Civil Procedure - Barbri Flashcards
What are the elements of claim preclusion?
- the earlier judgment must be a valid, final judgment on the merits;
- the cases must be brought by the same claimant against the same defendant; and
- the same cause of action must be involved in the later suit
What is a final order for the purposes of claim preclusion?
One that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties but as to all causes of action involved.
When can offensive issue preclusion be raised?
- the prior action ended in a final judgment;
- the issue has been actually litigated and determined;
- the issue was essential to the judgment;
- the party to be bound by the prior judgment was a party to the prior action or in privity with a party to the prior action; and
- the party asserting issue preclusion was a party to (or in privity with a party to the prior action) or, if not, is asserting issue preclusion under circumstances that are not unfair or inequitable.
How do courts determine fairness in terms of offensive issue preclusion?
Courts typically consider whether:
- the defendant had an adequate incentive to litigate vigorously in the first action;
- the party trying to assert issue preclusion could have intervened in the earlier suit, and
- there are prior inconsistent judgments
What does due process require for notice?
Due process requires that the method of giving notice must have a reasonable prospect of giving actual notice. Posting of notice is insufficient to notify persons whose names and addresses are known; these persons must be notified at least by ordinary mail.
When is a renewed motion for a JMOL permitted?
It is permitted provided that the moving party moved for a JMOL at some time during the trial.
- the moving party is permitted to raise ONLY those issues raised in the initial motion for JMOL
What should a judge do if a renewed JMOL is filed alongside a motion for a new trial, in the alternaitve?
If the renewed motion is granted, the court MUST rule hypothetically on the new trial motion so that no remand is required if the ruling on the JMOL is subsequently reversed on appeal.
When may parties by joined as defendants?
Whenever:
- some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and
- there is a question of fact or law common to all the parties
How may a corporation be served under the federal rules?
A corporation may be served by serving any corporate officer or managing or general agent. Alternatively, service may be made under state rules or by mail under the waiver of service provision.
Where is venue proper?
In:
- a judicial district in whcih any defendant resides, if all defendants are residents of the state in which the district is located;
- a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred; or in which a substantial part of property at issue is located; or
- if there is no district anywhere in the United States that satisfies those, a judicial district in which any D is subject to the court’s personal jurisdiction with respect to such action
When will a party be bound by issue preclusion?
For a party to be bound:
- there must have been a final judgment;
- the issue must have been actually litigated and determined;
- the issue must have been essential to the judgment; and
- the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action.
Is a party under a duty to supplement his responses?
A party is under a duty to amend a prior response if he knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment
When may a deposition be used at trial?
It may be used at trial for any purpose if the deponent is at a distance greater than 100 miles from the place of trial.
When may a motion for summary judgment be granted?
Summary judgment may be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.
What does a plaintiff need to show to prevail on summary judgment?
For the plaintiff to prevail, he must satisfy the burden of production on every element of its claim. If neither party offers any evidence on an issue, the party with the burden of production loses.
What does the work product privilege protect?
Work product protects documents and materials prepared in anticipation of litigation, NOT the underlying facts in the document itself.
Can a court grant partial summary judgment?
Yes, summary judgment may be partial as well as complete
Are impleader claims compulsory?
NO!!!