Civil Procedure

Question 1

Deadline to file Notice of Appeal

Answer 1

within 30 days of final judgment or order being appealed

if US is a party, then it’s 60 days

Question 2

Which courts can hear appeals from district courts?

Answer 2

the federal courts of appeal

Question 3

Final Judgment Rule

Answer 3

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

Question 4

Interlocutory Orders

Answer 4

orders issued during litigation that are not final

Question 5

Interlocutory Appeal

Answer 5

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

Question 6

Interlocutory Orders Appealed as Matter of Right

Answer 6

(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

Question 7

Can a district court order interlocutory appeal?

Answer 7

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

Question 8

Collateral Order Doctrine

Answer 8

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)

Question 9

When are class certifications appealable?

Answer 9

within 14 days following district court’s decision to grant or deny certification

court of appeals has full discretion

Question 10

What is a writ of mandamus?

Answer 10

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

Question 11

Mental/Physical Exams

Answer 11

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”

Question 12

How can mental/physical exams be requested?

Answer 12

(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

Question 13

What does the prior notice for medical/physical examination entail?

Answer 13

time, place, conditions, scope of examination, and identity of examiner

CA: attorney needs to attend physical exam

Question 14

When can parties and nonparties be deposed?

Answer 14

at any time after the discovery conference

Question 15

When does leave of court have to be obtained for depositions?

Answer 15

(1) exceed the 10-limit deposition limitation
(2) depose a witness a second time; or
(3) depose a person before the discovery conference

Question 16

Are discovery rules procedural or substantive law?

Answer 16

They are procedural so federal law applies

Question 17

Erie Doctrine

Answer 17

U.S. district court sitting in diversity must apply substantive law of the state in which it’s located and federal procedural law

Question 18

When is discovery permitted?

Answer 18

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

Question 19

How to compel deposition of nonparty?

Answer 19

a subpoena must be served

Question 20

Physician-Patient Privilege & when is it waived?

Answer 20

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

Question 21

Right to Jury Trial

Answer 21

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!

Question 22

Are legal issues heard first or equitable issues?

Answer 22

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

Question 23

Timing for Jury Trial

Answer 23

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

Question 24

What is the review for a JMOL?

Answer 24

If the court finds there is insufficient evidence for a jury to reasonably find for the party (clearly erroneous)

Question 25

Are attorney fees counted toward the amount in controversy requirement?

Answer 25

No, UNLESS the fees are recoverable by contract or by statute

Question 26

When is diversity jurisdiction determined and with what claims?

Answer 26

At the time of the filing based on ALL claims asserted at that time