Civil Procedure Flashcards
Deadline to file Notice of Appeal
within 30 days of final judgment or order being appealed
if US is a party, then it’s 60 days
Which courts can hear appeals from district courts?
the federal courts of appeal
Final Judgment Rule
Appeals courts can only hear cases with a final judgment on the merits of the entire case
exception: can hear cases if there is basis for interlocutory appeal
Interlocutory Orders
orders issued during litigation that are not final
Interlocutory Appeal
appeal of interlocutory order – rarely granted because they are not final
sometimes appealable as a matter of right like the denial of class certification
others only appealable under the collateral order doctrine
Interlocutory Orders Appealed as Matter of Right
(1) injunctive orders
(2) orders appointing or refusing to appoint a receiver
(3) orders directing sale or disposal of property
(4) patent orders that are final except for accounting
(5) orders denying arbitration
Can a district court order interlocutory appeal?
Yes in a written order that states
(1) the order involves a controlling question of law
(2) substantial ground for difference of opinion and
(3) decision on appeal could help bring about end of litigation
Collateral Order Doctrine
Can appeal interlocutory order if:
(1) conclusively determines disputed question
(2) resolves an important issue completely separate from the merits
(3) effectively unreviewable on appeal from final judgment
Extremely narrow & rare (usually has applied to immunity and double jeopardy)
When are class certifications appealable?
within 14 days following district court’s decision to grant or deny certification
court of appeals has full discretion
What is a writ of mandamus?
gives appeals courts authority to review lower court decisions for abuse of judicial authority
granted if:
(1) petitioner has clear and indisputable right to relief
(2) no alternative route to desired relief exists
(3) writ is proper under circumstances
extremely rare measure
Mental/Physical Exams
If a mental or physical condition of a party or a person in the legal custody or control of a party is in controversy, then the court may order the person to submit to a physical/mental examination by a “suitably licensed or certified examiner”
How can mental/physical exams be requested?
(1) can only be made upon motion for good cause shown and
(2) person to be examined and all parties must be given prior notice
What does the prior notice for medical/physical examination entail?
time, place, conditions, scope of examination, and identity of examiner
CA: attorney needs to attend physical exam
When can parties and nonparties be deposed?
at any time after the discovery conference
When does leave of court have to be obtained for depositions?
(1) exceed the 10-limit deposition limitation
(2) depose a witness a second time; or
(3) depose a person before the discovery conference
Are discovery rules procedural or substantive law?
They are procedural so federal law applies
Erie Doctrine
U.S. district court sitting in diversity must apply substantive law of the state in which it’s located and federal procedural law
When is discovery permitted?
any matter relevant to any party’s claim or defense in the action that is not otherwise privileged
admissibility is not considered in determining relevance
How to compel deposition of nonparty?
a subpoena must be served
Physician-Patient Privilege & when is it waived?
FRCP doesn’t recognize this privilege
many states protect these communications when they are for the purpose of obtaining privilege
BUT privilege is waived when (1) patient’s physical condition is at issue or (2) the case was brought in federal court and state law doesn’t apply
Right to Jury Trial
7th Amendment provides for right to jury trial in federal court in all “suits of common law” where the amount in controversy exceeds $20
only extends to money damages, not equitable remedies!
Are legal issues heard first or equitable issues?
If the same case involves both legal and equitable issues, then the legal claims are tried first before jury and equitable claims later by the court
Timing for Jury Trial
Any party may make a demand for trial by jury. It must be in (1) writing and (2) served within 14 days after service of the last pleading directed to the issue that is sought to be tried by the jury
If not, a party waives the right to jury trial
What is the review for a JMOL?
If the court finds there is insufficient evidence for a jury to reasonably find for the party (clearly erroneous)
Are attorney fees counted toward the amount in controversy requirement?
No, UNLESS the fees are recoverable by contract or by statute
When is diversity jurisdiction determined and with what claims?
At the time of the filing based on ALL claims asserted at that time
