Diversity Cases
Defendant may remove the case to federal court if:
1. Complete Diversity is present.
2. The amount in controversy exceeds $75,000.; AND
3. The action is brought in a state in which no defendant is a citizen (Defendant can’t remove to their home state)
Personal Jurisdiction
A court MUST have personal jurisdiction in order to adjudicate the rights and liabilities of a defendant. If any of the four “traditional bases” are satisfied, the court will have personal jurisdiction over the defendant.
Four Bases for Personal Jurisdiciton (Domicile, Waiver, Phyiscal Presence, Consent)
1. Domicile: Domicile will be satisfied if the Defendant is domiciled in the forum state. If the Defendant is a corporation, must be “at home” in the forum state (e.g. state of incorporation + principal place of business).
2. Phyiscal Presence: Service of process on the defendant while he is physically present in the forum state will satisfy this base UNLESS the Defendant was in the state only to answer a summons or was brought there by force or fraud.
3. Consent: Out of state Defendant may consent to personal jurisdiction (can be express or implied by conduct).
4. Waiver: Unlike subject-matter jurisdiction, lack of personal jurisdiction can be waived by the defendant. A defendant waives any objection by substantial participation on the merits before raising the objection (e.g. making a general appearance).
State Long-Arm Statutes (when 4 bases aren’t present)
A state-long-arm statute allows a court to exercise personal jurisdiction over an out of state defendant Where no traditional base applies. Constitutionally, this requires that Minimum Contacts exist between the defendant and the forum state.
Minimum Contacts Requirements
Sufficient **Minimum Contacts **exist when:
1. General or Specific Jurisdiction is present.
2. The exercise of such jurisdiction does NOT offend traditional notions of fair play and substantial justice – Courts examine the following factors to determine fairness of the forum jurisidiction in regard to the Defendant.
(a) Convenience for the Defendant;
(b) Whether the forum state has a legitimate interest in providing redress;
(c) Whether the Plaintiff’s Interest in obtaining relief is proper;
(d) The interstate judicial system’s interest in efficiency; AND
(e) The shared interest of the several states in furthering social policies
General Jurisdiction (Minimum Contacts)
General Jurisdiction is present when the Defendant is essentially “at home” in the forum state (i.e, domicile or principal place of business/state of INC.). When general jurisidction is present, the Defendant can be sued on any claim (even if the claim is unrelated to the defendant’s contact with the forum state.)
Specific Jurisdiction
Specific Jurisdiction gives courts jurisdiction over out-of state defendant’s for the defendant’s specific contact with forum state. The claim MUST arise out fo the defendant’s specific contact with the forum state. Specific Jurisdiction is present if:
1. The Defendant purposely availed himself of the benefits of the forum state (e.g., using state highways); AND
2. The Defendant knew or reasonably should have anticipated that his activities in the forum state made it foreseeable that he may be “haled into court” there.
Stream of Commerce Cases (Specific Jurisdiction)
Generally, there will be specific jurisdiction over a defendant if the defendant:
(1) Places a product in the stream of commerce in the forum state; AND
(2) Commits some other act to show intent to serve the forum state.
Internet Stream-of-Commerce Cases (Specific Jurisdiction)
Generally, internet caes involve either passive or active websites.
(1)Passive Websites: a passive website is a website used for information purposes rather than online sales and commerce. Generally, the maintenance of a passive website without more activity in the forum, is insufficient for general jurisdiction.
(2)Active Websites: An active website is a website that is used for online commerce to make sales. The maintence of an active website may be sufficient for general jurisdiction if the defendant is conducting significant business such that the defendant is at home in the forum.
Service of Process
A civil action is commenced by filing a complaint with the court. After the plaintiff files a complaint, a summons MUST be served on the defedant with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within 90 days after the complaint is filed with the court. Any person who is at least 18 years old and NOT a Party to the action can serve the summons and complaint.
Service on a person within the United States
An individual within a judicial district of the United States may be served by:
1. Delivering a copy of the summons and complaint to the individual personally;
2. Leaving a copy at each of the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resdies there; OR
3. Delivering a copy of each to an agent authorized by appointment or by law to recieve service of process
Service on an individual in a foreign country
Unless prohibited by that country’s law, an individual in a foreign country may be served by:
1. Delivering a copy of the summons and complaint to the individual personally;
2. Using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; OR
3. Other means not prohibited by international agreement, as the court orders.
Service on a corporation, partnership, or association
Service on a corporation, partnership, or association may be made by delivering a copy of the summons and complaint to an officer, managing or general agent, or any other agent authorized by law to receive service of process.
Venue
Venue determines the judicial district in which a lawsuit may be filed or commenced. Venue is proper in a judicial district where:
1. ANY defendant resides IF all the defendants reside in the same state.;
2. A substanital part of the events or omissions, giving rise to the claim occurred, or a substantial part of property that is the subject of the action is located.; OR
3. If there is NO district anywhere in the United States that satisfies (1) or (2); a judicial district in which ANY Defendant is subject to personal jurisdiction
Residence (Venue)
For venue purposes, the rules governing the defendant’s residence vary depending on the type of party involved.
1. Individuals:An individual is deemed to reside in the judicial district where he is domiciled.
2. Business Entitites:A business entity is deemed to reside in any judicial district where the entity is subject to personal jurisdiction with respect to the action in question.
3. Foreign Defendants: A defendant who is NOT a resident of the united states, whether a citizen or alien, may be sued in ANY Judicial district.
Proper Venue Transfer
If venue is proper, the court may nonetheless transfer the case for the convenience of the parties or witnesses to any court where the case could have been originally filed (i.e., the transferee court must have valid SMJ + personal jurisdiction over the defendant + proper venue).
Improper Venue
If the venue is improper, the Court MUST:
1. Dismiss the case; OR
2. Transfer the case to a venue in which the case could have originally been filed (i.e. the transferee court must have valid SMJ + personal jurisdiction over the defendant + proper venue).
Choice of Law (Proper Original Venue)
if a court transfers a case to another venue, the law that transferee court must apply depends on whether the original venue was proper and the type of case involved.
1. Proper Original Venue:
* Diversity cases: In a diversity case, the transferee court must apply the law that would have been applied in the district court that transferred the case.
* Federal Question Case:In a federal question case the court must apply the federal law as interpreted by its own federal court of appeals.
Choice of Law (Improper original venue)
If the transferor court had improper venue:
(A) Diversity Cases: In a diversity case, the transferee court must apply the choice-of-law rules of the state in which it is located, as opposed to the state law of the district court that transferred the case.
(B) Federal Question Cases: In a federal question case, the transferee court must apply the federal law as interpreted by its own federal court of appeals.
Abstention
Generally, a federal court with valid SMJ is required to adjudicate controversies before it. However, a federal court may abstain from hearing a case or stay the matter pending the outcome of a state court action in order to avoid intruding upon the powers of a state court.
Preliminary Injunctions
A preliminary injunction preserves the status quo of the parties until a final judgment on the merits can be reached. There are two types of preliminary injunction:
(1) Prohibitory Injunction: A prohibitory injunction prohibits or restrains a party from engaging in specified behavior.
(2) Mandatory Injunction: A mandatory injunction requires the defendant to engage in an affirmative act. Courts are more reluctant to grant mandatory injunctions than prohibitory injunctions.
Required Contents of an injunction
Every order granting an injunction must:
(1) State the reasons as to why it was issued
(2) State its terms specifically; AND
(3) Describe in reasonable detail the act or acts restrianed or required
Plaintiff Required Showings for Granting of Injunction
A plaintiff seeking a preliminary injunction must establish that:
(1) She is likely to suffer irreperable harm if the preliminary injunction is not issued;
(2) She is likely to suffer greater harm than the defendant will if the preliminary injunction is not issued
(3) She is likely to succeed on the merits; AND
(4) Granting the injunction is in the best interest of the public
Required Notice for Injunction
The non-moving party MUST be given** notice** and an opportunity to oppose the preliminary injunction at a hearing before the court.
Temporary Restraining Orders (TROs)
A TRO preserves the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction. A TRO may NOT last longer than 14 days unless good cause exists or the non-moving party consents.
Mandatory Contents of a TRO
Every order granting a TRO must:
(1) State the Reason why it was issued;
(2) State its terms specifically; AND
(3) Describe in reasonable detail the act or acts restrained or required.
Requirements of a TRO
A plaintiff seeking a TRO must establish that:
(1) She is likely to suffer irreperable harm if the TRO is not issued.
(2) She is likely to suffer greater harm than the defendant will if the TRO is not issued;
(3) She is likely to succeed on the merits; AND
(4) The TRO is in the best interest of the public.
Ex-Parte Notice
Unlike a preliminary injunction, the court may issue a TRO without written or oral notice to the non-moving party ONLY If:
(1) Specific facts in an affadavit or a verified complaint clearly show that immediate and irreperable harm will result to the movant before the non-moving can be heard in opposition; AND
(2) The movant’s attorney certifies in writing any efforts made to give notice to the non-moving party and the reasons why it should not be required.
The Complaint
The Complaint is the first pleading filed by the plaintiff – it commences the action. A complaint MUST state:
(1) Grounds for subject matter jurisdiction;
(2) A short statemetn of the claim that shows the pleader is entitled to relief; AND
(3) A demand for judgment for relief.
Pre-Answer Motion
After the complaint is filed, the Defendant may file a Pre-Answer Motion or respond with an Answer.
Defenses raisable in a Pre-Answer Motion
The defendant’s pre-answer motion may raise any or all of the following defenses:
1. Lack of subject-matter jurisdiction;
2. Lack of personal jurisdiction;
3. Improper venue;
4. Insufficiciency of Process;
5. Insufficiency of Service of Process;
6. Failure to state a claim upon which relief can be granted; AND/OR;
7. Failure to join an indispensible party under compulsory joinder.
Contents of the Answer
The Answer MUST state:
(1) a specific denial or admission of each allegation in the complaint OR a general denial of all allegation with specific admission if necessary; AND
* NOTE: a failure to deny an allegation constitutes an admission.
(2) Any affirmative defenses that the respondent has, or is that defense is deemed waived.
Timing of the Answer
The timng of the answer depends on whether a pre-answer motion is made:
(1) If no pre-answer motion is made. a defendant who is formally served must present an answer within 21 days after service.
(2) if a pre-answer motion is made, the responsive pleading must be served within 14 days after the court’s denial or postponement of the motion
Relation Back for a NEW PARTY
If a pleading is amended to add a new party or change the name of a party the amendment will relate back to the date of the original pleading if:
(a) It asserts a claim that **arose out of the same transaction **or occurrence set out in the original pleading;
(b) the party to be brought in by amendment receives notice of the action within 90 days after the filing of the original complaint such that he will not be prejudiced by defending his case on the merits; AND
(c) The party to be brought in by amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity.
Amending a Pleading by Right
A party may amend a pleading once by as of right within 21 days if no responsive pleading is required. If a responsive pleading is required, the party may amend within** 21 days** of whichever event is **earlier: **
(a) The service of the responsive pleading
(b) Being served with a rule 12(b) motion
Compulsory Joinder of Parties
A Plaintiff MUST join an absent party or face dissmial of his lawsuit when:
(1) The court has personal jurisdiction over the absentee
(2) The absentee’s presence would not destroy subject matter jurisdiction or venue; AND
(3) Either:
(a) Complete relief cannot be accorded among the other parties to the action without the absentee party; OR
(b) The absentee has such an interest in the action that a decision in his absence will impede his ability to protect the interest or leace any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.
Amending a pleading by Leave of the Court
The court can permit an amendment to a pleading when justice so requires. Generally, a court will permit a proposed amendment if the proposed amendment:
(a) is not subject to dismissal under Rule 12(b); AND
(b) Would NOT result in undue prejudice to the opposing party.
Relation Back for a NEW CLAIM
If the pleading is amended to include a new claim or defense the amendment will relate back to the date of the original pleading if the new claim or defense arose out of the same transaction or occurrence set out in the original pleading.
Interpleader
Interpleader allows a plaintiff or defendant to initiate a lawsuit in order to compel two or more parties to litigate a dispute.
Interpleader by a Plaintiff: Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though:
(1) The claims of the several claimants, or titles on which their claims depend, lack a common origin or are adverse and independant rather than identical.
(2) The plaintiff denies liability in whole or in part to any or all claimants.
Interpleader by a Defendant: A defendant exposed to similar liability may seek interpleader through a cross-claim or counterclaim.
Intervention
Interventon permits a nonparty to intervene in an action. Intervention may be granted to a party as of right OR permissively
**(1) Intervention as of right: **Intervention is available as of right when the applicant claims an interest in the property or transaction that is the subject matter of the action, ANDthe disposition of the action without them may impair their ability to protect that interest.
Permissive Intervention: Intervention is permissive when the applicant’s claim or defense and the main action have a question of law or fact in common. Permissive intervention must be supported by its own jurisdictional grounds and is discretionary with the court.
Relation Back Doctrine (Amendment to Pleading)
The Relation Back Doctrine determines whether an amendment to a pleading will relate back to the date of the original pleading. This is important for statute of limitations purposes.
Permissive Joinder
The Parties MAY join as plaintiffs or be joined as defendants when:
(1) Some claim is made by each plaintiff and against each defendant that arises out of the same transactions or occurrences; AND
(2) There is a question of fact or law common to all parties
Class Actions
Class Action is a type of suit where one of the parties is a group of people who are represented collectively by a member or members of that group (called “named parties”). A class action must be proper and certified.
Requirements for a Class Action to be Proper
A class action is proper if:
1. The class is so numerous that joinder of all the members is impracticable;
2. There are questions or law or fact common to the class;
3. Named parties’ interests are typical of the class; AND
4. Named parties will adequately represent the interests of the absent members of the class.
Requirements for a class action to be Certified
A class action that is proper will be certified IF:
1. Seperate actions would create a risk of inconsistent results or impair the interests of unnamed parties
2. The defendant has acted or refused to act on grounds applicable to the whole class and injunctive or declaratory relief is appropriate for the class as a whole; OR
3. **Common questions of law or fact predominate ** over individual issues and a class actionis superior to alternative methods of adjudication
Rule 26(f) Pretrial Conference
Discovery
Under Rule 26(f) of the FRCP: The parties must confer as soon as it is practicable to:
(1) consider their claims and defenses, the possibility of settlement, initial disclosures (see below), and a settlement plan; AND
(2) submit to the court a proposed discovery plan addressing the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required by the court.
NOTE: Additional Pretrial Conferences may be held to expedite the trial and foster settlement
Initial Disclosures
Each party to an action MUST make certain initial disclosures, even if an opposing party did not ask for such information, within 14 days of the 26(f) conference.
These disclosures include: names etc. of individuals likely to have discoverable information that the opposing party may use to support its claims or defenses, UNLESS the use would be solely for impeachment. Also, copies or descriptions of documents, ESI, and tangible things for same purposes.
ALSO: Computation of damages and materials upon which computation is based; AND copies of insurance agreements under which an insurer might be liable for all or any part of a judgment that might be entered.
Depositions
Depositions.A party may take the deposition of any party or nonparty witness (with a subpeona) at any time after the party has made its intitial disclosures. Without leave of the court, the plaintiff’s and defendants, each as a group, are limited to ten depositions by oral or written examination. An oral deposition is limited to one day of 7 hours, unless the parties agree otherwise or the court orders otherwise.
Notice. A party who seeks an oral deposition of a person must give reasonable written notice to every other party, stating the time and place of the deposition and, if known, the deponent’s name and address.
Limitations on Discovery
On Motion or on its own, the court is required to limit the frequency or extent of discovery if the court determines that:
(1) the discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient or less expensive; OR
(2) the party seeking discovery had ample opportunity to obtain the information by discovery in the action
Duty to Preserve Relevant Information
When it can be reasonably anticipated that an action will be filed, all parties have a duty to preserve potentially relevant evidence. The term “evidence” includes all information, including not just hard copy documents, but all electronically stored information on any medium and in any electronic format.
Interrogatories
Availability. Any party may serve no more than** 25 interrogatories** on any other party. Interrogatories may NOT be used on nonparties.
Scope.Interrogatories may relate to any non-privileged matter that is:
(1) Relevantto any party’s claim or defense in the action; AND
(2) Proportional to the needs of the case
Answers and Objections: Interrogatories must be answered fully and seperately under oath by the party to whom they are directed, unless the responding party objects by stating the specific grounds for the objection. The responding party must serve it’s answers and any objections within 30 days of being served with the interrogatories.
Scope of Discoverable Information
Generally, discovery is permitted with regard to any non-privileged matter that is:
(1) Relevant to any party’s claim or defense in the action; AND**
(2) **Proportional **to the needs of the case
Attorney Work Product Doctrine
The work product doctrine protects materials prepared by an attorney in anticipation of or during litigation from discovery by opposing counsel. Such materials will NOT be protected from disclosure to opposing counsel IF:
(1) The materials are otherwise unavailable;
(2) There is substantial need for the materials; AND
(3) The materials cannot be obtained without undue hardship
However, a writing reflecting an attorney’s impressions, conclusions, opinions, legal research or theories is NEVER discoverable.
When a party withholds information she beleives is privileged or protected by work product doctrine, the party must make the claim expressly and describe the nature of the documents in a manner that will enable other parties to assess the applicability of the privilege or work-product doctrine.
Rule 12(b) Motion To Dismiss
The following defenses may be raised in a 12(b) Motion to Dismiss:
1. Lack of Subject Matter Jurisdiction (can be raised anytime)
2. Lack of Personal Jurisdiction (waived if not in pre-answer or answer)
3. Improper Venue (Waived if not in pre-answer or answer)
4. Insufficient Process (waived if not in pre-answer or answer)
5. Insufficient Service of Process (waived if not in pre-answer or answer)
6. Failure to State a claim upon which relief can be granted (see card 74)
7. Failure to join an indespensible party under compulsory joinder (can be raised most of the trial)
12b(6) Failure to State a Claim Upon Which Relief Can Be Granted
This defense may be raised in a pleading, in a motion for judgment on the pleadings, or at trial.
2 Step Analysis Under Rule 12b6 a claim for relief can be dismissed if either fails to assert a legal theory for recovery that is cognizable or fails to allege facts sufficient to support a cognizable claim.
(i) First, the court msut identify and reject legal conclusions unsupported by factual allegations; THEN
(ii) Second, the court should assume that the well-pleaded factual allegations are true, and drawing on the courts judicial experience and common sense, determine whether the allegations plausibly give rise to entitlement of relief.
Motion for Summary Judgment
a) A MSJ can be filed any time until 30 days after the close of discovery.
b) a MSJ must be granted if, from the pleadings, affadavits, and discovery materials on file, when viewing the evidence in the light most favorable to the nonmoving party it appears that:
(1) No genuine dispute of material fact exists; AND
(2) The moving party is entitled to judgment as a matter of law
Motion for Judgment as a Matter of Law (JMOL)
Trial Motion
A JMOL (formerly, “directed verdict”) may be filed by either party after close of the nonmoving party’s evidence OR at the close of all evidence.
The motion for JMOL will be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party. A JMOL is a prerequisite for the making of a renewed motion for judgment as a matter of law after the trial.
Res Judicata (Claim Preclusion)
Res Judicata provides that a final judgment on the merits of an action precludes the parties from successful litigation of an identical CLAIM in a subsuquent action. To bar a claim under res judicata:
(1) The original claim must have resulted in a valid final judgment on the merits
(2) The original and later-filed causes of action must be sufficiently identical(i.e., related to the same transaction or occurrence); AND
(3) The Claimant and Defendant must be the same (and in the same roles) in both the original and later filed action, or Privity exists between the parties in the original and later filed action.
Collateral Order Doctrine
The doctrine of collateral order allows a party to appeal interlocutory rulings if the ruling decides a claim or issue that is:
1. Seperable from and collateral to the merits of the case;
2. Involves a serious and unsettled legal question; AND
3. Would be effectively unreviewable if the court waited until final judgment to hear the claim or issue.
Mandamus Review
Under mandamus review, a court of appeals can review an order that is an abuse of judicial authority (e.g. orders beyond the trial court’s jurisdiction, orders that violate a mandatory duty of the trial court, etc.) such review does NOT extend to all order that constitute an error of law.
Appeal of Interlocutory Order
An Interlocutory order is an order that is provisional, interim, temporary, or non-final (e.g. TROs). Although most interlocutory orders are NOT immediately appealable, certain equitable orders are immediately reviewable as a matter of right, including:
(1) An order granting, modifying, or dissolving an injunction
(2) An order appointing or refusing to appoint a receiver; AND
(3) A decree determining the rights and liabilities of the parties to admiralty cases, in which appeals from final decrees are allowed.
Final Judgment Rule
The federal courts of appeals have jurisdiction over appeals from final judgments of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.
Motion for a New Trial
The court may, on motion, grant a new trial (on all issues or with respect to only certain issues or parties) for any of the reasons for which new trials have traditionally been granted, such as:
(1) an error made at trial that renders the judgment unfair
(2) Newly discovered evidence that existed at the time of the trial was excusably overlooked and would have likely altered the outcome of the trial
(3) Prejudicial Misconduct of counsel, judge, or juror
(4) A verdict that is against the clear weight of the evidence
(5) A verdict that is based on false evidence such that a new trial is necessary to prevent injustice
(6) A verdict that is excessive or inadequate
if the verdict is exessive, the court may order a new trial or offer the plaintiff remittur
Remittur
When the verdict is exessive, the court can order a new trial or offer the plaintiff Remittur, which allows the plaintiff to choose between a lesser award or a new trial. NOTE: “Additur” is never permitted in federal court, the only option is a new trial.
Effect of a Default Judgment
A default judgment will have a preclusive effect if the court had valid personal and subject matter jurisdiction. States vary to the extent of preclusion a default judgement has, but generally a party is barred from asserting defenses or compulsory countercliams that could have been raised in the original action.
Renewed Motion for Judgment as a Matter of Law
Post Trial Motion
A renewed motion for JMOL, may be filed no later than 28 days after the entry of judgment. It may ONLY be raised if a JMOL was previosly filed.
The motion will be granted if when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party. A party is generally limited to those issues raised in the JMOL.
Collateral Estoppel (Issue Preclusion)
Collateral estoppel precludes the re-litigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. To bar an issue under collateral estoppel:
(1) The issue sought to be precluded must be the **same ** as that involved in the prior action (i.e. the facts relevant to the particular issue and the applicable law must be identical).
(2) The issue must have been actually litigated in the prior action.
(3) The issue must been determined by a final judgment on the merits; AND
(4) The determination of the issue must have been essential to the prior judgment.
