Civil Procedure - Federal Flashcards
1
Q
Two-Step Analysis of PJ
PJ
A
- Fall within state statute (long arm, resident motorist act)
- Must satisfy the Constitution (Does the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice? (Contact, Relatedness, and fairness)
2
Q
What two factors are needed to show minimum contacts in a PJ analysis?
PJ
A
Purposeful Availment & Forseeablity (Forseeable that D could be sued in forum)
3
Q
When is there a Specific PJ? (Relatedness)
PJ
A
The P’s claim arose from or relates to D’s contact with forum. If the claim is related to the D’s contact with the forum, a court is more likely to find Specific PJ
4
Q
When is there general PJ?
PJ
A
The defendant must “be at home” in the forum.” If a claim is unrelated to the d’s contact with the forum, the court must have “general” pj over the d, which requires the d be at home in jx.
5
Q
What extra factor do you consider when the court only has special PJ over a D?
PJ
A
Fairness ( burden on the d and witnesses, state’s interest, p’s interest)
6
Q
Notice usually consists of what two documents?
Notice/ Service
A
A Summons & Copy of Complaint
7
Q
Who can serve process?
Notice/ Service
A
at least 18 year old & not a party to the action
8
Q
When must process be served?
Notice/ Service
A
within 90 days of filing the complaint
9
Q
What is personal service?
Notice/ Service
A
Process is given to the defendant personally ANYWHERE
10
Q
How does one do substituted service?
Notice/ Service
A
(1) At D’s* Usual place of abode*
(2) With someone of suitable age and discretion (like 14?)
(3) who resides there
~in fed, sub service okay even if pers. service is possible~
11
Q
How can you serve a business or organization in the US?
Notice/ Service
A
(1) Deliver to an officer (pres, etc) or a managing or general agent a copy of summons & complaint. ** OR **
(2) Use a method permitted by the state where fed ct sits or where service is to be made
12
Q
What must the plaintiff include in the request to waive service?
Notice/ Service
A
A copy of complaint and two copies of the waiver form, with a prepaid means of returning the form.
13
Q
How long does a D have to waive service?
Notice/ Service
A
If D executes and mails the waiver from to P within 30 days (60 for Ds outside of US), she waives service of process.
14
Q
If a D waives service of process, do they also waive any defenses like lack of PJ?
Notice/ Service
A
NO.
15
Q
When is the waiver effective?
Notice/ Service
A
The day P files the signed waiver form with the court. For timing purposes, this means you act as though the D was served with process on day P filed the waiver form.
16
Q
What is the penalty for failing to waive service?
Notice/ Service
A
If D did not have good cause for failing to return the waiver form, D must pay cost of service
17
Q
What is SMJ ?
SMJ
A
SMJ is the court’s power over the case.
18
Q
Can a lack of SMJ be waived?
SMJ
A
No, it cannot (unlike PJ). If a case does not invoke fed SMJ, the fed ct. cannot hear the case. If it does, the judgment is void.
19
Q
What are the two requirement for Diversity jurisdiction?
SMJ
A
(1) The case is between citizens of different US states (or between a citizen of US state and a citizen of foreign country )
(2) the amount in controversy exceeds $75,000
20
Q
What is the Complete Diversity Rule?
SMJ
A
Diversity of citizenship jurisdiction does not exist if ANY p is a citizen of the same state as ANY D.
21
Q
When is the citizenship of the parties determined?
SMJ
A
When the case is filed (not when the claim arose)
22
Q
How do you establish where a person is domiciled for purposes of diversity jurisdiction?
SMJ
A
(1) physical presence in the new domicile
(2) the INTENT to make that place your home for the indefinite future
23
Q
How do you establish citzenship for a corporation?
SMJ
A
A corp is a citzen of any state or country in which it is incorporated **AND ** of the ONE state in which is has it principal place of business (PPB)
24
Q
How do you determine a corportion’s principal place of business?
SMJ
A
Look for the “nerve center” of the corp. State where the corp’s managers direct, coordinate, and control business activities. Headquarters, usually.
25
How do you determine an unicorporated association's citizenship?
| SMJ
Takes on the citizenships of all of its members. If its a LP, you included the citizenships of GPs and LPs.
26
How do you determine the citizenship of Decedents, minors, incompetents?
| SMJ
Use their own citizenship; Represenatives citizenship is irrelevant.
27
How do you determine the citizenship for a class action?
| SMJ
Citizenship of name represenative(s)
28
When may claim amounts be aggregated to meet the $75,000+?
| SMJ
Any **single** plaintiff may aggregate **all** of her claims against a **single** defendant. No limit to the number of claims that can be aggregated and claims do not have to be related to each other.
29
How do you quantify Equitable relief in terms of the amount in controversy requirement?
| SMJ
Two Tests (if either met, most courts satisfied):
(1) Look at **P's view point**, if granted does the relief requested have a value of more than $75k?
(2) Look at **D's viewpoint** , if granted will the relief request by P cost the D more than $75k?
30
What is Collusive Creation of Diversity?
| SMJ
If a party attempts to create diversity by a sham transaction, the courts ignore the transaction and declare that diversity does not exist.
31
When is there Federal Question Jurisdiction?
| SMJ
The P's claim must "arise under" fed law like the constitution or fed legistation.
32
What is the well pleaded complaint rule?
| SMJ
It is not enough that some fed issue is raised by the complaint. The P's **claim itself** must **"arise under"** fed law.
33
What claims usually arise only under state law (unless expressly stated other wise in the question)?
| SMJ
Regular tort, contract, and property claims.
34
How is a case removed to Fed Ct?
| SMJ
(1) Fed SMJ is necessary
(2) D files notice of removal in** fed ct,** stating grounds of removal (Fed SMJ)
(3) D "promptly" seves a copy of the notice of removal on adverse parties
(4) D files a copy of the notice of removal in **state ct**.
35
How long does a D have to remove a case?
| SMJ
D must remove no later than 30 days after **service**
36
Can plaintiffs remove a case to fed ct?
| SMJ
Plaintiff's can never, never ever, remove. This is true even if the D files a counterclaim against the P that by itself could be heard in fed ct.
37
Which district court must the Defendant remove to?
The fed district ct that **"embraces** the state court where the case was filed
38
What is the deadline for the removal of the diversity jurisdiction case?
| SMJ
One year after the case was filed in state court
39
When is the deadline for a P to make a motion to remand for a reason other than lack of SMJ (like for the one-year limitation on the removal of div. cases)?
| SMJ
She must move to remand no later than 30 days after filing of the notice of removal. If she fails to do this, she waives her right to remand.
40
When is the deadline for a P to make a motion to remand if she believes the removal was improper because the court lacked SMJ?
| SMJ
No time limit on ordering remand. *REMEMBER* SMJ is never waive, and a court without SMJ is powerless to act on the case.
41
What is supplemental jurisdiction?
| SMJ- Supplemental Jurisdiction
Supplemental Jurisdiction is a form of fed SMJ. But it is fundamentally different from div. or FQ. Div. and FQ SMJ get **cases** into fed ct. Supp. Jx does not. Instead, it gets **claims** into a federal case.
42
How should you analyze ANY additional claim for SMJ?
| SMJ- Supplemental Jurisdiction
(1), check for Div or FQ jx over the additonal claim first (EXAM TIP: dont just merely state there is supp jx w/o first addressing whether the claim has an idependent basis for SMJ)
(2) Now check for Supp Jx if no diversity or FQ.
43
How do you determine if an additional claim has supplemental Jx?
| SMJ- Supplemental Jurisdiction
Shares a **common nucleus of operative fact**
Claim arises from the same transaction or occurence.
44
What is the limitation on the use of supp. Jx in div. cases?
| SMJ- Supplemental Jurisdiction
Claims by P's generally cannot invoke supplemental jurisdiction.
ExceptioN: Multiple P's and a claim by one of them does not meet amount in controversy requirement.
45
What is the* Erie* Doctrine? (What is the approach for an exam)?
| Law Applied in Fed Ct
When must a fed judge apply state law or federal law?
Step 1. Ask: is there some fed law on point that directly conflicts with state law? If so, apply fed law. (supremacy clause)
Step 2. If no fed law on point, the fed judge must apply state law if the issue is decided to be substanative. (see other flash card)
Step 3. if no fed law on point and the issue is in a grey area, the fed judge must determine if the issue is "subsanative" or "procedural." (see other flash card for tests)
46
What issues are usually substantive issues?
| Law Applied in Fed Ct
* Conflict or choice of law rules;
* Elements of a claim or defense;
* Statute of Limitations
* Rules for tolling statute of limitations; and
* the standard for granting a new trial b/c the jury's award was excessive or inadequate
47
What are the 3 tests a fed judge may consider when determining whether an issue is substantive or procedural? Describe each.
| Law Applied in Fed Ct
* Outcome Determinative: Would applying or ignoring a state rule affect the outcome of the case? If so, its probably a substanative
* Balance of Interests: Does either the fed or state system have a stronger interest in having its rule applied?
* Forum Shopping: If the fed ct ignores state law on this issue, will it cause the parties to flock to fed ct?
48
What are the basis choices under the venue statute?
| Venue, Transfer, and Forum Non Convieniens
* Residential venue (where d resides)
* Transactional venue (where a substantial part of the claim arose or property involved in the suit is located)
49
Where does a human "reside" for purposes of residential venue?
| Venue, Transfer, and Forum Non Convieniens
Where they are domiciled
50
Where does a business "reside" for purposes of residential venue?
| Venue, Transfer, and Forum Non Convieniens
A business resides in all districts where it is subject to PJ for the case.
51
When can a court transfer venue if the original district is a proper venue?
| Venue, Transfer, and Forum Non Convieniens
Based on the convience of the parties and the witnesses and in the interests of justice. Burden is on the person seeking the transfer to show this.
52
When a diversity case is filed in a proper venue but the court order transfer, what choice of law rules must the new court apply?
| Venue, Transfer, and Forum Non Convieniens
The new court must apply the choice of law rules of the old court.
53
What is a forum selection clause? Do cts enforce them?
| Venue, Transfer, and Forum Non Convieniens
A FSC is a provision in which parties agree to litigate in a particular place. Fed law enforce FSC if they are not unreasonable.
54
When can a court transfer venue if the original district is an improper venue?
| Venue, Transfer, and Forum Non Convieniens
The court may transfer in the interest of justice or just dismiss the case. Ct. will transfer if possible.
55
What is Forum Non Conveniens?
| Venue, Transfer, and Forum Non Convieniens
Forum Non Conveniens applies when there is another court that is the center of gravity for the case. It is court's discretionary power to decline to exercise its jurisdiction where another court, or forum, may more conveniently hear a case.
56
What must a complaint contain? 3 things
| Pleadings
1. Grounds of SMJ
2. Short and plain statement of claim showing p is entitled to relief
3. A demand for relief sought
57
Must a plaintiff allege PJ or venue in their complaint?
| Pleadings
No.
58
What sort of details are required in the complaint?
| Pleadings
P must plead ** sufficient facts to support a plausible claim**
59
In which case must is there a special pleading requirement? What is that special requirement?
| Pleadings
Fraud, mistake, and special damages. Must be plaeded with **particularity** or **specificity**
60
How may a defendant respond to a complaint?
| Pleadings
Motion or Answer
61
What is the deadline for a D to respond to a complaint? What is the deadline if they waived service?
| Pleadings
No later than 21 days after being served with process. If D waived, then D has 60 days from when the P mailed the waiver form to respond.
62
What defenses are waived if not put int the first response?
3 P's and a V
| Pleadings
* A lack of PJ
* Improper Venue
* Improper Process
* Improper Service of Process
63
Which defenses under Rule 12(b) can be raised even after the first response?
| Pleadings
* Failure to State a claim (May be raised anytime before or at trial
* Failure to Join a party under rule 19 (may be raised any time before trial or at trial)
* Lack of SMJ (raised at any time)
64
When must a D serve their anwer if the MTD under rule 12 is denied?
| Pleadings
No later than 14 days after notice of denial.
65
What are the 3 types of responses to allegation the D may make in his answer?
| Pleadings
* **Admit** some or all allegations
* **Deny** some or all allegations
* State that he has **insufficient knowledge** to admit or deny. (effect of a dential, cannot do if the answer is in his control)
66
For how long and how often, does a **plaintiff** have a right to amend their complaint?
| Pleadings
P has a right to amend **once** no later than **21 days** after D serves answer or motion
67
For how long does and how often, does have a **defendant** have a right to amend their answer?
| Pleadings
The d has a right to amend his answer **once** no later than 21 days after serving it.
68
When may the court grant leave to amend after deadline has passed?
| Pleadings
If justice so requires. Ct. considers length of delay, prejudice to the other party, and futility of amendment.
69
What is variance?
| Pleadings
Variance comes up when the evidence at trial does not match what was pleaded. If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence.
70
When may a party amended a claim after a statue of limitations has run **to join a claim not originally asserted**?
| Pleadings
If it **relates back**. Concerns the same conduct, T/O
71
When may a party amended a claim after a statute of limitations has run **to change a defendant**
| Pleadings
* Has to relate back
* D had to have knowledge of the case, so that she want be prejudiced (must come within the 90 days after filing the complaint)
* D knew or should that but for mistake she should have been originally name
72
What is a supplemental pleading? How do you make one?
| Pleadings
A supp. pleading sets forth things that happened **after** the pleadings were filed. There is no right to file a supp. pleading. You must make a motion and that motion is up to the courts discretion.
73
What is the Rule 11 signature requirement certifying?
| Pleadings
Certifies to the best of her knowledge and belief, **after reasonable inquiry**:
* the paper is not for **improper purpose**
* legal contentions are **warranted by law or a nonfrivolous argument for a law change**; and
* the factual contentions and denials of factual contention have **evidentiary support or are likely to after further investigation**.
74
What are rule 11 sanctions? Who can they be imposed on? Can a court impose the sanctions or to do they have to be asked for?
| Pleadings
Rule 11 sanctions are for a violation of Rule 11, such as an assertion of a baseless claim. May be applied against the party, the lawyer, and/or the lawyers firm. Court can also raise rule 11 violations "sua ponte" (on its own motion). Before imposing court must give sanctioned party an opp. to be heard.
75
What is the safe harbor provision in relation to Rule 11 violations?
| Pleadings
If the other party violates rule 11, the opposing party cannot immediatley file a motion for sanctions. Rather, she serves the motion on other parties, but DOES NOT file with court yet. The party in violation has a **safe harbor of 21 days** in which they can fix the problem and avoid sanctions.
76
| Joinder
77
What are the two requirements to join parties?
| Joinder
The claims by multiple p's or aginst multiple d's must:
1. Arise from the same T/O; and
2. Raise atleast one common question of law or fact
78
What makes someone a "necessary" party/absentee?
| Joinder
* Without the absentee, court cannot accord **complete relief** among existing parties (worried about multiple suits; or
* The **absentee's interst may be harmed** if she is not joined (MOST LIKELY): or
* The absentee claims an interest that **subjects a party (usually the defendant) to a risk of multiple obligations**
REMEMBER: Joint tortfeasors are NEVER necessary
79
What if the absentee cannot be joined because there is not PJ/ SMJ over absentee?
| Joinder
Court then must determine whether to proceed without the absentee or dimiss case entirely. Look at these factors:
* Is there an alteranative forum (state court)
* What is the actual likelihoood of harm to the absentee?
* Can the court shape relief to avoid that harm?
If court decides to dismiss, the absentee is "indispensable"
80
When is a counterclaim compulsory?
| Joinder
When it arises from the same T/O as the P's claim.
81
When is a counterclaim permissive?
| Joinder
Does not arise from same T/O as p's claim
82
When is a cross claim compulsory?
| Jonder
NEVER
83
Why may a party implead another party?
| Joinder
Used to shift liability to the TPD that the defendant will owe the plaintiff.
84
When is a impleader claim compulsory?
| Joinder
NEVER.
85
What is the process for impleading a TPD into the case?
| Joinder
Def must:
1. **file a third-party complaint** naming the TPD
2. Have the complaint **formally served** (like an original complaint) on the TPD
86
How long does a Defendant have a right to implead?
| Joinder
14 days after serving an answer. After that, court permission is needed.
87
May a plaintiff assert claims against a TPD? May a TPD assert claims against the plaintiff?
| Joinder
Yes, to both, so long as they arise out of the same T/O as the underlying case
88
What is intervention?
| Joinder
When a non-party absentee uses intervention to bring herslef into the case
89
What is intervention of right?
| Joinder
If the absentee's interest may be harmed if she is not joined, and that interest in not adequately represented by the current parties, intervention is "of right"
90
What is permissive intervention?
| Joinder
If the absentee's claim or defense and the pending case have atleast **one common question of law or fact**, the intervention would be permissive and discretionary of the court. Usually allowed unless it would cause delay or prejudice.
91
What interpleader?
| Joinder
Interpleader applies if sepreate actions might result in double liability. An interpleader suit permits a person/stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which, if any, has the alid claim to it.
92
What are the 4 intital requirements for a class action?
NCTR
| Joinder
* **Numerosity** : too many class members for praticable joinder
* **Commonality**" some issue is common to all class members, so resolution will generate answers for everybody
* **Typicality**: reps claims are typical of the claims of the class
* **Represenative Adequate**: class rep will fairly and adequately represent the class
93
What are the three types of class actions?
| Joinder
* **Prejudice** (type 1): class treatment is necessary to avoid harm/prejudice
* **Injuctive or Declaratory Relief** (type 2): class action seeks an injunction/declaratory judgment b/c D treated the class members alike
* **Common Question/Damages** (type 3): Common questions must *predominate over individual questions* and the class action is *a superior method* to hand the dispute. Used for mass torts
94
What information is required in initial disclosures?
| Discovery
* Identies of Persons with Discoverable Information that the Party may use to support her claims or defenses
* Documents and Things that the Party may use to support her claims and defenses
* Computation of Relief along with supporting documents
* Insurance Coverage
95
What is the penalty for failing to make those initial disclosures?
| Discovery
If a party fails to discose material that was required to be disclose, that party cannot use the undisclose material in the case unless the failure to disclose was substantially justified.
96
What is required for expert disclosures?
| Discovery
As to an EW who may be used at trial, each party must diclose the identity and a written report prepared by the EW. The written report must include: Opinions that EW will express, the bases for the opinions, the facts used to form the opinions, the EW's qualifications; and how much the EW is being paid.
97
What is the penalty for failing to disclose EW material?
| Discovery
Cannot use EW unless the failure was justified or harmless?
98
What are the required PRETRIAL disclosures?
| Discovery
No later than 30 days b4 trial, parties must give detailed info about their trial evidence, including identity of witness, ESI, and anything else they are going to introduce
99
What is the limit on depositions?
| Discovery
Cannot take more than 10 depos or depose the same witness twice w/o court approval. Depos cannot exceed one day of seven hours.
100
What is the maximum number of interrogatories?
| Discovery
25 including sub parts
101
How long to answer interrogatories?
| Discovery
30 days from service of interrogatories
102
How long to respond to a request to produce?
| Discovery
30 days
103
What must a requesting party show in order for the court to compel a medical exam? 2 things
| Discovery
1. The person's **health is in actual controversy**
2. **good cause**
104
What is the scope of discovery?
| Discovery
A party can discover anything that is **relevant to a claim or defense and proportional to the needs of the case** (that isnt privileged)
105
What is work product?
| Discovery
Material prepared **in anticpation of litigation**. Need not be generated by a lawyer. It can be prepared by the party herself or by any represenative of a party.
106
When may an opposing party obtain work product materials?
If the party can show a substantial need and undue hardship in obtaining the materials in an alternative way
107
When may a party seek a protective order from discovery requests?
| Discovery
1. The request will subject her to annoyance, embarassment, undue burden, or expense
2. Party certifies tthat she tried in good faith to resolve the issue without court interference (meet & confer)
108
What happens when a party only responds partially, but not fully, to a discovery request ?
| Discovery
Two step process:
1. Requesting party moves for an order compelling the production to unanswered material
2. If the producing party violates the order compelling her to answer, court can enter "merits" sanctions along with cost and attorneys fees for bring the motion
109
What happens if the producing party fails to respond at all?
| Discovery
The court can enter "merits" sanctions pluse cost and attoneys fees for the motion. No need for motion to compel.
110
What are examples of "Merits" sanctions?
| Discovery
* Establisment order (establishes facts as true)
* Strike pleading of the disobedient party (as to issues re the discovery)
* Disallow evidence from the disobedient party
* Dismiss the plaintiff's case (if bad faith shown)
* Enter default judgment against the Def (if bad faith shown)
111
When may an "ex parte" TRO be granted?
| Adjudication without Trial
* Applicant files a paper **under oath** clearly showing that if the TRO is not issued, she will suffer **immediate and irreparable harm** if she must wait until the other side is heard
* The applicant's lawyer certifies in writing her efforts give ** oral or written notice** to the D or the D's lawyer (or why notice should not be required in this case)
112
What must be included in the content of a TRO?
| Adjudication without Trial
Must state its terms **specifically**, describe in **detail** what the defendant must do (or refrain from doing), stat why it was issued and state why the threatened injury to the plaintiff was irreparable
113
What is the duration of a TRO?
| Adjudication without Trial
A TRO is effective for no more than ** 14 days**.
If app shows good cause before expiration, can be extended for another 14 days, but cant go beyond 28 days without being treated as a prelim injunction.
114
What must a party show for a court to consider a preliminary inunction?
WHIP
| Adjudication without Trial
When the applicant shows:
* She is likely to suffer **irreparable harm** if the injunction is not issued
* She is likely to **win on the merits** on the underlying
* The **balance of hardships favors her**
* the injunction is in the **public interest**
115
When may a plaintiff withdraw a case without the court's permission?
| Adjudication without Trial
Before the defendant serves an answer or motion for summary judgment. (parties may also stip to voluntary dismissal)
116
What is the first voluntary dismissal classified as? What about the second?
| Adjudication without Trial
The first is "without prejudice, meaning P can refile. The second is with prejudice, which operates as an adjudication on the mertis and takes away from the plaintiff's ability to refile the case.
117
How does a plaintiff get a default judgment from the **clerk of court** ? (not the judge)
| Adjudication without Trial
* Def has made no response (not *appeared*)
* the claim is for a sum certain in money
* Plaintiff gives an affadavit of the sum owed; and
* the defendant is not a minor or incompetent
118
When may a default be set aside?
| Adjudication without Trial
D moves to have court set aside default by showing (1) good cause and (2) a viable defense
119
What is the standard for summary judgment?
| Adjudication without Trial
There is no genuine issue of material fact; and moving party is entitled to judgement as a matter of law
120
When (timing) can a party move for a summary judgment
| Adjudication without Trial
A party can move for summary judgment no later than 30 days after the close of discovery.
121
What is a Rule 26(f) conference? When does it need to occur? And what does it need to discuss/produce?
| Confrences, Trial, Judgment, and Post Trial motions
Unless the court order says otherwise, **atleast 21 days before the court's scheduling order**, the parties "meet and confer to discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable info.
Must present to court a detailed discovery plan no later than 14 days after Rule 26(f) conference
122
What happens at the Final pre trial conference?
| Confrences, Trial, Judgment, and Post Trial motions
The final pre trial conference determines the issues to be tried and evidence to be proffered at trial. This is recorded in the pretrial conference order, which supersedes the pleadings. This is a roadmap of issues to be tried, evidence to be presented, witnesses etc. so that there are no suprises.
123
What amendment preserve the right to jury in "civil actions at law"?
| Confrences, Trial, Judgment, and Post Trial motions
The 7th amendment, does not provide for right to suit at equity. 7th amendment does not apply to state ct, only fed civil cases.
124
When must a jury demand be made and how?
| Confrences, Trial, Judgment, and Post Trial motions
A party must demand the jury demand **in writing** no later than **14 days after service of the last pleading addressing a jury triable issue**. If they fail to do this, they waive their right to a jury.
125
What is a "For Cause" Challenge and how many do you get?
| Confrences, Trial, Judgment, and Post Trial motions
A juror may be challenged "for cause" because the potential juror will not be impartial. Parties have **unlimited number** of challenges for cause
126
What is a "Peremptory challenge" and how many do you get?
| Confrences, Trial, Judgment, and Post Trial motions
There are challenger for which the party states no reason. Each side is limited to **three challenges**
Must be used only in a race- and gender neutral manner
127
What is the standard for granting a Judgment as a Matter of Law (JMOL)?
| Confrences, Trial, Judgment, and Post Trial motions
The standard for granting the motion is that **reasonable people could not disagree** on the result
128
When must a party move for a new trial?
| Confrences, Trial, Judgment, and Post Trial motions
Within 28 days of the judgment
129
What are some examples of when a new trial may be granted?
| Confrences, Trial, Judgment, and Post Trial motions
* Judge gave an erroneous instruction
* New evidence was discovered that could not have been discovered before with due dillegence
* Misconduct was committed by a juror, party, or lawyer
* The judgment is against the weight of the evidence; and
* Damages are inadequate or excessive
130
What is remittur?
| Confrences, Trial, Judgment, and Post Trial motions
The court offers **the plaintiff **a choice: remit part of the damages award or go through a new trial
131
What is additur?
| Confrences, Trial, Judgment, and Post Trial motions
The court gives **the defendant** a choice: add to the damage award or go through a new trial. ONLY ALLOWED IN GA CT, not fed
132
When must a notice of appeal be filed?
| Appellate Review
Must be filed with the district court within 30 days after entry of the judgment that is being appealed.
133
When may a court hear an interlocutory appeal? Specific Examples
| Appellate Review
* Madamus - an extradordinary writ of a madumus
* Multiple Claims and Parties - when more than one claim is presented in a case, the dst. ct. may expressly direct entry of a final judgment as to one or more of them
* "Collateral Order" Doctrine - courts have discretion to hear if it Is distinct on the merits of the case, involves an important legal question, is essentially unreviewable if parties await a final judgment.
* Preliminary Injunction
* Class Action for certification of the a class action
134
What is the standard of appeal for review of questions of law?
| Appellate Review
De Novo: no deference is given to district judge
135
What standard is used for Questions of Fact in a bench trial?
| Appellate Review
Court of appeals will affirm unless the finding are **clearly erroneous**
136
What standard is used for a Review of Question of Fact in a jury trial?
| Appellate Review
The court of appeal will affirm unless ** reasonable people could not have made that finding**
137
What standard is use for Review of Discretionary Matters?
| Appellate Review
The court of appeals will affirm unless the judge has **abused her discretion**
138
What is Res Judicata?
| Claim and Issue Preclusion
Res Judicata or Claim preclusion is the idea that a claimant may sue only once to vindicate a claim. So you only get one case in which to seek recovery for all right to relief for that claim
139
For a claim to be barred, what three things must be true?
| Claim and Issue Preclusion
1. Same Claimant suing the Same Def: Case 1 and 2 were brought by same claimant against same def.
2. Valid, Final Judgment on the Merits: case 1 must have ended in a valid final judgment on the merits
3. Case 1 and 2 must be the "same claim": a claim is any right to relief arising from a transaction or occurence.
140
What is Issue Preclusion (Collateral Estoppel)?
| Claim and Issue Preclusion
An issue was litigated in case 1. The same issue cannot be religated in Case 2. It is deemed established in case 2, thereby streamlining the scope of litigation.
141
For an issue to be barred, what five requirements must be met?
| Claim and Issue Preclusion
1. Case 1 ended in Valid, Final Judgment on the merits
2. Same issue actually litgated and determined in case 1
3. Issue was essential to judgment in case 1: the finding on the issue is the basis for judgment
4. **Due process factor**: Can only be used against somebody who was party or in privity with a party in case 1
5. **Mutuality Rules **: - nonumutual defensive v. Non mutual offensive , fairness factors
