Final

Question 1

Right to Jury Trial - 7th Amendment - Right to jury in Civil Trial / Federal Ct
- Two Part Test

Answer 1

1) History

2) Relief Sought

Question 2

Writ of Mandamus

Answer 2

App Ct takes the case from the trial judge + they hear it themselves

Question 3

Interlocutory Appeal

Answer 3

1) During Trial - about a trial judge’s decision
2) Trial Judge certifies for the interlocutory appeal

(1292)

Question 4

Rule 64. Seizing a Person or Property

Answer 4

(a) Remedies Under State Law— provides for seizing a person or property to secure satisfaction of the potential judgment.
- But a federal statute governs to the extent it applies.

Question 5

R 64 Seizure Remedies

Answer 5

(b) Specific Kinds of Remedies. The remedies available under this rule include the following—however designated and regardless of whether state procedure requires an independent action:
• arrest;
• attachment; = seized to prevent def from disposing
• garnishment; = def assets in possession of 3rd party are turned over to satisfy the debt
• replevin; = wrongfully taken or held property is turned over to Plaintiff pending resolution of the ownership dispute
• sequestration; ownership disputed - taken from the possessor and held by 3rd party pending resolution of the ownership

Question 6

Procedural Due Process

Answer 6

Gov’t cannot deprive of Life, Liberty, or Property w/o Due process of Law
Need = Notice + Hearing
-An opportunity to be heard ‘at a meaningful time and in a meaningful manner.

Question 7

Three Part Test (Eldridge) - Deprivation Prior to Hearing / Procedural Due Process

Answer 7

a. What’s the private interest at Stake affected by the prejudgment measure - is it important?

b. Risk of Erroneous deprivation through current procedures
vs. value of additional safeguards?

c. Gov’t interests in providing the procedure or forgoing burden of greater protections vs. interest to the party seeking the personal remedy ?

Question 8

2 Kinds of Provisional Remedies

Answer 8

1. TRO

2. Preliminary Injunction

Question 9

Provisional Remedy - TRO - Standards to grant

Answer 9

1. Immediate / irreparable harm

2. Why the other party should NOT get notice

Question 10

Provisional Remedies:
Preliminary Injunction
(4 things + notice)

Answer 10

a. Is it likely to succeed on the merits ?
b. Irreparable harm in the absence of preliminary relief?
c. Balance of equities tip in your favor / fairness to each side
d. Is the injunction in the public Interest?
e. Notice

Question 11

Where / When can you appeal ?

- After the Final Judgement Rule

Answer 11

§ 1291. Final decisions of district courts
- The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States

Question 12

28 U.S. Code § 1292

Answer 12

Interlocutory decisions

- Nothing left to decide at the trial level

Question 13

2 ways to Appeal in the Middle of a Case

Answer 13

1. Interlocutory 28 U.S. Code § 1292(b)

2. Writ of Mandamus

Question 14

Interlocutory 28 U.S. Code § 1292(b)

3 Elements

Answer 14

1. The order contains a controlling question of law
2. There is substantial ground for difference of opinion of that question
3. An immediate appeal from the order may materially advance the termination of the litigation

Question 15

Writ of Mandamus - (3 Elements)

Answer 15

1. extraordinary writ petitioning the appeals court to for an order directing the trial judge to withdraw the contested order
2. An equitable remedy having the same ultimate effect - reversal of the trial court’s order
3. The appeals court takes the case from the trial court - it has discretion to hear it or not

Question 16

3 Standards of Review

Answer 16

1) De Novo - No deference to the trial court
2) Clear Error When judges make factual decisions of any kind in order to rule on motions
3) Abuse of Discretion - Most deferential rational basis for the decision then it’s ok

Question 17

Claim Preclusion

3 ELEMENTS:

Answer 17

1) Prior action concluded in a valid final judgement on the merits
2) Claim in the subsequent action must be the same as the claim that was raised, or should / could have been raised (STOO)
3) The parties in the subsequent action must be the identical to (or in privity to) the first action

Question 18

Claim Preclusion

Non-Party Preclusion - Privity (6 ways)

Answer 18

1) Agrees to be bound by the determination of issues between other parties
2) Substantive Legal Relationships - property law; subsequent owners
3) Adequately represented party by someone w/ same interest who was a party - class actions, trustees,
4) If Non-party Assumed Control over the litigation;
5) Non-party brings suit as the Designated Representative of a person who was a party
6) Special Statutory Scheme may foreclose; bankruptcy and probate

Question 19

Restatement § 41 - Person Represented by a Party.

Answer 19

(a) The trustee of an estate or interest of which the person is a beneficiary; or
(b) Invested by the person with authority to represent him in an action; or
(c) The executor, administrator, guardian,etc of an interest of which the person is a beneficiary; or
(d) An official or agency invested by law with authority to represent the person’s interests; or
(e) The representative of a class of persons similarly situated, designated as such with the approval of the court, of which the person is a member.

Question 20

28 U.S. Code § 1738 - Full Faith and Credit Act

Answer 20

1) So = Same effect of court decision across state lines

2) So if Claim Preclusion in one court then it is precluded in other courts

Question 21

Issue Preclusion

4 Elements

Answer 21

i. The issue to be precluded subsequent litigation must be the same issue that was raised in prior litigation and resulted in a valid final judgement
ii. The issue must have been actually litigated and determined in the first case
iii. The resolution of the issue must have been necessary to the final judgement in the initial action
iv. Must involve the same parties or been in privity

Question 22

Non-Mutual Issue Preclusion - Parklane Analysis

Answer 22

“Fairness Factors”to determine validity of the offensive non-mutual collateral estoppel:
1) Could the party trying to assert issue preclusion have intervened in the earlier suit?

2) Did defendant have incentive to litigate the first action?
3) Are there multiple, prior inconsistent judgments?
4) Are there any procedural opportunities available to defendant in the second suit that were not available in the first suit?