Civil Procedure - Appeals and Erie Flashcards
To appeal a motion, you must have
File a notice of appeal within time limit
Grounds for appeal
Has to be a question of law
Error has to make a difference
Only final judgements may be appealed unless it is a Collateral order
How long do you have to file a notice of appeal
within 30 days of judgements
For grounds for an appeal you must have
stated an objection at trial or its waived
state grounds
Appellate court will only look to
questions of law than fact
When will a appellate court look to questions of fact
when it was clearly erroneous
When will the appellate court not hear the appeal
when the error is harmless
What is an interlocutory order
order given before the final judgement
Are interlocutory order appealable
No unless it is considered a collateral order
Collateral order def
Determines a right collateral to the main issues and the delay would significantly impair that right
Elements for collateral order
Conclusively determines disputed question
Resolves important issues separate from merits
Delay would cause irreparable damage
What is considered not a final judgement and thus not appealable
Decision on lack of jdx
Improper venue
Failure to join a indispensable party
If there are multiple claims in a lawsuit and the judge enters an order on one of these claims it will be presumed not a final judgement and thus appealable unless
the courts finds there is no reason for delay and enters a final judgement on that particular issue
When is a denial of summary judgement appealable
when the trial is over
Is a order for a new trial appealable and why
no bc not a final judgement
Can the judge issue a partial final judgement
Not preferred because they do not like peace meal appeals
When will the court choose not to issue a partial final judgement
Reducing the amount of liability
Showing of hardship
Potential undue burden on the appellate court if it heard the case twice
When will the court, other than a collateral order, allow a appeal before a final judgement
granting/denying injunctions before all decisions r decided
Certification or denying of a class action
A writ of mandus is
review of the record shows that
Appeal would be insufficient to correct the problem
AND
Trial courts actions constitute a serious abuse of power in need of immidate rectification
Standards of review - de novo is appropriate when
issue of law
Example of denovo
reducing punitive damages award on the grounds that it is consitutionally excessive
Standards of review - abuse of discretion
something the court does where there is an Issue of relevancy, prejudice, court decision, → abuse of discretion
Standards of review - clearly erroneous
issues of facts
Erie doctrine applies when
they make you choose between state and federal law in a diversity case
When do you apply state substantive law in erie
Apply substantive state law UNLESS there is a federal procedure rule on point
Proper venue in erie means you apply
Federal law because its procedural
Statute of limitations you apply
State substantive law
What happens if you have 2 states and you have to chose between one or the other in Erie
apply the law where the federal court states
TRO does not need prior notice to the restraining party if
Appears from the facts that immediate irreparable harm will result
Expires than the time stated in the order and cannot exceed 14 days
For a prelim injunction there must be
notice and a hearing before the injunction is given
A party seeking a prelim injunction must show
If injunction is no tgranted Irreparable injury will occur
Likely to suceed on the merits of the case
The harm to the moving party from not granting the injunction will out weighs any harm if it is granted
Unlike a TRO a prelim lasts
longer than 14 days
What is the standard of review the appellate court will apply when overturning a jury’s finding of fact
if there is a complete lack of proof, such that no reasonable jury could decide the same way
The court may convert the partial summary-judgment order into a final, appealable order by determining that
that there is no just reason to delay an appeal.
