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Themis Handouts > Civil Procedure > Flashcards

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

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2
Q

Pleading SMJ

A

Must be affirmatively pleaded in every case

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3
Q

Waiver of SMJ

A

Lack of SMJ cannot be waived by failing to object or by affirmative consent

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4
Q

Objection to SMJ

A

Can be raised by any party at any time

Can be brought for the first time on appeal

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5
Q

Federal Question Jurisdiction

A

Exists for a claim arising under federal law

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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

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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

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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

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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
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10
Q

Time for Determination of Diversity

A

Must exist when the complaint is filed

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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

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12
Q

Citizenship of Aliens

A

Diversity jurisdiction exists for controversies between a citizen of a state and a citizen of a foreign country

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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
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14
Q

Class Action Citizenship

A

Citizenship of the named (representative) parties counts

Class members not named may join without regard to citizenship

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15
Q

Citizenship of Corporations

A

Citizen of:

  1. The state, states, or countries in which it is incorporated; and
  2. The state or country of its principal place of business (“nerve center”)
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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

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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

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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)

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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

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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:

  1. Arise out of the same transaction or occurrence; and
  2. Complete diversity is maintained
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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

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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

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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

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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
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25
Q

Removal Terminology

A

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

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26
Q

Removal Jurisdiction

A

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

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27
Q

Removal: Federal Question

A

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

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28
Q

Removal: Diversity

A

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

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29
Q

Removal Procedures

A

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

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30
Q

Improper Removal

A

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
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31
Q

Personal Jurisdiction

A

Concerns the power of the court to adjudicate the rights and liabilities of this defendant

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32
Q

Types of Personal Jurisdiction

A

In personam: against the person

In rem: against the thing

Quasi in rem: “sort of” against the thing

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33
Q

Constitutional Aspect of Personal Jurisdiction

A

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

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34
Q

Waiver of Personal Jurisdiction

A

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

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35
Q

In Personam Federal Exeptions

A

Federal Interpleader Act

Bulge Provision

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36
Q

Bulge Provision

A

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
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37
Q

General In Personam Jurisdiction

A

The defendant can be sued on any claim whatsoever, even if it is unrelated to the defendant’s contacts with the forum state

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38
Q

Bases for General In Personam Jurisdiction

A
  1. Physical Presence
  2. Domicile
  3. Consent
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39
Q

Specific In Personam Jurisdiction

A

Determined by a state’s long-arm statute

Only applies when the dispute arises out of that contact with the forum

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40
Q

Common Bases for Specific In Personam Jurisdiction

A
  • 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
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41
Q

In Rem Jurisdiction

A

Suit against any kind of property, real or personal, so long as the property is located in that state

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42
Q

Notice and Service of Process: General

A

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

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43
Q

Federal Rules for Service of Process on an Individual

A
  • 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

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44
Q

Special Rules for Service of Process

A

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

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45
Q

Service of Process for In Rem and Quasi-in-Rem Actions

A

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

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46
Q

Venue

A

Asks where among the courts in this judicial system is the appropriate place to hear the case

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47
Q

Venue Waiver

A

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
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48
Q

Venue General Rule

A

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

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49
Q

Where does a defendant reside?

A

(Venue purposes)

For individuals, residence means domicile

For business entities, resides in every district in which personal jurisdiction exists

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50
Q

Venue Special Provisions

A

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

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51
Q

Transfer

A

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

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52
Q

Transfer Choice of Words

A

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

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53
Q

The Erie Doctrine

A

In a diversity case, a federal court applies state substantive law.

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54
Q

State Substantive Law

A

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
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55
Q

Federal Procedures

A

The FRCP always apply in federal court.

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56
Q

No Federal Statute or Rule on Point

A

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
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57
Q

Federal Common Law

A

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

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58
Q

Determining Applicable State Law

A

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
Q

Commencement of Proceedings

A

Federal civil action: Begun by filing a complaint with the court clerk

For diversity actions, state law controls when action begins

60
Q

Types of Pleadings

A
  1. Complaint
  2. Answer
  3. Reply
61
Q

Complaint

A

Used to state a claim for relief

62
Q

Answer

A

Filed by the opposing party in response to the complaint

May contain responses to the allegations of the complaint, affirmative defenses, and counterclaims

63
Q

Reply

A

Used by the plaintiff to answer a counterclaim

64
Q

Claim for Relief

A

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
Q

Notice Pleading

A

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
Q

Special Pleading

A

Alleged with particularity/specificity

  • Fraud or mistake
  • Special Damages
67
Q

Motion to Dismiss

A
  • 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
Q

Motion for Judgment on the Pleadings

A

Applies when the pleadings agree on all the facts and only the law is in dispute

Any factual dispute, case for summary judgment

69
Q

Motion for a More Definite Statement

A

Asks that a pleading be made more specific

Judges usually disfavor this motion

70
Q

Motion to Strike

A

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
Q

Responses in an Answer

A

Failure to respond is an admission

Unless cured by amendment, the admission is binding in the action

72
Q

Affirmative Defenses

A

Defenses which require notice

Common affirmative defenses:

  • Assumption of Risk
  • Contributory Negligence
  • Duress
  • Fraud
  • Statute of Limitations
73
Q

Answer Timing

A

Must ordinarily be served within 21 days of service of the pleading to which it responds

74
Q

Amendments to Pleadings

A

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
Q

Statute of Limitations and the Doctrine of Relation Back

A

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
Q

Amendment to Add or Change a Party

A

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
Q

Certification of Pleadings

A

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
Q

Signature by Attorney of Record

A

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
Q

Permissive Joinder of Parties

A

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
Q

Compulsory Joinder of Parties

A

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
Q

Intervention

A

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
Q

Interpleader: General

A

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
Q

Rule Interpleader

A

Authorized by Rule 22

Remedy available in a lawsuit otherwise within the court’s jurisdiction

84
Q

Statutory Interpleader

A

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
Q

Joinder of Claims

A

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
Q

Compulsory Counterclaims

A

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
Q

Permissive Counterclaims

A

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
Q

Cross-Claims

A

Claim asserted agains a co-party

Must arise out of the same transaction or occurrence

Never compulsary

89
Q

Impleader

A

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
Q

Class Action Prerequisites

A
  • 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
Q

Class Action Dismissal or Compromise

A

Requires judicial approval

92
Q

Class Action Diversity Jurisdiction

A

The named representatives must be completely diverse from the defendant’s and at least one plaintiff has a claim worth $75,000

93
Q

Class Action Fairness Act

A

Allows very large class actions involving XXX members with more than $5 million at stake

Minimal diversity

94
Q

Mandatory Disclosure Stages

A
  1. Initial Disclosures
  2. Disclosure of Expert Witnesses
  3. Pretrial Disclosures
95
Q

Initial Disclosures

A
  • 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
Q

Disclosure of Expert Witnesses

A
  • 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
Q

Pretrial Disclosures

A

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
Q

Scope of Discovery

A

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
Q

Discovery Proportionality

A

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
Q

Exceptions to Discovery

A
  1. Evidentiary Privilege

2. Work-Product Rule

101
Q

Evidentiary Privilege

A

Anything covered by an evidentiary privilege is NOT discoverable

102
Q

Work Product Rule

A

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
Q

Experts

A

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
Q

Protective Orders

A

Court orders to compel or restrain discovery for good cause shown

105
Q

Discovery Devices

A
  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
Q

Oral Deposition

A
  • 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
Q

Subpoena Duces Tecum

A

Requires the deponent to bring specified documents or things

108
Q

Written Deposition

A

Questions asked in writing are delivered to an officer who asks orally the questions and the witnesses answers orally under oath

Rarely used

109
Q

Interrogatories

A

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
Q

Discovery and Inspection of Documents and Land

A
  • 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
Q

Physical and Mental Examinations

A

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
Q

Use of Depositions

A
  • 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
Q

Enforcement Sanctions

A

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
Q

Electronically Stored Information

A
  • 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
Q

Pre-Trial Conference

A

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
Q

Termination Without Trial

A
  • Judgment on the pleadings (rare)
  • Default Judgment;
  • Voluntary dismissal (without prejudice);
  • Involuntary dismissal (with prejudice);
  • Summary judgment
117
Q

Voluntary Dismissal

A

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
Q

Involuntary Dismissal

A 
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
Q

Summary Judgment

A

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
Q

Right to Jury Trial

A

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
Q

Demand for Trial by Jury

A

Must be made not later than 14 days after service of the answer

122
Q

Jury Selection

A

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
Q

Bench Trial

A

Judge is required to make findings of fact and state conclusions of law

124
Q

Jury Instructions

A
  • 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
Q

Motion for Judgment as a Matter of Law

A

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
Q

Renewed Motion for Judgment as a Matter of Law

A

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
Q

Motions to Terminate Without Trial

A

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
Q

New Trial

A

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
Q

Final Judgment Rule

A

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
Q

Interlocutory Orders Immediately Appealable as of Right

A
  • Injunctions

- Any order that changes or affects possession of property

131
Q

Discretionary Interlocutory Appeal

A

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
Q

Collateral-Order Doctine

A

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
Q

Mandamus

A

Provides for immediate appellate review of an order that is an abuse of authority

134
Q

Class Action Appeals

A

Appellate courts have discretion to hear interlocutory appeals from orders certifying or refusing to certify a class action

135
Q

Standards of Review: Questions of Law

A

Appellate review is de novo (whether trial got the law right)

136
Q

Standards of Review: Findings of Fact

A

Jury Verdicts: must be affirmed if supported by substantial evidence

Judge’s findings of fact: must be affirmed unless clearly erroneous

137
Q

Standards of Review: Matters of Discretion

A

Abuse of discretion

Any reasonable decision will be upheld

138
Q

Full Faith and Credit

A

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
Q

Preclusion Doctrines

A
  1. Claim preclusion (res judicata)

2. Issue preclusion (collateral estoppel)

140
Q

Claim Preclusion Rule

A

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
Q

Claim Preclusion Requirements

A
  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
Q

Examples of Succors in Interest

A
  • 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
Q

Issue Preclusion Requirements

A
  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

Themis Handouts (8 decks)

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