Civil Procedure Flashcards
1
Q
Subject Matter Jurisdiction
A
Power of the court to decide this kind of case
Federal Courts: Limited SMJ
State Courts: Unlimited SMJ
2
Q
Pleading SMJ
A
Must be affirmatively pleaded in every case
3
Q
Waiver of SMJ
A
Lack of SMJ cannot be waived by failing to object or by affirmative consent
4
Q
Objection to SMJ
A
Can be raised by any party at any time
Can be brought for the first time on appeal
5
Q
Federal Question Jurisdiction
A
Exists for a claim arising under federal law
6
Q
Well-Pleaded complaint
A
The face of the complaint must show that plaintiff’s claim is based on federal law.
Presence of a federal defense does not matter
7
Q
Diversity Jurisdiction
A
Cases between citizens of different states, or citizens of a state and a foreign country, if the amount in controversy EXCEEDS $75,000, exclusive of interests and costs
EXCEPTIONS: Probate and domestic relations actions cannot be brought in federal court under diversity jurisdiction
8
Q
Complete Diversity
A
Every citizenship represented on the plaintiff’s side of the case must be different than every citizenship on the defendant’s side
9
Q
Minimal Diversity
A
Provided by a few statutes
Exists when any plaintiff is diverse from any defendant
Permitted in:
- Federal Interpleader Act
- Class Actions With Claims more than $500
- Interstate Mass Torts
10
Q
Time for Determination of Diversity
A
Must exist when the complaint is filed
11
Q
Individual Citizenship
A
Citizen of the state or country of domicile
Domicile is permanent residence.
Can have only one domicile at a time.
Residence + An intention to remain indefinitely
12
Q
Citizenship of Aliens
A
Diversity jurisdiction exists for controversies between a citizen of a state and a citizen of a foreign country
13
Q
Citizenship of Representative Parties
A
Generally, the citizenship of the representative party controls
Except:
- Citizenship of decedent
- Citizenship of infant or incompetent person
14
Q
Class Action Citizenship
A
Citizenship of the named (representative) parties counts
Class members not named may join without regard to citizenship
15
Q
Citizenship of Corporations
A
Citizen of:
- The state, states, or countries in which it is incorporated; and
- The state or country of its principal place of business (“nerve center”)
16
Q
Citizenship of Partnership and Unincorporated Associations
A
Citizen of every state of which its members are citizens
Applies to: unions, trade associations, partnerships, and limited partnership
17
Q
Devices to Create or Destroy Diversity
A
Actions that create or defeat diversity are permitted as long as they are not fraudulent.
Moving: permitted as long as genuine
Assignment of Claim: permitted so long as the assignment is complete and real and not collusive
18
Q
Amount in Controversey
A
Any good faith allegation will suffice. Case will only be dismissed for a failure to meet the AIC when it appears to a legal certainty that recovery in excess of $75,000 cannot be had
(Diversity Only)
19
Q
Aggregation of Claims
A
Plaintiff can aggregate all his claims against the defendant to meet the AIC requirement.
Plaintiff can aggregate claims of multiple defendants if they are jointly liable, other wise plaintiff cannot add up his claims against multiple defendants.
Each plaintiff’s claims must meet the AIC requirement unless there is supplemental jurisdicition
20
Q
Supplemental Jurisdiction
A
Allows a federal court with subject matter jurisdiction over a case to hear additional claims over which the court would not independently have jurisdiction if ALL the claims constitute the same case or controversy (common nucleus of operative fact)
If one plaintiff has a claim exceeding $75,00, the claims of additional plaintiffs can be heard regardless of the amount if all the claims:
- Arise out of the same transaction or occurrence; and
- Complete diversity is maintained
21
Q
Diversity and Counterclaims
A
Compulsory counterclaims do not have to meet the jurisdictional minimum of $75,000 (arise out of the same transaction or occurrence as the main claim)
Permissive counterclaims do
22
Q
Supplemental Cross Claims
A
Claim by plaintiff against another plaintiff, or by a defendant against a co-defendant
Cross-claim and main claim must share a common nucleus of operative fact
23
Q
Multiple Plaintiffs/Permissive Joinder/ Class Action
A
If the claim of one diverse plaintiff against Defendant A satisfies the jurisdictional amount, other diverse plaintiffs who have related claims against Defendant A sharing a common nucleus of operative fact can also be heard even if their claims do not satisfy the jurisdictional minimum
24
Q
Supplemental Jurisdiction NOT Permitted
A
These additional claims/parties can be brought into a diversity action only if the additional claims maintain complete diversity and exceed $75,000:
- Claims by plaintiffs against impleaded under Rule 14;
- Claims by plaintiffs against additional defendants joined as necessary parties under Rules 19 and 20;
- Claims by plaintiff intervenors under Rule 24;
- Claims by plaintiffs joined involuntarily under Rule 19
25
Removal Terminology
Removal moves a case from state court to federal court
Transfer moves case from one federal court to another federal court
No procedure for removal of a case from federal court to state court
26
Removal Jurisdiction
Removal is proper only if the case could have been brought originally in federal court.
Only defendants may remove.
ALL defendants must consent to removal.
Case had to have come within original jurisdiction of the federal court
27
Removal: Federal Question
Well-pleaded complain rule
If the well-pleaded complaint discloses that the plaintiff's claim is based on federal law, then the defendant ay remove to federal court
28
Removal: Diversity
Removal based on diversity jurisdiction is only proper if:
- There is complete diversity;
- The amount in controversy exceeds $75,000; and
- The action is brought in a state of which no defendant is a citizen.
Must remove within one-year of the commencement of the action in state court, unless the plaintiff has acted in bad faith to try to make the case non-removable
29
Removal Procedures
A notice of removal is filed in the federal court, copy to the state court
When the removal notice is filed, the case is removed automatically; the state court's jurisdiction ceases
30
Improper Removal
Plaintiff can file a petition for remand
Federal court holds hearing to determine whether removal is proper.
- If proper, remand denied
- If improper, remand is granted
31
Personal Jurisdiction
Concerns the power of the court to adjudicate the rights and liabilities of this defendant
32
Types of Personal Jurisdiction
In personam: against the person
In rem: against the thing
Quasi in rem: "sort of" against the thing
33
Constitutional Aspect of Personal Jurisdiction
Due process requires minimum contacts between the defendant and the forum state such that it is consistent with traditional notions of fair play and substantial justice to sue the defendants here.
Look for purposeful availment by the defendant of the protections of the forum's law
34
Waiver of Personal Jurisdiction
Can be waived by substantial participation on the merits before raising the objection.
Federal rules: defect must be raised at first opportunity or it is waived
35
In Personam Federal Exeptions
Federal Interpleader Act
Bulge Provision
36
Bulge Provision
Allows service anywhere within 100 miles of the federal courthouse, even if in another state.
Two situations:
- impleading third-party defendants under Rule 14; and
- joining necessary parties under Rule 19
37
General In Personam Jurisdiction
The defendant can be sued on any claim whatsoever, even if it is unrelated to the defendant's contacts with the forum state
38
Bases for General In Personam Jurisdiction
1. Physical Presence
2. Domicile
3. Consent
39
Specific In Personam Jurisdiction
Determined by a state's long-arm statute
Only applies when the dispute arises out of that contact with the forum
40
Common Bases for Specific In Personam Jurisdiction
- Any act or omission in the state causing injury to a person or property here or elsewhere
- Any act or omission outside the state causing injury to a person or property here, provided that the defendant conducted activities here or introduced goes into the flow of commerce
- An claim arising out of a contract to perform services in the state or to pay someone in the state to perform services elsewhere, or out of the actual performance
- Any claim arising out of a contract to ship goods to or from the state, or arising out of the shipment of such goods
- Any claim regarding local property
- Any action against a director or officer of a domestic corporation
- Any contract of insurance where the plaintiff is a resident of the state where the claim arose
41
In Rem Jurisdiction
Suit against any kind of property, real or personal, so long as the property is located in that state
42
Notice and Service of Process: General
Service of a summons on the defendant while the defendant is in the jurisdiction
Establishes the physical presence of the defendant in the jurisdiction and gives the defendant notice of the action
43
Federal Rules for Service of Process on an Individual
- Personal Delivery
- Leaving the summons at the defendant's dwelling or usual place of abode with a person of suitable age and discretion
- Delivery of the summons to an authorized agent
Persons in foreign countries: registered mail, return receipt requested
44
Special Rules for Service of Process
Infant: on infant and parent/guardian
Adjudicated Incompetent: on incompetent and guardian
Partnership: on general partner, attorney in fact, or authorized agent
Corporation: on officer, director, managing agent, or an agent appointed for receiving service of process
Non-resident motorists: on state official who forwards a copy to the out-of-state defendant
45
Service of Process for In Rem and Quasi-in-Rem Actions
Must make a diligent effort to locate all claimants to the property and serve them personally
If the claimants cannot be located, then notice by publication is permitted
46
Venue
Asks where among the courts in this judicial system is the appropriate place to hear the case
47
Venue Waiver
Failure to make timely objection results in waiver.
Under federal law, claim of improper venue must be made at the first opportunity or it is waived
- pre-trial motion to dismiss; or
- the answer
48
Venue General Rule
Federal venue is proper in a district:
- Where any defendant resides, if ALL defendants reside in the same state; or
- Where the claim arose
If neither of the above, any district where the defendant has been served
49
Where does a defendant reside?
(Venue purposes)
For individuals, residence means domicile
For business entities, resides in every district in which personal jurisdiction exists
50
Venue Special Provisions
For a case begun in state court and removed to federal court, venue is automatically proper in the federal district where the state court sits, even if that district would not have been proper originally
51
Transfer
Generally, transfer is only to a district with proper venue, unless all parties agree otherwise.
A case brought in a district with proper venue may be transferred for convenience to another district with proper venue
A case brought in a district without proper venue may be transferred to a district with proper venue or dismissed by the court
52
Transfer Choice of Words
If suit was brought in a district with proper venue and the case is transferred to another district, the law of the transferor forum controls.
If suit was brought in a district without proper venue and transferred to another district, the law of the transferree court controls
53
The Erie Doctrine
In a diversity case, a federal court applies state substantive law.
54
State Substantive Law
Includes
- Substantive rules on what must be proved to win a case and what defenses may be asserted
- Statute of limitations on state causes of actions
- The Burdens of Proof of state claims or defenses; and
- State Rules on choice of law
55
Federal Procedures
The FRCP always apply in federal court.
56
No Federal Statute or Rule on Point
Consult twin aims of Erie:
1. To avoid forum shopping; and
2. To avoid inequitable administration of justice
- If choice of procedure would be outcome determinative, federal court should apply state law to prevent forum shopping
- The role of the jury in federal court is entirely controlled by federal law
57
Federal Common Law
Overrides any inconsistent state or local law/rule
Made only when important federal interest not covered by a statute is encountered
e.g. state boundary disputes and claim preclusion
58
Determining Applicable State Law
Follow precedent from the highest state court
If no precedent, try to predict how the highest state court would rule
Give respectful attention to the decision of the lower state courts (not binding)
59
Commencement of Proceedings
Federal civil action: Begun by filing a complaint with the court clerk
For diversity actions, state law controls when action begins
60
Types of Pleadings
1. Complaint
2. Answer
3. Reply
61
Complaint
Used to state a claim for relief
62
Answer
Filed by the opposing party in response to the complaint
May contain responses to the allegations of the complaint, affirmative defenses, and counterclaims
63
Reply
Used by the plaintiff to answer a counterclaim
64
Claim for Relief
Recovery is not limited by the claim for relief as stated in the complaint, except for default judgments
Special Rule for Torts and Punitive Damages: If suing for punitive damages in excess of $10,000, must state "suing for tort or punitive damages in excess of $10,000"
65
Notice Pleading
A pleading need only detail the facts of the plaintiff's case or spell out the legal theory
All that is required is a short and plain statement of the claim
Must give fair notice of the pleader's claim
Recent decisions require only that the allegation in the complaint state a plausible case for recovery
66
Special Pleading
Alleged with particularity/specificity
- Fraud or mistake
- Special Damages
67
Motion to Dismiss
- Lack of SMJ
- Lack of PJ
- Improper Venue
- Failure to State a Claim Upon Which Relief Can Be Granted
- Failure to Join a Necessary Party
- Forum Non Conveniens
68
Motion for Judgment on the Pleadings
Applies when the pleadings agree on all the facts and only the law is in dispute
Any factual dispute, case for summary judgment
69
Motion for a More Definite Statement
Asks that a pleading be made more specific
Judges usually disfavor this motion
70
Motion to Strike
Can be used to delete from a pleading scandalous or prejudicial matters that are not relevant to the case at hand
Also used by the plaintiff to strike a legally invalid defense
71
Responses in an Answer
Failure to respond is an admission
Unless cured by amendment, the admission is binding in the action
72
Affirmative Defenses
Defenses which require notice
Common affirmative defenses:
- Assumption of Risk
- Contributory Negligence
- Duress
- Fraud
- Statute of Limitations
73
Answer Timing
Must ordinarily be served within 21 days of service of the pleading to which it responds
74
Amendments to Pleadings
As of Right: Once at any time within 21 days of service of pleading or within 21 days of defendant's response, if there is one
By Leave of Court: After the party has amended once, leave to amend must be sought from the court. Should be freely granted
75
Statute of Limitations and the Doctrine of Relation Back
In some circumstances, an amendment is deemed to relate back to the date the original pleading was filed
If the SOL has run, an amendment relates back to the date of the original IF it concerns the same conduct, transaction, or occurrence
Key here is notice (can't have the effect of "surprising" the other party)
76
Amendment to Add or Change a Party
Must:
- Concern the same conduct, transaction, or occurrence as the original pleading; and
- The party to be added must have known or had reason to know that the action should have been brought against that party but for the mistake.
77
Certification of Pleadings
Verification: most pleadings are NOT verified (not sworn to), nor do they have to be
Certification: Pleadings and all other documents - including all kinds and discovery requests - must be signed by the attorney of record
78
Signature by Attorney of Record
Certifies that:
- There is an appropriate legal and factual basis for filing:
- Attorney certifies that to the best of her knowledge after reasonable inquiry there is no improper purpose
- The legal contentions are warranted by existing law or by a non-frivolous argument for a change in the law; and
- The factual allegations have evidentiary support or are likely to have such support after discovery
79
Permissive Joinder of Parties
Joinder by plaintiffs
- Any number of plaintiffs may join if they assert claims arising out of the same transaction or occurrence AND there is a common question of law or fact
- Any number of defendants may be joined in the same action if the claims against them arise out of the same transaction or occurrence and there is a common question of law or fact
**In diversity cases, no party can be joined, either as a plaintiff or a defendant, whose presence would defeat complete diversity
80
Compulsory Joinder of Parties
Joinder by Defendants
Necessary party: a person whose participation in the lawsuit is necessary for a just adjudication
MUST be joined if feasible
Feasible if: 1) it would not deprive the court of SMJ and 2) the court can assert personal jurisdiction
If a necessary party cannot be joined, the court decides whether to continue without the necessary party or dismiss the suit.
81
Intervention
When an outsider voluntarily enters a lawsuit
Intervention as of right: may be had when the outsider claims an interest in the subject matter of the lawsuit that, as a practical matter, may be compromised by the disposition of the pending action.
Permissive intervention: may be allowed whenever there is a common question of law or fact between the intervenor's claim and the main claim
82
Interpleader: General
Used to solve the problem of competing claims to the same property
Stake: property at issue
Stakeholder: person holding the property
Claimants: persons claiming the property
83
Rule Interpleader
Authorized by Rule 22
Remedy available in a lawsuit otherwise within the court's jurisdiction
84
Statutory Interpleader
Federal Interpleader act
- Need only exceed $500
- Nationwide service or process
- Venue proper in any district where any claimant resides
- SMJ based on minimal diversity
85
Joinder of Claims
All claims may be joined as between the same plaintiff and the same defendant
Diversity: plaintiff can add up all claims agains the same defendant to exceed the jurisdictional minimum
Federal Question: If diversity is lacking for additional state-law claims, additional state law claims can be joined only if they are covered by supplemental jurisdiction
86
Compulsory Counterclaims
Compulsory if it arises out of the same transaction or occurrence
Lost if not pleaded
Covered by supplemental jurisdictions
SOL: filing of the original complaint tolls the SOL for the original claim and any compulsory counterclaims
87
Permissive Counterclaims
Counterclaims that do not arise out of the same transaction or occurrence
Requires an independent jurisdictional base
May be pleaded now or later
SOL: permissive counterclaim must be timely as of the date it is filed or it's time-barred
88
Cross-Claims
Claim asserted agains a co-party
Must arise out of the same transaction or occurrence
Never compulsary
89
Impleader
Device by which the defendant brings into the suit someone who is or may be liable to the defendant for all or part of the plaintiff's claim against him
Impleaded party: Third-party defendant
Original defendant: both a defendant and a third-party plaintiff
Impleader comes within court's supplemental jurisdiction
- citizenship does not matter
- amount of claim does not matter
- extends to claims by the defendant against a third-party defendant
Supplemental jurisdiction does NOT extend to claims by the original plaintiff against the impleaded third-party defendant
90
Class Action Prerequisites
- Numerousness: too many parties to be joined conventionally
- Common questions of law or fact
- Typicality of claims by the class representatives
- Adequacy of representation
91
Class Action Dismissal or Compromise
Requires judicial approval
92
Class Action Diversity Jurisdiction
The named representatives must be completely diverse from the defendant's and at least one plaintiff has a claim worth $75,000
93
Class Action Fairness Act
Allows very large class actions involving XXX members with more than $5 million at stake
Minimal diversity
94
Mandatory Disclosure Stages
1. Initial Disclosures
2. Disclosure of Expert Witnesses
3. Pretrial Disclosures
95
Initial Disclosures
- Names and addresses of persons with potentially discoverable information
- Copies or descriptions of relevant documents or things
- Computation of damages claimed
- Applicable insurance agreement(s)
96
Disclosure of Expert Witnesses
- Names of expert witnesses who will be called at trial
- Qualifications, publications, opinions, information on which they will base their opinions, other cases in which they have testified, and compensation
97
Pretrial Disclosures
Thirty days before trial
- List of witnesses and exhibits
- Any objects must be made within 14 days after disclosure or they are waived unless excused by the court for good cause
98
Scope of Discovery
Relevance: can discover anything that might be admissible at trial OR that might lead to something that might be admissible at trial
NOT limited to admissible evidence
99
Discovery Proportionality
Discovery is limited to matters proportional to the needs of the case
Courts are to consider the importance of the issues, the amount at stake, the parties' resources and access to information, the value of discovery in the case, and, whether the burden or expense of discovery outweighs its likely benefit
100
Exceptions to Discovery
1. Evidentiary Privilege
| 2. Work-Product Rule
101
Evidentiary Privilege
Anything covered by an evidentiary privilege is NOT discoverable
102
Work Product Rule
Attorney work product rule protects:
- Documents and things (not information) prepared in anticipation of litigation by or for another party or her representative
- Creates a qualified immunity from discovery that can be overcome if the party seeking discovery shows need and that the information cannot be obtained elsewhere
103
Experts
Distinction between those who will be called to testify and those who will not
Going to testify: other side has to prepare for cross-examination
Not going to testify: no discovery absent exceptional circumstances
104
Protective Orders
Court orders to compel or restrain discovery for good cause shown
105
Discovery Devices
1. Oral Deposition
2. Written Deposition
3. Interrogatories
4. Discovery and Inspection of Documents and Land
5. Physical and Mental Examinations
6. Request for Admission
106
Oral Deposition
- Under oath
- Limited to 10 unless court allows more
- Each limited to 1 day of 7 hours, unless court allows more
- Any kind of notice suffices for the deposition of a party
- Deposition of witness requires a subpoena
- Can be taken at any time after the party has made mandatory disclosures
- May be taken before any notary public who is not otherwise disqualified
107
Subpoena Duces Tecum
Requires the deponent to bring specified documents or things
108
Written Deposition
Questions asked in writing are delivered to an officer who asks orally the questions and the witnesses answers orally under oath
Rarely used
109
Interrogatories
Questions asked in writing to be answered under oath in writing
May only be used against a party
Limited to 25 interrogatories, unless the court allows more
Responses required within 30 days
110
Discovery and Inspection of Documents and Land
- Called a "Request to Produce and Permit Inspection"
- Applies only to documents, things, and land under the control of a party
- The thing to be produced and inspected must be described with particularity
- Response due within 30 days
111
Physical and Mental Examinations
Available only against a party and only permitted when the party's physical or mental condition is in controversy
Only for good cause shown
112
Use of Depositions
- Discoverability does not equal admissibility
- Deposition of an adverse party is admissible as an admission agains interest
- Deposition of a witness may be used to impeach
- Deposition of a witness who does not testify can be used if the witness is dead or beyond the court's subpoena power or otherwise
Can also be used if the witness is more than 100 miles from the place of trial
113
Enforcement Sanctions
The court can immediately impose sanctions in three instances of complete default:
1) Failure to attend one's own deposition;
2) Failure to respond to interrogatories; and
3) Failure to respond to a request for documents or thing
114
Electronically Stored Information
- Should be preserved
- If lost through the unreasonable conduct of a party, the court may order measures to cure the prejudice to the other party
- If the material was destroyed with the intent to prejudice the other party, the court may instruct the jury that it must presume the information was unfavorable, or even order the end of the litigation
115
Pre-Trial Conference
Must be attended by the attorneys who will conduct the trial
Must file a pre-trial statement detailing:
- Claims and Defenses
- Itemization of Damages
- Requests for Stipulation and Admissions
- List of all witnesses and exhibits
Failure to comply usually means that the attorney pays the costs and the other side's attorney's fees
116
Termination Without Trial
- Judgment on the pleadings (rare)
- Default Judgment;
- Voluntary dismissal (without prejudice);
- Involuntary dismissal (with prejudice);
- Summary judgment
117
Voluntary Dismissal
Without Prejudice: Plaintiff whose claim has been dismissed can bring that claim again in a new lawsuit
Plaintiff has the right to voluntary dismissal ONCE at any time prior to defendant serving an Answer or MSJ
After, must seek a dismissal without prejudice on leave of court
118
Involuntary Dismissal
```
Involuntary Dismissal for:
- lack of jurisdiction
- improper venue
- failure to join a necessary party
Without prejudice
```
All other cases dismissal is with prejudice (adjudication on the merits)
119
Summary Judgment
There is no genuine dispute as to any material fact and the moving party is entitle to judgment as a matter of law
```
Must be supported or opposed by particular materials in the record, such as:
- Depositions
- Answers to Interrogatories
- Affidavits
- Stipulations
(must generally be sword statements)
```
120
Right to Jury Trial
7th Amendment right to trial by jury for legal issues (damages), not for equity
If legal and equity issues overlap in one lawsuit, try the legal issues forst
121
Demand for Trial by Jury
Must be made not later than 14 days after service of the answer
122
Jury Selection
Minimum of 6; Maximum of 12
All must participate in verdict unless dismissed for good cause
Each litigant gets three peremptory challenges (no need to explain/have good reason, but cannot be used for racial or gender reasons
123
Bench Trial
Judge is required to make findings of fact and state conclusions of law
124
Jury Instructions
- Parties may request specific instructions
- Judge must inform the parties of his actions on those requirements and the court's proposed instructions before final argument
- Courts must provide an opportunity to object to proposed instructions (objections must be on the record)
- Any objection to the instructions must be made before the jury retires
125
Motion for Judgment as a Matter of Law
Formerly Directed Verdict
Viewing the evidence in the light most favorable to the opposing party, the evidence cannot support a contrary verdict and the moving party is therefore entitled to judgment as a matter of law
126
Renewed Motion for Judgment as a Matter of Law
formerly J.N.O.V.
A motion for JMOL made at the close of all the evidence and denied by the court may be renewed after the verdict
- Prior motion is a condition precedent
Standard is the same: the evidence cannot support the jury's verdict and the moving party is therefore entitled to a judgment as a matter of law
127
Motions to Terminate Without Trial
Motion to dismiss for failure to state a claim, motion for judgment on the pleadings, JMOL made before the jury retires are waived if the moving party proceeds with trial once motions are denied
128
New Trial
Usually made with a renewed motion for judgment as a matter of law, but very different
Grounds for new trial:
- Errors during trial that rendered the judgment unfair;
- Newly discovered evidence
- Prejudicial misconduct by a lawyer, party, or juror
Court must specify the reasons for granting a new trial in its order
129
Final Judgment Rule
Ordinarily, appeals lie only from final judgments
Partial final judgment: the court may, by express designation, enter a final judgment on some claims (such a judgment is immediately appealable)
Notice of appeal must be filed in the trial court within 30 days of entry of judgment
130
Interlocutory Orders Immediately Appealable as of Right
- Injunctions
| - Any order that changes or affects possession of property
131
Discretionary Interlocutory Appeal
Any interlocutory order is appealable on leave of courts
- Both the trial and appellate courts must agree to allow the appeal
The trial court can issue a certificate for interlocutory appeal stating:
- that it involves a controlling issue of law; and
- that the immediate appeal may materially advance termination of the litigation
132
Collateral-Order Doctine
Authorizes immediate appeal of orders separable from and collateral to the main suit and too important to deny immediate review
Most likely case: the denial of a motion to dismiss for forum non conveniens
133
Mandamus
Provides for immediate appellate review of an order that is an abuse of authority
134
Class Action Appeals
Appellate courts have discretion to hear interlocutory appeals from orders certifying or refusing to certify a class action
135
Standards of Review: Questions of Law
Appellate review is de novo (whether trial got the law right)
136
Standards of Review: Findings of Fact
Jury Verdicts: must be affirmed if supported by substantial evidence
Judge's findings of fact: must be affirmed unless clearly erroneous
137
Standards of Review: Matters of Discretion
Abuse of discretion
Any reasonable decision will be upheld
138
Full Faith and Credit
Courts in the United states, both state and federal, must give full faith and credit to judgment rendered by courts of other states, provided that the rendering court had jurisdiction
139
Preclusion Doctrines
1. Claim preclusion (res judicata)
| 2. Issue preclusion (collateral estoppel)
140
Claim Preclusion Rule
A final judgment on the merits of a claim bars re-litigation of that claim by the same parties or those in privity with the parties
Prevents re-litigation of every claim that was raised or should have been raised in the first suit
141
Claim Preclusion Requirements
1. Final judgment on the merits in the first suit;
2. Second suit between the same parties or their successors in interest; and
3. The second suit involves the same claim or cause of action
142
Examples of Succors in Interest
- The assignor and assignee of a claim;
- A decedent and the executor of the estate; and
- The executor of an estate and persons who claim under the will
143
Issue Preclusion Requirements
1. The same issue of fact must arise in two suits;
2. That issue must have been actually and necessarily decided in the first suit; and
3. The party to be precluded must have been a party to the first suit
