Civil Procedure Flashcards
What are the 12(b) motions that are not waived if not included in an Answer/Motion?
- Lack of Subject Matter Jurisdiction - can be raised anytime
- Failure to Join a Party
- Failure to State a Claim - dismissal for this is with prejudice unless court says otherwise
Last two motions can be raised before or at trial.
What are the 12(b) motions that are waived if not included in an Answer or Pre-Answer Motion?
- Lack of Personal Jurisdiction,
- Improper Venue,
- Insufficient Service of Process
When can a Motion to Strike be filed?
Before responding to a pleading and within 21 days of service
It is used to remove redundant, immaterial, or scandalous material.
Motion for More Definitive Statement
Raised if pleading is vague or ambiguous
Standard for
Summary Judgment
Moving party must show that there is no genuine dispute of material facts
The motion can be made until 30 days after discovery.
Affidavits with a MSJ
When a motion for summary judgment is supported or opposed by an affidavit, a party may not rest upon mere pleading allegations or denials. Their response must be show by specific facts that would be admissible in trial.
Standard for
Judgment as a Matter of Law (JMOL)?
- A reasonable jury would not have a legally sufficient evidentiary basis to find for the non-moving party
- Evidence is viewed in light most favorable to the non-moving party
When can JMOL be raised?
- Defendant can raise it after the plaintiff’s cases; or
- Either party can raise at the close of all evidence
What must occur before a Renewed JMOL can be filed?
A motion for the judgment of matter must have been made first
The renewed motion must be made within 28 days of the verdict.
Under what circumstances can a Motion for Relief from Judgment be granted?
Clerical error, oversight, mistake in judgment, fraud/misconduct by the other party
What are the grounds for granting a Motion for a New Trial?
- Error in the trial that would have caused a different outcome,
- Judge erroneous admitted or excluded evidence,
- Improper conduct by a party/witness/lawyer/juror, or
- Verdict was against the clear weight of evidence
What is Remittitur?
When the award for damages is excessive
A new trial can be ordered unless the party agrees the award is excessive.
Is there Additur in Federal Court
No
What is the time frame for filing a Notice of Appeal?
Within 30 days of judgment
What must be done to preserve grounds for appeal?
Make objections at trial with the grounds for objections
Grounds for appeal are waived if not made at trial.
Harmless Error
There are no appeals if an error is harmless because the outcome would not have been different
What types of judgments or orders are generally appealable?
- Final judgments,
- Grant/denial of injunction,
- Certification/denial of Class action
What is an Interlocutory Order?
An order given before a final judgment
Generally not appealable, with exceptions for collateral orders.
Collateral Order Exception
Even if there has not been a final judgment, a collateral order can be appealed as long as:
* order conclusively determined that disputed question
* it resolves an important issue that is completely separate from the main issues
* a delay would cause irreparable damages
Decisions or orders by judges that are not appealable
- Lack of jurisdiction
- Improper venue
- Failure to join an indispensable party
- Order for new trial
Standard of Review
De Novo
Any issue of law
Standard of Review
Abuse of Discretion
- A mistake the court made
- Relevanyc
- Prejudice
- Admissibility of Evidence
Standard of Review
Clearly Erroneous
Issues of Facts
What is the Erie Doctrine?
Choice of law for diversity cases
It determines whether federal or state law applies.
