Civil Procedure Learning Questions - Set 7 Flashcards
Which of the following factors is not required in order for an otherwise nonappealable interlocutory order to be appealable under the Interlocutory Appeals Act?
A
The controlling question of law is one as to which there is a substantial ground for a difference of opinion
B
The amount in controversy exceeds $75,000.
C
At least two appellate court judges agree to allow an appeal
D
An immediate appeal of the order may materially advance the ultimate termination of the litigation
B
The amount in controversy exceeds $75,000 is the correct answer because it is not a requirement for an immediate appeal under the Interlocutory Appeal Act.
Review under the Interlocutory Appeals Act is discretionary with the court and may be available when: (i) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an appeal would materially advance the conclusion of the case, and (ii) at least two appellate court judges agree to hear the appeal.
The general rule is that only final orders may be appealed. However, certain interlocutory orders may be appealed as of right.
Which of the following orders is immediately reviewable on appeal even if it is not a final order?
A
An order dismissing defendant’s counterclaims
B
An order regarding copyright claims
C
An order granting an injunction
C
Interlocutory (i.e., nonfinal) orders that may be immediately appealed include: (i) an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction), (ii) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships, (iii) decrees in admiralty cases that find liability but leave damages to be assessed later, (iv) a patent infringement order where only an accounting is wanting, and (v) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.
An order dismissing defendant’s counterclaims would not typically be subject to an interlocutory appeal absent other circumstances. Although patent infringement orders may sometimes be subject to interlocutory appeal as stated above, there is no such exception for an order regarding copyright claims.
As a general rule, a notice of appeal must be filed with the district court within ____ days from the entry of judgment.
A
60
B
30
C
90
D
28
B
Under Rules 3 and 4 of the Federal Rules of Appellate Procedure, a party has 30 days from the entry of judgment to file a notice of appeal with the district court.
The filing period is extended to 60 days when the United States is a party to the action.
90 days and 28 days are both incorrect.
When an action involves multiple claims or parties, and a judgment is entered that disposes of only some of the parties or claims, the judgment:
A
Generally is immediately appealable regarding the parties who were disposed
B
Is not immediately appealable until a final judgment is rendered as to all parties and all claims
C
Is immediately appealable only to the extent that the court makes an express determination that there is no just reason for delay
D
Generally is immediately appealable as to the claims that were disposed
C
When an action involves multiple claims or parties, and the court enters a judgment as to fewer than all the claims or all the parties, it is deemed a final, appealable judgment only to the extent the court makes an express determination that there is no just reason for delay.
Generally, a judgment as to only some of the claims or parties is not immediately appealable, regarding the parties who were disposed or as to the claims that were disposed.
It is untrue that a judgment regarding only some of the parties or claims is not immediately appealable until a final judgment is rendered as to all claims and all parties because such judgments are appealable if the judge expressly makes a determination that there is no just reason for delay.
A company manufactured and sold a product called “True Glue.” An inventor brought an action in federal court against the company, alleging that the product infringed a patent owned by him. The company denied the allegations of the inventor’s complaint. In addition, it asserted a counterclaim against the inventor for breach of contract, based on a transaction between them unrelated to the inventor’s claim.
After the completion of discovery, the company moved for summary judgment dismissing the inventor’s claim. The court granted the motion, thus leaving only the company’s counterclaim for breach of contract to be adjudicated.
Which of the following statements most accurately describes the inventor’s right to appeal the court’s grant of the motion for summary judgment?
A The inventor may immediately appeal the judgment because summary judgment is a final judgment.
B The inventor may immediately appeal the judgment because his claim does not arise out of the same transaction or occurrence as the company’s claim.
C The inventor may not appeal the judgment until the company’s claim against him has been adjudicated.
D The inventor may not immediately appeal the judgment unless the court provides that it is a final judgment and expressly determines that there is no just reason for delay.
D
When a court grants summary judgment on some but not all of the claims in an action, the court’s order is not final and thus not appealable unless the court expressly determines that there is no just reason to delay entry of judgment. Unless the trial judge makes that express determination, its order determining the merits of fewer than all of the claims is not a final judgment and is not appealable. For these reasons, (A) is incorrect. As discussed, summary judgment is not a final judgment unless it disposes of all of the parties’ claims or the court expressly determines that there is no just reason for delay. (B) is incorrect because the grant of summary judgment dismissing a claim is not appealable simply because the remaining claim arises from a different transaction or occurrence. (C) is incorrect because the order dismissing the inventor’s claim would have been appealable had the court determined there was no just reason to delay.
An aerospace company contracted with a propeller manufacturer to provide propellers for its planes. Dissatisfied with the quality of the propellers, the aerospace company filed a diversity action against the propeller company for breach of contract, claiming breach of its express warranty and breach of the implied warranty of merchantability.
At the conclusion of the trial, the aerospace company submitted proposed jury instructions listing a number of defenses that the jury could not properly consider, including the aerospace company’s assumption of risk and its failure to test the propellers. The court refused to give these instructions, and instead instructed the jury on the elements of breach of express and implied warranty. The aerospace company did not object to the instructions given by the court.
After the jury returned a verdict in favor of the propeller manufacturer, the aerospace company moved for a new trial on the ground that the court erroneously refused to accept the aerospace company’s requested jury instructions. The court denied the motion and the aerospace company filed a timely appeal.
Which statement best describes the aerospace company’s rights on appeal?
A The aerospace company waived its right to object to the jury instructions.
B The appeals court may review the court’s refusal to include the instructions, applying a de novo standard of review.
C The appeals court may review the court’s refusal to include the instructions, applying a plain error standard of review.
D The appeals court may review the court’s refusal to include the instructions, applying a harmless error standard of review.
C
Because the aerospace company did not timely object to the instructions, the court will review them using a plain error standard of review. In order to reserve its right to appeal an error in an instruction given or, as is the case here, a failure to give an instruction, a party must object on the record before the instructions are given. If adequately preserved, the instructions are reviewed using an abuse of discretion standard. However, if the objection is not made (and therefore not preserved for full appellate review), then the court’s review is limited to considering whether there was a plain error in the instruction that affected substantial rights. Thus (C) is correct, and (A), (B), and (D) are incorrect.
A woman sued her employer for sexual harassment. At the close of the trial, the employer made a motion for judgment as a matter of law, arguing that the woman’s evidence was insufficient to establish the elements of her claim. The court denied the motion.
When the jury returned a verdict in favor of the woman, the employer renewed its motion for judgment as a matter of law. In addition to the renewed motion for judgment as a matter of law, the employer also moved for a new trial, asserting that the verdict was against the weight of the evidence. The court denied both motions.
If the employer appeals the denials of both the renewed motion for a judgment as a matter of law and the motion for a new trial, what is the appropriate standard of review?
A De novo for the renewed motion for judgment as a matter of law and abuse of discretion for the new trial motion.
B Clearly erroneous for the renewed motion for judgment as a matter of law and de novo for the new trial motion.
C Abuse of discretion for both.
D De novo for both.
A
When an appellate court reviews a trial court’s ruling on a post-trial motion for judgment as a matter of law (including a renewed one), it employs a de novo standard. It does so because the issue is one of law. In contrast, when an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a clear showing of an abuse of discretion. Note that when a renewed motion for judgment as a matter of law and a motion for a new trial are made in the alternative and the renewed motion is granted, the court rules hypothetically on the new trial motion so that no remand is required if the ruling on the judgment as a matter of law is subsequently reversed on appeal.
A pedestrian sued a driver for personal injuries in federal court, properly invoking diversity of citizenship jurisdiction. In the complaint, the pedestrian alleged that the driver ran a red light and struck the pedestrian while the pedestrian was in the crosswalk. Concurrent with the accident, a police report was prepared on which the name and address of a witness to the accident was listed, but neither party requested a copy of the report from the police department. Thus, when the pedestrian submitted an interrogatory to the driver for the names and addresses of persons with knowledge of the accident known to the driver, the driver truthfully omitted the name of the witness. When asked during his deposition whether he knew of any witnesses, the driver again truthfully answered “I don’t know of any.”
At trial, the jury found for the driver. In one of the special interrogatories answered by the jury, the jury found that the driver had the green light and that the pedestrian was crossing against the light. Six months and a day after a final judgment was rendered in favor of the driver, the pedestrian’s attorney was contacted by the witness, who stated that the driver ran a red light and that the pedestrian had the “walk” sign when he attempted to cross the road.
The pedestrian’s attorney immediately moved for relief from judgment based on newly discovered evidence, and the trial judge granted the motion. On appeal, what should the court do?
A Affirm the trial judge’s decision, because whether to deny or grant a motion for relief from judgment is strictly a matter within the trial judge’s discretion.
B Affirm the trial judge’s decision, because the driver should have discovered the identity of the witness.
C Reverse the trial judge’s decision, because more than six months had passed since the judgment was rendered when the trial judge granted the motion.
D Reverse the trial judge’s decision, because the pedestrian could have discovered the witness’s identity with reasonable diligence.
D
The court should reverse the trial judge’s decision. On motion and just terms, the court may relieve a party from a final judgment or order on the following grounds: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; (iii) fraud, misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year from the judgment; for the other grounds, the motion must be made within a reasonable time. (But remember that a lack of subject matter jurisdiction may be raised at any time.) Such a motion is left to the trial judge’s discretion, and, on appeal, her decision will be reviewed on an “abuse of discretion” standard. Here, the motion would be based on newly discovered evidence. When deciding whether to grant or deny such a motion, the trial judge must determine whether the evidence could have been discovered with any amount of due diligence. Here, the name and address of the witness could have been easily discovered had the pedestrian’s attorney simply requested a copy of the police report from the police department. This is such an obvious case of lack of due diligence on the part of a represented party that it would be an abuse of discretion to grant relief based on newly discovered evidence. (C) is incorrect because the time period for bringing a motion for relief from judgment based on newly discovered evidence is within a reasonable time, not to exceed one year from the judgment, not six months. (A) is incorrect because, although the decision is left to the trial judge’s discretion, the exercise of discretion would be reviewed on appeal on an abuse of discretion standard, and here, the newly discovered evidence could have easily been discovered in time for trial with minimal preparation. Thus, the judge very likely abused discretion by granting the motion. (B) is incorrect. Although a party is required to disclose information within his possession upon a proper request (and after a proper search of his records), and to truthfully answer questions at a deposition, those requirements do not relieve the opposing party from conducting an investigation of her own case. In other words, the fact that the driver’s attorney may have been grossly negligent in preparing his case does not relieve the failure of the pedestrian’s attorney to discover the identity of the witness.
