Federal Civil Procedure Flashcards
1
Q
What is personal jurisdiction?
A
Power over the parties. It is necessary for a court to take jurisdiction.
2
Q
How is personal jurisdiction assessed?
A
Same as in state court.
3
Q
What is subject matter jurisdiction (SMJ)?
A
Power over the case. Federal courts hear only two types of suits: diversity of citizenship and federal question.
4
Q
What are the requirements for diversity of citizenship?
A
(1) The case is either between citizens of different states or between a citizen of a state and a citizen of a foreign country AND (2) amount in controversy exceeds $75K.
5
Q
What is the complete diversity rule?
A
No diversity if any P is a citizen of the same state as any D.
6
Q
What is the citizenship of a natural person?
A
State of domicile i.e. where (1) present in state and (2) intent to make it her permanent home. Can only have one domicile at a time.
7
Q
When do we test for diversity?
A
When the case is filed. We don’t care about what happens before/after.
8
Q
What is the citizenship of a corporation?
A
(1) State where incorporated AND (2) state where the corporation has its one and only principal place of business. Can be a citizen of two states at once.
9
Q
What is the corporation’s principal place of business?
A
Where managers direct, coordinate, and control corporate activities. NERVE CENTER RULE.
10
Q
What is the citizenship of an unincorporated association (i.e. partnership, LLC)?
A
Use the citizenship of all members (that includes general and limited partners). Don’t care where business was formed or where it has its PPB.
11
Q
What is the citizenship of decedents, minors, or incompetents?
A
Use their citizenship, not the citizenship of their representative.
12
Q
What is the rule in diversity jurisdiction for amount in controversy?
A
Claim must EXCEED $75K. Whatever the P alleges in GF is OK unless it is clear to a legal certainty (stat cap) P can’t recover more than $75K.
13
Q
What if P wins less than the amount in controversy minimum?
A
What P wins is irrelevant to jurisdiction, but if P wins less than 75K, P may have to pay D’s litigation costs but not attorney’s fees (despite fact that usually loser pays).
14
Q
What is aggregation?
A
Adding 2+ claims to meet the amount in controversy requirement. There is no limit to the number of claims that may be aggregated as between 1P and 1D. Claims don’t even have to be related.
15
Q
When can you aggregate claims with more than 2 parties to satisfy the amount in controversy?
A
Usually never unless there are joint tortfeasors and the total value of the claim by 1P against 3D is greater than 75K. With joint claims, the number of parties is irrelevant.
16
Q
How do we determine amount in controversy when equitable relief (injunction) is sought?
A
Either (1) the injunction is worth more than 75K to P or (2) the injunction will cost more than 75K to D if granted.
17
Q
When will diversity jurisdiction never be granted?
A
Cases of divorce, alimony, or child custody decree or to probate an estate.
18
Q
What are federal question cases?
A
Complain must show a right or interest founded substantially on a federal law such that the claim arises under federal law.
19
Q
What is the rule for determining if the complaint contains a federal question?
A
Well pleaded complaint rule. Ask: is P enforcing a federal right? Not enough that some federal issue is raised by the complaint.
20
Q
Once you have FQ or DivJ for a claim in a case, are all claims automatically in federal court?
A
NO! For each claim, test whether it invokes DivJ, FQ, or SuppJ.
21
Q
What is Supplemental Jurisdiction?
A
When case is already in federal court through some claim that satisfies FQ or diversity and additional claim doesn’t meet either test, supplemental jurisdiction allows claim to get into federal court if it “shares a common nucleus of operative fact.”
22
Q
What is a common nucleus of operative fact?
A
Always met by claims that arise from the same transaction or occurrence (T/O) as the underlying claim.
23
Q
What is the limitation on Supp.J?
A
In a diversity case, P can’t use supp.j to overcome a lack of diversity of citizenship. Limit doesn’t apply to FQ or problems with amount in controversy.
24
Q
What is the solid gold summary for supplemental jurisdiction?
A
A non-federal, non-diversity claim can be heard in federal court if it meets “the nucleus test” UNLESS asserted by P in diversity case and is against a citizen of the same state as P.
25
Does the court have to hear the supplemental claim?
No. It has discretion not to hear if 1) federal question is dismissed early in proceedings or 2) state law claim is complex or 3) state law issues would predominate.
26
What is removal?
D sued in state court might be able to remove the case to federal court. This moves the case from a state trial court to a federal trial court.
27
When may a D remove?
W/in 30 days of service of the first paper that shows the case is removable (usually 30 days after service of process).
28
Can a case be removed if there are multiple Ds?
Yes, but all Ds who have been served with process must join in removal.
29
When multiple Ds must be served, when does the 30 day deadline for removal run?
30 days after the last D is served.
30
Can a P ever remove?
No!
31
What cases can be removed?
Any case that meets the requirements for diversity of citizenship or FQ.
32
What are the exceptions to the removal rule?
If removing on the basis of diversity, (1) no removal if any D is a citizen of the forum (in state D rule) and (2) no removal if more than one year after the case was filed in state court.
33
Where does the case get removed to?
The federal district court embracing the state court where the case was filed.
34
What is the procedure for removal?
D files notice of removal in federal court stating grounds for removal, signed under Rule 11. Attach all documents served on D in state action and serve a copy on all adverse parties. File copy of notice in state court.
35
When is removal waived?
When D files a permissive counterclaim in state court. Filing a compulsory counterclaim does not waive the right to remove.
36
What if P wants to object to removal?
Must move to remand to state court w/in 30 days of removal if federal SMJ. If no federal SMJ, P can move to remand at any time.
37
What is the Erie doctrine?
In diversity cases, the federal court must apply state substantive law.
38
What is Erie step 1?
Ask: is there federal law on point that directly conflicts with state law? If yes, apply federal law so long as it's valid. Rule is valid if "arguably procedural" and doesn't modify substantive rights. Why? Supremacy Clause.
39
What is Erie step 2?
If no federal law on point and rule relates to 1) elements of claim or defense, 2) SOL, 3) rules for tolling SOL, or 4) conflict or choice of law, apply state law because these are substantive per SCOTUS.
40
What is Erie step 3?
If no federal law and not one of the step 2 issues, if the issue is substantive, judge must follow state law.
41
What are the tests to know if an issue is "substantive"?
Outcome determinative (will applying or ignoring rule affect outcome? If yes, substantive); Balance of interests (does fed or state have a strong interest in having rule applied?); Avoid forum shopping
42
What is the basic idea of venue?
Tells us which federal court to use when we have SMJ.
43
Where may the case be brought?
Any district where (1) all Ds reside OR (2) a substantial part of the claim arose.
44
What is the special rule if all Ds reside in different districts of the same state?
P can lay venue in the district in which any D resides.
45
Where do Ds reside for venue purposes?
If a human, in the district where domiciled. If a business, in all districts where subject to PJ for this case.
46
What is transfer of venue?
A federal district court may transfer the case to another federal district court WHERE THE CASE COULD HAVE BEEN FILED i.e. to a proper venue that has PJ over D.
47
What is the exception to the transfer of venue rule?
The court can transfer to any district (even improper) if all parties consent AND court finds cause for the transfer.
48
In deciding whether to transfer venue, what does a court do?
It has discretion, considering public and private factors showing that the other court is the "center of gravity" for the case, to transfer. Courts are wary of this because it overrides P's choice of forum.
49
What are the public factors in transfer of venue considerations?
What law applies, what community should be burdened with jury service, keeping local controversy in local court.
50
What are the private factors in transfer of venue considerations?
Where are the Ws and the evidence? Think convenience.
51
What law applies if the venue is transferred?
Transferee court applies the choice of law rules of the original court.
52
What if venue in the original district is improper?
Court may transfer in the interest of justice or dismiss.
53
What is forum non conveniens?
When there is another court that is the center of gravity but the court does not transfer, it may dismiss or stay the case. Why? Transfer is impossible because it is in a different judicial system.
54
What is the forum non conveniens decision based on?
The same public and private factors as in transfer of venue. Need a VERY strong showing and is almost never granted if P is a resident of the present forum. The other court must be available and adequate.
55
What is service of process?
Must give notice of suit to D by delivering 1) a summons and 2) a copy of the complaint. These two docs TOGETHER are called process.
56
When must you serve D?
W/in 120 days of filing case or dismissed w/o prejudice unless P shows good cause for delaying in service.
57
Who can serve process?
Any nonparty who is at least 18 years old.
58
How can process be served?
Personal service anywhere; substituted service; service on D's agent; methods permitted by state law; waiver by mail.
59
What is substituted service?
Process is left at (1) D's usual abode AND (2) someone of suitable age and discretion who resides there received the service.
60
What is service on D's agent?
Process can be delivered to D's agent if receiving service is in the scope of agency.
61
What is the state law rule for service?
Can use methods of service permitted by state law of the state where the federal court sits or where service is made.
62
What is waiver (of service) by mail?
Mail D a copy of complaint and 2 copies of waiver form w/ a prepaid means of returning the form. If D executes and returns w/in 30 days, D waives formal service (not defenses). P then files the waiver and it becomes effective.
63
What if D does not return the waiver form?
P must formally serve D but if D did not have good cause for failing to return the waiver form D must pay the cost of service.
64
What is the immunity from service rule?
If D is instate to be a W or party in another civil case, D is immune from service for another federal civil case.
65
How are documents other than service delivered?
Deliver or mail (or email if parties consent) document to party's attorney (or pro se party). If mailed, add 3 days for any required response.
66
What does Rule 11 make true of all documents (except discovery)?
When parties sign documents, they certify that to the best of their knowledge and belief, after reasonable inquiry, that (1) the paper is not for an improper purpose, (2) the legal contentions are warranted by law, and (3) the factual contentions and denials of factual contentions have evidentiary support.
67
When does the Rule 11 certification end?
It doesn't. It's a continuing certification every time you present a position to the court.
68
What is the penalty for violating Rule 11?
Sanctions may be ordered against attorney, firm, or party. The court must give a chance to be heard before imposing sanctions. The goal of sanctions is deterrence not punishment.
69
When can a party move for sanctions once Rule 11 has been violated?
You must serve a motion on parties but can't file it. Opposing party gets a 21 day safe harbor to correct the violation and avoid sanctions.
70
Does one of the parties have to file for Rule 11 sanctions?
No the court can issue an "order to show cause" sua sponte requiring a party to show why sanctions should not be imposed.
71
What is the complaint?
The document that commences an action once filed.
72
What must the complaint contain?
(1) Statement of grounds of SMJ; (2) short and plain statement of the claim showing P is entitled to relief; (3) Demand for relief sought.
73
What is a short and plain statement of the claim?
Must plead facts supporting a plausible claim. To determine plausibility, judge uses experience and common sense.
74
What matters must be pled with particularity or specificity?
Fraud, mistake, or special damages (damages not ordinarily flowing from an event).
75
How must a D respond to the complaint?
Rule 12 gives two options. By motion or by answer, but must be w/in 21 days after service of process (if you waived service, you get 60 days from when P mailed the waiver form).
76
What are the Rule 12 Motions for issues of form?
(1) motion for more definite statement i.e. pleading too vague for D to frame a response; (2) motion to strike aimed at immaterial things.
77
What are the Rule 12(b) Defenses (which can be raised by motion or answer)?
1) lack of SMJ; 2) lack of PJ; 3) improper venue; 4) insufficiency of process; 5) insufficient service of process; 6) failure to state a claim; 7) failure to join an indispensable party.
78
Which of the 12(b) defenses are waivable?
Lack of PJ, venue, insufficiency of process and insufficient service of process must be put in the first Rule 12 response or they are waived.
79
If it's not a waivable defense, what is the deadline for bringing a 12(b) defense?
Indispensible party and failure to state a claim may be brought anytime through the end of trial. Lack of SMJ may be brought anytime--even after trial.
80
What is an answer?
A pleading served w/in 21 days after service of process that responds to the allegations of the complaint by admitting, denying or stating that you lack sufficient info to admit, or deny (acts as a denial). If you do not deny, construe as an admission.
81
What else must you do in the answer?
Raise affirmative defenses that inject new facts into the case that allow D to win (i.e. SOL, statute of frauds, res judicata). YOU MUST PLEAD AFFIRMATIVE DEFENSES OR YOU RISK WAIVER.
82
What is a counterclaim?
A claim against opposing party that is part of D's answer. Two types: compulsory and permissive.
83
What is a compulsory counterclaim?
A claim arising from the same T/O as P's claim. You must file in the pending case or you waive. BUT if you did not have to answer (i.e. won a motion to dismiss), you didn't have to counterclaim.
84
What is a permissive counterclaim?
A claim that does not arise from the same T/O as P's claim that may be filed with answer or may be asserted in a separate case.
85
If you are in federal court and bring a counterclaim that is valid, what must you also assess?
If there is SMJ.
86
What is a crossclaim?
A claim against a co-party that arises from the same T/O as the underlying action. These are NEVER compulsory.
87
Once you file a counterclaim or crossclaim, can you join any other claim to it?
Yes if you can get SMJ by diversity, FQ or supplemental jurisdiction.
88
When do parties have the right to amend pleadings?
P has the right to amend once w/in 21 days after D served her first Rule 12 response. D has a right to amend once w/in 21 days of serving answer.
89
What do you have to do when there is no right to amend the pleadings?
Seek leave of court, which will grant motion to amend if "justice so requires." Court will look at 1) delay, 2) prejudice, and 3) futility of amendment. If not one of these, amendment allowed usually.
90
What is a variance?
Where evidence at trial does not match what was pleaded. If D objects to evidence, evidence of claim not alleged is inadmissible; If D does not object, P may move to amend to bring pleadings into line with evidence presented.
91
What is the relation back rule?
Amended pleadings relate back if they concern the same conduct, transaction or occurrence as the original pleading (avoids SOL problems).
92
What are the required discovery disclosures?
(1) Initial disclosures IDing persons or documents "likely to have discoverable info that the disclosing party may use to support claims or defenses"; (2) experts that may be used at trial and documents relevant to expert's opinions; (3) 30 days before trial must give info about trial evidence, incl docs and ID Ws who will testify.
93
What are the discovery tools and when may they be used?
Depositions, interrogatories, requests to produce, physical or mental examination, or requests for admission. May be used after the Rule 26f conference.
94
What discovery tools can be used to get info from non-parties?
Depositions, requests to produce. Often need to get a subpeona though.
95
What is a deposition?
Deponent gives sworn oral answers to questions by counsel and it is recorded.
96
Who can you depose?
A party or non-party, but a non-party must be subpeonaed or not compelled to attend (may be duces tecum and require deponent bring material). A party need only receive notice, properly served, to compel attendance.
97
What are the rules about depositions?
Can't take more than 10 or depose same person twice (1 day, 7 hour deposition); depositions may be used at trial; non-party can't be required to travel more than 100 miles.
98
What is an interrogatory?
Questions in writing to another party answered in writing under oath. Must be answered in 30 days. Limit 25.
99
What is a request to produce?
Request to another party or a non-party if accompanied by a subpeona requesting that she make available for review and copying various documents or things.
100
What is a physical or mental exam?
Only available through court order on showing that party's health is in actual controversy and "good cause." Worry = harassment.
101
What is a request for admission?
A request by one party to another party to admit the truth of any discoverable matters. Often used to authenticate documents.
102
What are the signing requirements for discovery requests?
Parties sign substantive answers to discovery under oath. Every discovery request and response is signed by counsel certifying 1) it's warranted, 2) not interposed for improper purpose, and 3) is not unduly burdensome.
103
What is the duty to supplement discovery?
If you learn that your response to a required disclosure, interrogatory, request for production, or request for admission is now incomplete or incorrect, you must supplement your answer. The duty is ongoing.
104
What is the scope of what you can discover?
Anything relevant to a claim or defense.
105
What is "relevant" to a claim or defense?
Anything "reasonably calculated to lead to the discovery of admissible evidence." This is broader than admissibility, which is not the test. LIMIT: can't discover things that are privileged.
106
What is work product?
Any trial prep materials are protected from discovery.
107
What kinds of documents get absolute work product protections?
Mental impressions, opinions, conclusions, and legal theories.
108
When might you be able to discover something that is otherwise work product?
When there is substantial need AND the information is not otherwise available.
109
How do you claim privilege or work product?
Keep a privilege log claiming the privilege expressly and particularly describing the materials.
110
What if you inadvertently produce protected material?
Notify party as soon as possible. Other party must return, sequester, or destroy it pending decision by the court about whether there has been waiver.
111
How are discovery rules enforced?
1) Protective order claiming request overburdensome and want order limiting disclosure; 2) Partial response answering some and objecting to others (if objection not upheld this is partial violation); 3) No response is a total violation.
112
How can you get sanctions for discovery failures?
Party seeking sanctions must certify that she tried in GF to get info w/o court involvement.
113
Can you get sanctions if there's a partial violation?
Yes. First move for an order compelling party to answer the unanswered questions plus costs of bringing motion. Second, if party violates order compelling answer, RAMBO sanctions and possible contempt of court.
114
Can you get sanctions if there's no response?
YES! RAMBO plus costs.
115
What are RAMBO sanctions?
Establishment order, strike pleadings of the disobedient party, disallow evidence form the disobedient party, dismiss P's case if bad faith shown, or enter default judgment against D.
116
Who are the proper parties?
Those whose claims (1) arise from same T/O AND (2) raise at least one common question AND (3) structured to satisfy SMJ.
117
Which parties are necessary?
Anyone who meets one of the following tests: (1) w/o X, court can't accord complete relief among existing parties; (2) X's interest may be harmed if not joined; (3) X claims an interest which subjects a party to multiple obligations.
118
When you have a necessary party, how do you know if joinder is "feasible"?
1) Is there PJ and 2) will joinder leave diversity intact.
119
What if a necessary party cannot be joined?
Court may 1) proceed w/o you or 2) dismiss the whole case. Must look at whether an alternative forum is available, the actual likelihood of harm, and whether the court can shape relief to avoid the potential harm (not clear how to weigh these).
120
What do we call the absentee necessary party if the court decides to dismiss?
Indispensable.
121
What's the C-I mnemonic for joinder rules?
Rules that start with C, i.e. counter- or crossclaim, are claims between present parties. Claims that start with I involve joining someone new to the case.
122
What is impleader?
A defending party wants to bring in someone new as a third party defendant in claims like indemnity and contribution because TPD may be liable to D for P's claim.
123
How do you implead a third party?
Right to implead w/in 14 days after serving answer. D must 1) file third party complaint naming X as a TPD and 2) serve process on TPD and 3) make sure we have SMJ.
124
After TPD is impleaded who can assert claims?
P can assert claims against TPD and vice versa if claims arise from same T/O as the underlying case.
125
What is intervention?
Absentee wants to join a pending suit as a P or D. Application must be "timely." Must assess SMJ.
126
What is intervention of right?
A's interest may be harmed if she is not joined and her interest is not adequately represented.
127
What is permissive intervention?
A's claim or defense and the pending case have at least one common question. Court discretion, but usually okay unless there's delay and prejudice.
128
What is interpleader?
Someone holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency.
129
What are the parties called in interpleader?
The party with the property is called the stakeholder. Folks who want it are called claimants.
130
What are the two kinds of interpleader?
Rule 22 and statutory. Both require that we're trying to determine who really owns the land while avoiding multiple liability or suits. BUT they have different diversity standards, amounts in controversy, venue, and service requirements.
131
What is a class action?
A Rep sues on behalf of class members.
132
What are the initial requirements for class action?
NCTR. Numerousity (too many for practicable joinder, no magic number); Commonality (some issue in common that requires COMMON ANSWERS); Typicality (Rep's claims typical of class); Representative is adequate to rep class.
133
What are the three types of class action claims?
(1) Prejudice i.e. class treatment necessary to avoid harm to class or party opposing class (rare); (2) Injunction or declaratory judgment sought because class was treated alike by other party (emp. discrim); (3) Damages i.e. common Qs predominate and class action is best method (mass tort).
134
What must the court do to allow the class action to proceed?
It must certify the class by defining the class and the class claims, issues, or defenses AND the court must appoint counsel.
135
Which type of class action is most likely?
Damages i.e. mass tort.
136
What is damages class action the most likely?
Court must notify class members they are in the class via individual notice. Notice tells members 1) they can opt out, 2) they'll be bound if they do not, and 3) they can enter a separate appearance through counsel. Notice not required for other types of class action.
137
Who pays to give notice to class members?
The representative.
138
Who is bound by the class judgment?
All class members except those who opt out of a damages class action.
139
Can the parties dismiss or settle a certified class action?
Only with court approval. Court will give notice of proposed settlement to class members to get their feedback about whether the case should be settled or dismissed.
140
When do you have SMJ for a class action?
1) The claim invokes a FQ, or 2) the Rep's claim exceeds the $75K amount in controversy requirement and the Rep's citizenship satisfies diversity requirements.
141
How does the Class Action Fairness Act change the diversity requirements for class actions?
It allows federal courts to hear a class action of at least 100 members if any class member is of diverse citizenship from any defendant and the aggregated claims of the class exceed $5M.
142
What is voluntary dismissal?
Usually P has a right to dismiss by filing a written notice of dismissal. Dismissal is w/o prejudice if motion is before D serves answer or motion for SJ. If P refiles and wants to voluntarily dismiss against, claim is dismissed with prejudice.
143
What is default?
Notation by the clerk. Claimant gets a default by showing the clerk that D failed to respond w/in 21 days after being served process.
144
What does a default mean?
Not much. But it means P can go for a default judgment that might allow them to recover.
145
How can you get a default judgment?
D made no response at all, claim itself is for a sum certain in money, claimant gives an affidavit of the sum owed, and D is not a minor or incompetent.
146
What is a default judgment?
Can't exceed what claimant demanded in complaint or be a different kind of relief.
147
Can D overcome a default?
Yes. By showing of good cause (usually excusable neglect) and a viable defense.
148
What is 12b6 failure to state a claim?
Tests sufficiency of P's allegations and ignores legal conclusions. Ask: if what P says is true, would she win a judgment? If no, no sense in proceeding because law doesn't recognize a claim on the facts. MUST BE A PLAUSIBLE CLAIM based on judicial exp and common sense.
149
What does a court look at in ruling on a 12b6 motion?
The face of complaint NOT evidence.
150
What if D brings a 12b6 motion after D has answered, what is the name?
Motion for judgment on the pleadings.
151
What is a Rule 56 summary judgment motion?
Must show 1) no genuine dispute on a material fact and 2) moving party is entitled to JML. Must be brought no later than 30 days after close of discovery.
152
What can the court do in reviewing a motion for summary judgment?
Even if the standard is met construing evidence in light most favorable to nonmoving party, the court always has discretion. The court may also look at the evidence, including affidavits or declarations that are under oath.
153
Summary judgment weeds out cases where we don't need a trial. How?
Trial resolves disputes of fact. If at SJ there is no dispute of fact, SJ granted.
154
In reviewing a motion for SJ, what may the court not rely on?
Pleadings because they are not evidence (unless they are verified and under oath which is very rare). Pleadings are relevant when D failed to deny an allegation, allowing the court to treat this as a fact on SJ.
155
What about video evidence and SJ?
If an authenticated video tape completely discredits P's version of the facts, the court can ignore P's affidavit and grant SJ.
156
What is a rule 26f conference?
At least 21 days before scheduling conference, parties discuss claims, defenses, and settlement. They also must form a discovery plan and present it to the court in writing w/in 14 days.
157
What is a scheduling order?
Court cut-offs for joinder, amendment, motions, etc.
158
What is a pretrial conference?
Court may hold to process the case and foster settlement. They determine the issues to be tried and evidence to be proffered. It is recorded the pretrial conference order, which supersedes the pleadings.
159
When do you have the right to a jury trial?
7th Am right to jury in civil actions at law but not suits in equity.
160
Can you have a jury in a suit at law and equity?
Yes. To decide facts underlying the damages claim. Jury issues are tried first and then judge rules on the equity portion.
161
How do you get a jury trial?
Must demand it in writing no later than 14 days after service of the last pleading raising jury triable issue.
162
In voir dire, how can you strike jurors?
For cause (no limit: bias, prejudice, or related to a party) or peremptory strikes applied in a neutral way (because jury selection is state action).
163
How many jurors do we need?
6. Verdict cannot be taken from fewer than 6 and no more than 12. No alternates and all must participate unless excused for good cause.
164
What is judgment as a matter of law?
Exceptional. Takes case away from jury if court finds reasonable people could not disagree on the result. Can only be brought after the other side has been heard at trial.
165
What is a renewed judgment as a matter of law?
Must move for JMOL at a proper time at trial. If judge did not grant, case went to jury, and jury comes out "wrong," judge may grant RJMOL and enter a verdict for the party that lost the jury verdict. Must move w/in 28 days after entry of judgment.
166
What is a motion for a new trial?
Something happened that makes the judge think the parties should start over and re-try the case. Move w/in 28 days after judgment. Less drastic that RJMOL.
167
What are the grounds for a motion for a new trial?
1) Prejudicial error, 2) new evidence that couldn't have been brought at first trial, 3) prejudicial misconduct of a party, attorney, 3d party, or juror, 4) judgment against the weight of the evidence, 5) excessive or inadequate damages.
168
What are the grounds and timing for a motion to set aside the judgment?
1) clerical error brought anytime; 2) mistake or excusable neglect brought w/in reasonable time never more than a year; 3) new evidence brought w/in reasonable time never more than a year; 4) judgment is void bc no SMJ brought w/in reasonable time (no max).
169
What is appellate review?
Losing party wants COA to review what federal district court did.
170
What is the final judgment rule?
Right to appeal only from final judgment i.e. ultimate decision by trial court of the merits of the entire case. File notice of appeal in trial court w/in 30 days after entry of final judgment.
171
How do we know if a judgment is final?
After making the order, does trial judge have anything left to do on the merits of the case? If yes, not final.
172
What are the exceptions to the final judgment rule?
Interlocutory orders reviewable as of right, Interlocutory Appeals Act, Collateral order exception, final judgment as to one issue in a case if judge certifies, extraordinary writ, class action.
173
What are interlocutory orders reviewable as of right?
Orders granting, modifying, refusing, etc., injunctions, appointing, refusing to appoint receivers; findings of patent infringement where only accounting is left to be accomplished at trial; orders affecting the possession of property.
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What does the interlocutory appeals act allow?
Appeal of non-final order if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and the court of appeals agrees to hear.
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What is the collateral order exception?
Appellate court discretion to hear ruling on an issue if 1) distinct from merits of case, 2) involves an important legal Q, 3) is essentially unreviewable if parties must await final judgment.
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What is the class action exception to the final judgment rule?
Court of appeals has discretion to review order granting or denying certification of class action. Must seek review at COA w/in 14 days of order. Appeal doesn't stay proceedings at trial court unless trial judge or court of appeals so orders.
