Civil Procedure Flashcards
Filing of a NOTICE OF APPEAL
30 days of judgement, must make obj. during trial or else waived
Harmless Error Rule
if errors do not make a difference then no appeal
Final Judgement Rule
cannot have an appeal unless final Judgement was made, all issued were finally determined by the court
Collateral Order Exception
issue may be decided if
a. It resolves the issue that is completely separate from the merits of the action
b. Any delay would cause too much damage
Injunctions
can be appeal the granted or denying an injunction before all issues decided
Standard of Review - Issue of Fact
Clearly erroneous standard
Standard of Review - Issue of Law
De Novo Review
Standard of Review - Relevancy, Prejudice, Court Orders
abuse of discretion
Federal Court Diversity
state substantive, federal procedural
Choice of Laws - Statute of Limitations
State substantive
Choice of Law - Venue Issue
federal procedure applies
Choice of Law - 2 state conflicting laws
Apply law where federal court sits
Erroneous Jury Verdicts
(1) to approve an appropriate judgment according to the answers; notwithstanding the verdict; (2) direct the jury to further consider its answers and verdict; or (3) order a new trial.
Default Judgement
one party fails to plead
Voluntary Dismissal
P voluntary dismisses his or her own action
i. Once w/o prejudice
ii. Before D answers/Summary Judgement
iii. After D answers, need court approval
Involuntary Dismissal
court will dismiss by order
i. Failure to prosecute
ii. Failure to obey a court order
iii. Lack of venue/jurisdiction
Prejudice exceptions of involuntary dismissal
a. Lack of Jurisdiction
b. Venue
c. Insufficient service of process
d. Failure to join a party
Grounds to Dismiss a Judge
(1) Appearance of Bias (2) Actual Bias
Appearance of Bias
parties MAY waive
Actual Judicial Bias
Parties MAY NOT waive
- Judge has personal knowledge – recused
- Judge was a lawyer – recused
- Judge or family has financial issues - recused
- Expressed opinion on merits – recused
Red Judicata/Claim Preclusion
can claim or cause of action be relitigated
1. Generally no if same parties, same claim, decided on the MERITS, based on same transaction
Claim Preclusion - Merger Doctrine
P wins, claim is merged into the judgment and cannot sue same cause of action again
i. If P loses = P is Barred from bringing it up again, cannot split via damages
Collateral Estoppel/Issue Preclusion
(1) must have SAME issues, (2) actually litigated and DECIDED, (3) necessary to judgment
Collateral Estoppel - Not Litigated Issues
resolved in settlement or Default Judgement
Collateral Estoppel - Mutuality in Issue Preclusion
original parties no longer applies, now look to privity
Collateral Estoppel - Defense Use of Collateral Estoppel
allowed generally, nonparty in 1st case is not D in 2nd case
Collateral Estoppel - Offense Use of Collateral Estoppel
not allowed generally
Full Faith and Credit
one state must give full legal effect in another state
12b Motion to Dismiss SMJ
pre-answer motion - lack of SMJ – can be raised ANYTIME,
Waived Motion to Dismiss
Pre-answer motion - waived if not in Motion or Answer
- Personal Jurisdiction
- Improper Venue
- Insufficient Process
Motion to Dismiss for Failure to Join a PArty
pre-answer motion - raise BEFORE or AT TRIAL
12b6 Motion to Dismiss Based on Failure to State Claim Upon Relief
even if stacks true, no recovery, dismissed with prejudice, raised BEFORE or AT TRIAL
Motion to Strike
pre-answer motion - made w/21 days of service, strike Redundant, Immaterial info
Motion for More Definitive Statement
pre-answer motion, pleading is vague or ambiguous
Summary Judgement
no genuine dispute of material fact, can be made up to 30 days after discovery, if denied NOT appealable
Partial Summary Judgment
on a particular issue
Judgement as a Matter of Law/Directed Verdict
D makes motion after D=P’s case or either party after evidence
Judgement as a Matter of Law/Directed Verdict - Standard
whether a reasonable jury would have a legally sufficient evidence to find for the party
Renewed Judgement as a Matter of Law
(1) make 1st motion so you can bring the RENEWED motion (2) 28 days after verdict (3) same standard as JMOL
Motion for relief of judgement
clerical error or mistake, judge may correct mistake
Motion for new trial
- granted if error would change result of trial
- judge acted erroneous
- jury, party, witness, or lawyer misconduct
- verdict is against the clear weight of the evidence
Remitter
too much money, new trial ordered unless party accepts reduction of damages, no appeal
Additur
to add more money, NOT allowed in federal court
Motion for partially new trial
OK
Motion for new trial when new info
(1) if evidence discovered after trial, (2) couldn’t find during or before trial but tried, (3) material
7th Amendment
right to a jury trial
Amount of Jurors
Must have at least 6 not more than 12 jurors
Verdict
must be unanimous
Demand for Jury trial
must be made within 14 days of last pleading
Equitable Relief
no right to a jury trial
Voire Dire
juror can be dismissed for cause
For Cause Dismissal
(1) actual bias (2) possible bias (3) felony conviction (4) no limit to amount of strikes
Peemptory Challenge
3 strikes
Jury Instructions
must object before jury retires or will be lost on appeal
h. Jury make take anything into evidence to the jury room, no science experiments
Grounds for new Trial
(1) outside information brought into jury room (2) juror lies in questioning in voir dire
Complaint
filing of complaint with the court commences statute of limitations
- Service – w/90 days
- Elements: (1) Short and plain statement with grounds of jurisdiction (2) Statement of the claim (3) Demand for Relief
- Demand for Special Relief – (1) Fraud (2) Special Damages, must be pled with specificity
Answer
signed by Lawyer, whatever is not denied is admitted, 21 days
Affirmative Defenses
(1) contributory negligence (2) SoF, (3) SoL (4) illegality, (5) duress
Amendment of Complaint
a right as long as within 21 days after service of original pleading
1. Leave of Court Amendment – allowed when justice so requires
Relation Back Doctrine
related back if claim or defense arose out of the same conduct, transaction or occurrence of original pleading
Relation Back Regardings Parties
(1) arose from same T/O (2) w/90 days of filing complaint (3) new party knew or should have been brought but for mistake of ID
Rule 11
when a lawyer signs a pleading, the lawyer says basis for claim;
i. Ensures legal arguments are warranted by existing law
ii. Allegations have evidentiary support
iii. Not presented for improper purpose
Compulsory Counterclaim
(1) same T/O (2) Assert it or lose it
Permissive Counterclaim
(1) D may bring claim not T/O (2) needs independent JD
Permissive Joinder
multiple Ps can join together if claim (1) same T/O and (2) question of law or fact is in common
Compulsory Joinder
party must be joined if it is unfair to litigate w/o them
Compulsory Joinder - Necessary Party
impaired interest by not including
a. If joining would destroy diversity, then case can still go forward
Compulsory Joinder - Indispensable Party
won’t join will prejudice
a. If joining would destroy diversity, case will be dismissed
Adding Claims
may add as many claims as long as new claims have SMJ
Class Actions
(1) size (2) common question of law or fact (3) typical of class (4) fair representation
B1 Class Action
impairment of interests of class members, members may not opt out, notice is discretion of court
B2 Class Action
injunctive relief is sought, members may not opt out, notice is discretion of court
B3 Class Action
common question of all class members, may opt out, all members must give notice
Diversity Class Action
(1) citizenship of representative is the one that counts, (2) ok as long as 1 named member has claim over $75,000, (3) if entire claim is over $5 million then okay if not one person have over $75
Intervention
someone not in suit wants to come in
Intervention as of Right
(1) interest in property of litigation (2) would impair protection of interest if not involved (3) NO court permission needed
Permissive Intervention
(1) claim/defense is common question of law or fact to the suit (2) court permission is required
Interpleader
1 party owes money to 2 or more people, make then fight over damages
Statutory Interpleader
(1) nationwide service of process is allowed (2) as long as any two claims are diverse (3) min of $500 claim (3) person deposits money/property in Court or Bond
Rule Interpleader
(1) complete diversity (2) no nationwide service (3) over $75,000 (4) NOT required to deposit money/property
3rd Party Interpleader
D who believes 3P is liable for part or all of claim, D can implead them into claim AKA contribution/indemnity
Cross Claims
one party sues co-party (1) same T/O (2) actual damages
What is discoverable?
(1) not privileges (2) relevant (3) proportional to Needs of the Case
Work Product
Immune from discovery, anything prepared by counsel for trial, also people working for lawyer
When is work product discoverable?
(1) Substantial need (2) cannot obtain w/o UNDUE HARDSHIP
Experts for trial
must give a list IDing expert, expert must provide a report with data and compensation
Experts not testifying
discoverable only in EXCEPTIONAL CIRCUMSTANCES when impractical
Deposition
(1) party of non-party (2) written or oral (3) limit 10 depos, cannot depo same person more than once w/o court permission
Deposition of Non-party
subpoena
Deposition of Party
NO subpoena, can get sanctions
Interrogatory
(1) only to a PARTY (2) written/answered in writing (3) limit – 25
Request for Admission
written request, conclusively established
Request to Produce
documents in the other side’s possession, control custody
Physical/Mental Exam
if condition is subject of controversy (10 court order (2) good cause
Objection to Request
Info not relevant
Protective Order to Stop Discovery
for embarrassment, harassment, undue burden
xv. Motion to Compel – one party not complying
Conference of Parties
(1) court MUST have conference (2) parties MUST submit Discovery plan
Scheduling Conference
(1) court MUST have conference (2) issue order w/ 90 days of filing (3) CANNOT be modified unless GOOD CAUSE
Final Pre-trial Conference
(1) MAY hold it (2) if exists, court MUST issue Pre-trial orders (2) ONLY modified to prevent MANIFEST INJUSTICE
Temporary Restraining Order
(1) no notice (2) IMMEDIATE IRREPARABLE HARM (3) expires in no more than 14 days
Preliminary Injunction
(1) notice and hearing (2) irreparable injury (3) more than 14 days
Subject Matter Jurisdiction
(1) diversity or (2) federal question
Diversity
(1) parties are citizens of different states AND (2) over $75,000
Domicile
permanent home and intent to stay there
Corporations
(1)domicile in principal place of business and (2) state where incorporated
Well-pleaded complaint rule
federal law must be obvious in complaint, federal defense =/= good enough for federal question
Supplemental Jurisdiction/SJ
normally won’t be fed court, but court let you add claims and parties MUST arise from common nucleus of operative fact
If FQ SJ
common nucleus of facts
If Diversity SJ
common nucleus of facts (1) compulsory counterclaim (2) joinder of parties in compulsory counterclaim (3) cross claims (4) impleader of 3rd party Ds
IF D trying to add SJ claim/party
allowed
If P trying to add SJ claim/party
not allowed
SJ not allowed
(1) original P vs. 3rd party D (2) compulsory joinder (3) joinder of Ds (4) intervention, P’s trying to intervene
In personam Jurisdiction
domicile, living, present
Long Arm Statute
law allowing nonresident to be brought into state to be sued
Minimum Contacts
enough contacts so D could REASONABLY anticipate to be brought into court w/p offending traditional notions of fair play and substantial justice
Service of Process
(1) limited to state where court sits or (2) long arm statute
100 miles budge system
okay if w/100 miles of fed courthouse where suit is sitting for additional parties for current case, 3PD and indispensable parties
Who can serve process?
(1) anyone not a party (2) over 18 years old
Indirect service
yes can leave with (1) over 18 (2) likely to give to D
In-Rem jurisdiction
getting PJ over property itself
Quasi-in Rem Jurisdiction
trying to get JD to satisfy judgement against individual
Removal
proper if could have been brought in fed court
Who may remove?
ONLY DEFENDANT can remove, if multiple D All must join to remove
Timing of Removal
30 days of service of complaint
Diversity Removal
(1) no removal is allowed if D is a citizen of forum state (2) not allowed over 1 year after beginning of action
Venue
(1) any D resides, and all D reside in that state (2) substantial part of events took place (3) D is reachable – has PJ
Corporation Venue
any district where principal place of business or state of incorporation
Forum Non Convensce
yes can be transferred if venue in 1st place but law of original state applies
