Final Fill in the Blank Flashcards
1
Q
Personal jurisdiction requires that the defendant be ______ to the forum state’s jurisdiction, and that the defendant be ______________.
A
amenable, served with proper notice
2
Q
Amenability to personal jurisdiction is governed by the _______, subject to the limits of the _______ of the United States Constitution.
A
forum state’s law, due process clause
3
Q
Pennoyer v. Neff described three bases for state jurisdiction over persons and things. Theyare
a. ________: jurisdiction over the person
b. ________: jurisdiction over interests in property
c. ________: jurisdiction over seized property, where plaintiff’s claim is unrelated to the seized property.
A
In personam, In rem, Quasi in rem
4
Q
Pennoyer based its jurisdictional formula on ______ over persons and property within its borders.
A
state power
5
Q
Under Pennoyer’s in personam jurisdiction, a judgment in plaintiff’s favor
—would be _____ in all states
—for the _____ of damages
—may be _______ until fully collected
A
binding in all states , full amount of damages, enforced repeatedly until fully collected
6
Q
Under Pennoyer’s in rem jurisdiction, a judgment in favor of plaintiff
—affects ________ in a res (both _____ and _____ to the lawsuit)
—does not result in a ___________
— does not require ______ outside the forum
A
everyone’s interests, parties, nonparties
money judgment
enforcement
7
Q
Under Pennoyer’s quasi in rem jurisdiction, a judgment in plaintiff’s favor:
—entitles plaintiff to the ____________________
—is not a _________
—is not __________________
—may not be enforced ____________
—may not be enforced ____________
A
property attached for jurisdiction, personal judgment enforceable against any other property more than once outside the forum
8
Q
Another type of jurisdiction not discussed in Pennoyer is ______, which involves the state’s authority to adjudicate such matters as divorce, adoption, citizenship and mental competence.
A
status
9
Q
__________________ altered Pennoyer’s rule for personal jurisdiction, replacing the concept of ________ with the new standards of _________ and ________ provided by the “minimum contacts test.”
A
International Shoe Co. v. Washington
state power
reasonableness
fairness
10
Q
The current test for amenability, following International Shoe and other cases, does not require the minimum contacts test if the defendant satisfies any one of the four “traditional” bases for in personam jurisdiction. Those bases are: \_\_\_\_\_\_ in the forum state \_\_\_\_\_\_ to jurisdiction \_\_\_\_\_\_ of objection to jurisdiction \_\_\_\_\_\_\_\_\_ in the forum when served
A
Residence in the forum state
Consent to jurisdiction
Waiver of objection to jurisdiction
Physical presence in the forum when served
11
Q
Consent to jurisdiction has two forms, _______ and _______. ________ are an example of express consent, and ___________ are an example of implied consent.
A
express consent and implied consent
Forum selection clauses
non-resident motorists statutes
12
Q
If none of the traditional bases are present, a state may only exercise in personam jurisdiction over defendants who have minimum contacts with the state. The two categories of minimum contacts are ________ and ___________
A
specific jurisdiction and general jurisdiction.
13
Q
___________ is where the lawsuit arises from or relates to the nonresident defendant’s contacts with the forum state. ___________ is where the lawsuit is unrelated to the nonresident defendant’s contacts with the forum state.
A
Specific jurisdiction
General jurisdiction
14
Q
Specific jurisdiction has four contacts tests, which are that the defendant
a. _________ itself of the benefits and protections of forum law;
b. should have _______ that its activity would subject it to jurisdiction in the forum state;
c. could __________ being haled into court in the forum state;
d. placed its product in the __________ and could foresee that it would be used in the forum state.
A
purposefully availed
foreseen
reasonably anticipate
stream of commerce
15
Q
General jurisdiction has one contact test, which is that it has ___________ with the forum state.
A
continuous and systematic contacts
16
Q
If the defendant has no contacts with the forum (and does not meet one of the four traditional bases of jurisdiction), then there is ___________ over that defendant. If, on the other hand, defendant does have specific or general contacts, then the court must consider the ___________ test. This is a ________ test with five factors, which are:
—______________
—________ interest in convenient and effective relief
—______________
—the _______________ in furthering fundamental social policies
—the _______________ in effective resolution of controversies
A
no personal jurisdiction
fair play and substantial justice
balancing
burden on the defendant plaintiff’s the forum state’s interest shared interests of several states judicial system’s interest
17
Q
The due process requirement for notice to defendant is stated in Mullane v. Central Hanover. Notice is constitutionally sufficient if it is “____________, under all circumstances, to apprise ________ parties of the pendency of the action, and afford them an __________ and __________.”
A
reasonably calculated
interested
opportunity to appear
present objections
18
Q
An abbreviated version of the Mullane notice rule is that _________ requires ______ and an ____________.
A
due process
notice
opportunity to be heard
19
Q
Which rule of the Federal Rules of Civil Procedure deals with initially notifying the defendant of the lawsuit? _____
A
Rule 4
20
Q
Under Fed. R. Civ. P. 4, the two primary methods for service of process on a competent adult are:
a. ___________ to defendant;
b. leaving copies at ___________ with a person of ____________
A
personal delivery
defendant’s residence
suitable age and discretion.
21
Q
In most cases, the federal method of service on defendants outside the district is by the ________ statute of the state in which the federal court sits.
A
long-arm
22
Q
The purposes of venue rules are:
(a) ________ to defendant
(b) __________ of caseload within the forum state
A
fairness
geographic allocation
23
Q
The federal statute for general venue provisions is __________
A
28 U.S.C. 1391.
24
Q
The purpose of forum non conveniens is to move _______________________________________
A
cases from one forum to another based on fairness and convenience.
25
Subject matter jurisdiction refers to the court's authority to adjudicate based on the _____________ and in some cases, ________________________.
type of case
| the dollar amount in controversy
26
Federal courts have subject matter jurisdiction over two types of cases: ________;__________
—federal question
| —diversity of citizenship
27
The statute dealing with general federal question jurisdiction is _______________. It provides that federal courts have jurisdiction over any _______________________________
28 U.S.C. § 1331
| case or controversy arising under the Constitution, laws, or treaties of the United States.
28
In addition to the general federal question provisions in 28 U.S.C. § 1331, there are specific statutes on federal question jurisdiction, including actions against (name three):
foreign states, admiralty, patents, civil rights, consuls, internal revenue, and United States as plaintiff or defendant.
29
Diversity jurisdiction is covered by ______________. That statute provides that federal courts have subject matter jurisdiction over claims between _________________, or between __________ and ___________, where the amount in controversy ______________.
28 U.S.C. § 1332
citizens of different states
state citizens and foreign citizens
exceeds $75000
30
Although the Constitution requires only _____________, 28 U.S.C. § 1332 requires ___________ diversity. This means that all plaintiffs must have different citizenship than all defendants.
partial diversity
| complete
31
For diversity purposes, a corporation has two citizenships, which are:
a. ______________
b. ______________
state of incorporation
| principal place of business
32
For diversity purposes, partnerships have the citizenship of ______________.
all the partners
33
The amount in controversy is determined by plaintiff's __________________.
good faith pleading
34
In achieving the amount in controversy, may Plaintiff aggregate (answer "yes" or "no"):
a. all of Plaintiff's claims against one defendant?
b. alternate theories of recovery for the same wrong?
c. claims of different plaintiffs?
d. claims against different defendants?
Yes
No
No
No
35
In some cases, a related claim that lacks diversity or federal question jurisdiction may be included. This is called _______________.
supplemental jurisdiction
36
Federal courts traditionally abstain from _________, _________ and _____________.
family law, probate and state criminal proceedings.
37
If plaintiff has filed his action in state court, and jurisdiction is proper in federal court, defendant may remove the case to federal court. This is done by filing a _____________ in federal court, attaching a copy of ___________ and _________ to the state court and all parties.
Notice of Removal
all state court pleadings
giving notice
38
If there is a ____________ defect in the removal, the case must be remanded to state court no matter when the objection is made.
jurisdictional
39
If there is a ___________ defect in the removal, the case must be remanded to state court if ______________________.
procedural
| a proper and timely objection is filed.
40
State court subject matter jurisdiction is governed by ____________.
state law
41
In state courts, subject matter jurisdiction is designated by ___________ and/or _____________.
type of case
| dollar amount
42
In Texas, state district courts have ______________ over all claims of __________ or more in controversy.
general jurisdiction
| $500
43
Federal courts have ___________ jurisdiction over patent claims. Federal and state court share ___________ jurisdiction over _______________.
exclusive
concurrent
federal civil rights actions
44
A court has _________ jurisdiction if it is the required forum at the beginning of the case. A court has __________ jurisdiction if it may adjudicate a case only after it has been heard in a lower court.
original
| appellate
45
A Texas state district court has _______ jurisdiction over any dispute involving $500 or more, and _________ jurisdiction over appeals from Texas state agency decisions.
original
| appellate
46
A federal district (trial) court has ________ jurisdiction over appeals from federal administrative agency decisions.
appellate
47
The United States Supreme Court has __________ jurisdiction over disputes between states.
original
48
The Rules of Decision Act provides that "the ______________, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as ____________ in civil actions in the courts of the United States, in cases where they apply."
laws of the several states
| rules of decision
49
__________ interpreted the Rules of Decision Act to require federal courts to apply the ______________ in cases where state law applied.
Swift v. Tyson
| general American common law
50
________________ reversed Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply _________________________________.
Erie Railroad Co. v. Tompkins
| the law of the state in which that federal court sits.
51
_________________ coined the “outcome determinative test,” which provides that the ______ Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.
Guaranty Trust v. York
| Erie Doctrine
52
______________ modified the_______________, holding that the court should _______________ in the case to determine which interests were stronger. _____ further held that one factor of the balancing test is whether the state law in question is _____________ outcome determinative. Thus, _______ gives more importance to state laws that absolutely change the outcome of the case.
```
Byrd v. Blue Ridge
outcome determinative test
balance state and federal interests
Byrd
absolutely or definitively
Byrd
```
53
To determine the content of state law in federal court, the Erie Doctrine directs that the court look to _________ and ____________________. Persuasive (but not binding) authority is found in ______________ and __________________. Erie also allows courts to make an __________________ as to state law.
```
state statutes
decisions from the state's highest court
lower state appellate courts
federal court opinions on state law
educated guess
```
54
The Rules Enabling Act (28 U.S.C. § 2072) provides the United States Supreme Court may enact the ___________________________, provided that no rule may _________________ any substantive right.
Federal Rules of Civil Procedure
| abridge, enlarge or modify
55
The most prominent Rules Enabling case is ________________, which resolves the conflict between the Rules Enabling Act and the ______________.
Hanna v. Plumer
| Erie Doctrine
56
_________ v. Plumer also provides the current version of the ____ Doctrine, holding that if there is no __________________ on point, then apply the Byrd test subject to the __________.
Hanna
Erie
Federal Rule of Civil Procedure
twin aims of Erie
57
Choice of law is the process by which courts deter mine which __________________ law will be applied in a case.
state’s or nation’s
58
Choice of law rules may be ____________ or ___________.
statutory
| common law
59
One example of a choice of law statute is Texas Civil Practice and Remedies Code § 71.031, which provides that in wrongful death actions the law of the state _____________ will govern.
where the death occurred
60
One example of a common law choice of law rule is the Texas case of Duncan v. Cessna, which holds that Texas courts will use the ____________________ to choose the governing law. This rule applies except where there is a __________________, or where the action is based on contract that contains a __________________.
“most significant relationship test”
statutory choice of law rule
valid choice of law clause
61
In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules of _______________________.
the state in which the federal court sits.
62
In federal court, Plaintiff's initial pleading is called a _________. It must contain:
a. an allegation of ___________________
b. a short and plain ______________ showing that the pleader is ________________
c. a demand for _______________
```
complaint
subject matter jurisdiction
statement of the claim
entitled to relief
judgment
```
63
In federal court, defendant's answer must respond to each paragraph of plaintiff's complaint with one of the following:
a. ___________
b. ___________
c. statement that defendant _____________________________
admission
denial
lacks sufficient knowledge to respond
64
In addition to the foregoing, defendant may plead affirmative defenses. If defendant fails to plead these, they are waived. Name three examples:
```
— contributory negligence
— assumption of risk
— fraud
— statute of limitations
— discharge in bankruptcy
— estoppel
— failure of consideration
— payment
— release
— res judicata
— statute of frauds
```
65
F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a _______________, and that the pleading is (1) not being presented for any ______________; (2) ______________ or a _____________ for the extension, modification, or reversal of existing law or the establishment of new law; (3) supported by _________, or will likely be after a reasonable opportunity for discovery. _____________ must be warranted on the evidence or based on a reasonable lack of information or belief.
```
reasonable inquiry
improper purpose
warranted by existing law
non frivolous argument
evidence
Fact denials
```
66
If plaintiff's initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a ________________ under F.R.C.P. 12(e). This must be filed __________ the Answer.
Motion for More Definite Statement
| before
67
Defendant may use a ____________________ under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.
Motion to Strike
68
Defendant should always challenge plaintiff's Complaint by a _____________________, under F.R.C.P. 12(b)(6). This allows the court to test the _______________ of plaintiff's claim.
Motion to Dismiss for Failure to State a Claim
| legal sufficiency
69
Defendant may challenge ___________________ at any time. Defendant must challenge ___________ and __________ at the first opportunity or waive them.
subject matter jurisdiction
| personal jurisdiction and venue
70
Two types of counterclaim are ___________ and __________. A ____________ counterclaim is one related to plaintiff's claim. If it is not asserted, it is ________.
compulsory and permissive
compulsory
waived
71
A third party claim is one brought by a defendant against a ____________. It is based on ___________ liability. ___________ may also bring a third party claim in defense of a counterclaim.
new party
derivative
Plaintiff
72
Pleadings may be amended to add new ______________, and _________ or ___________.
factual allegations
| new claims or causes of action.
73
If a pleading adds a new claim that is barred by the statute of limitations, that new claim will be allowed if it is related to the original claim and if the new claim would have been timely if filed with the original claim. This is the _________________ in Fed. R. Civ. P. 15(c).
“doctrine of relation back”
74
The doctrine of relation back also allows a plain tiff to add a new defendant after the statute of limitations has run if the ________________ in Rule 15(c) is satisfied.
balancing test
75
If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff's _________________________.
Motion for Trial Amendment.
76
One exception to the liberal federal pleading rule (“short plain statement of the claim”) is that allegations of _______ must be plead with particularity.
fraud
77
Until recently, most state courts used code pleading, which required plaintiff to plead __________ relating to every element of his claim.
ultimate facts
78
Many states have abandoned code pleading, replacing it with __________ pleading requirements based on the _____________________.
notice
| Federal Rules of Civil Procedure
79
Texas still requires plaintiff to plead _____________. However, it may not be necessary in each case to plead every _________.
causes of action
| element
80
Many state courts still permit a __________, with which defendant challenges the ___________ of plaintiff's claim. This is similar to F.R.C.P. 12(b)(6) Motion to Dismiss for Failure to State a Claim. Texas does not permit a _________.
demurrer
legal sufficiency
demurrer
81
F.R.C.P. 13(a) requires defendant to assert any opposing claim against plaintiff that ___________________ that is the subject matter of plaintiff's claim. This is known as a _______________. If defendant fails to assert such a claim, he is ___________ from raising the same claim in a later lawsuit.
Exceptions to the requirement of asserting the claims discussed in the preceding question include:
a. where defendant _____________ of plaintiff's claims prior to filing an Answer.
b. where the counterclaim has not _________ or ________.
c. where the counterclaim requires an additional party over whom the court _________________.
d. where the counterclaim is the subject of ________________.
e. where plaintiff's action is not based on ___________ over defendant (i.e. an ______ action).
arises out of the transaction or occurrence
compulsory counterclaim
barred
```
wins a dismissal
arisen or matured
lacks personal jurisdiction
another pending action
personal jurisdiction
in rem
```
82
Permissive joinder allows any party to join ______________ against _______________.
unrelated claims against existing parties.
83
In spite of the liberal rules for permissive joinder, all crossclaims and third party claims must be ____________ the plaintiff's claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an __________ claim .
related to
| unrelated
84
Compulsory parties are those who must be joined if possible. F.R.C.P. 19 addresses this issue in two parts:
a. Rule 19(a) identifies _______________, who must be joined if feasible;
b. Rule 19(b) addresses what must happen when _______________.
required parties
| joiner is not feasible.
85
Two other requirements for naming parties to a lawsuit are:
a. _________
b. _________
a. Real Party in Interest
| b. Capacity
86
Procedural devices for adding multiple parties include:
a. _________________
b. _________________
c. _________________
d. _________________
e. _________________
a. Impleader, or Third Party Action
b. Interpleader
c. Intervention
d. Class Action
e. Shareholders' Derivative Suit
87
The scope of discovery, both in Texas and federal courts, is all matters ___________ that are _________________________________________
“not privileged”
| "reasonably calculated to lead to the discovery of admissible evidence.”
88
```
The forms of discovery are:
1)
2)
3)
4)
5)
6)
7)
```
```
—interrogatories
—requests to produce or inspect
—subpoenas duces tecum
—oral depositions
—written depositions
—physical and mental examinations
—requests for admission
```
89
Privileges shield information from discovery, such as:
1)
2)
3)
Discovery exemptions have a similar effect. These include:
1)
2)
The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are ______.
In addition to waiver, the privileges and exemptions may have exceptions that ______________________.
—attorney-client privilege
—spousal privilege
—doctor-patient privilege
—attorney work product exemption
—client investigatory exemption (in Texas state courts)
waived.
permit or require disclosure.
90
Devices for dismissal include:
a. _________ Dismissal
b. _________ Dismissal for failure to prosecute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense.
c. Dismissal for ___________
Voluntary
Involuntary
Failure to State a Claim
91
A Motion for Judgment on the Pleadings may be filed by __________________. In deciding the motion, the court will look only to the ______________ to determine if that pleading has stated a _________ or _________.
either plaintiff or defendant
nonmovant’s pleadings
claim or defense.
92
F.R.C.P. 56 provides that for summary judgment, the ________ is on the ________ to show that:
a. there is no _______________, and
b. movant is ______________________
burden, movant
genuine issue of material fact
entitled to judgment as a matter of law.
93
One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleadings] is that a summary judgment motion may include ________. In addition, the court is entitled to examine other evidence in the _________, such as discovery on file with the court.
evidence
| court record
94
F.R.C.P. 20 governs permissive joinder of parties. It permits ___________ to join in one lawsuit if
a. each plaintiff asserts any right to relief arising out of the ____________________, _________
b. "any question of __________ common to all these persons will arise in the same action."
Rule 20 also permits ____________ to join ________________ if they meet this test.
multiple plaintiffs
same transaction, occurrence, or series of transactions or occurrences,
AND
law or fact
one or more plaintiffs
multiple defendants
95
For summary judgment under Rule 56(b) (in favor of the party not having the burden of proof at trial), the movant may meet the first part of the burden (no dispute of material fact) by:
a. _________________________
b. _______ portions of nonmovant's essential fact allegations (Adickes)
c. pointing to the record, after a ______________, and alleging that non movant lacks sufficient evidence to support an ____________ of her case, upon which nonmovant has the ______________. (Celotex)
assuming all of nonmovant's fact allegations to be true
negating
reasonable time for discovery
essential element
burden of proof at trial
96
For summary judgment under Rule 56(a) (in favor of the party bearing the burden of proof at trial), the movant must meet the burden of proof by ___________________ of the claim or defense.
offering evidence to establish each element
97
Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden shifts to ___________, who may defeat the motion for summary judgment by:
a. _________________, or
b. _______________________________
nonmovant
creating a fact dispute
showing that the law does not entitle movant to judgment.
98
In deciding the motion for summary judgment, the court must view the evidence in the ________________________.
light most favorable to the nonmovant.
99
To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which _____________________. If reasonable minds could not differ, then there is no fact dispute, and the judge may render summary judgment.
reasonable minds could differ
100
Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is whether there is _____________ to withstand a motion for _____________, that is, sufficient evidence to send the case to a jury.
sufficient evidence
| directed verdict
101
If a party lacks evidence to respond to a motion for summary judgment, that party may seek _____________ under Rule 56(f).
additional time
102
In federal court, the trial issues of law and fact are governed by a ________________. In state courts that do not use a __________, the issues of fact and law are governed by the ________________.
Pretrial Order
| latest pleadings
103
The process of questioning prospective jurors is called ___________.
voir dire.
104
There are two kinds of challenges to prospective jurors:
________________ are based on the court's ruling that reasonable cause exists to excuse that person from jury service based on a possibility of prejudice against one of the parties, or some other bias in the case.
_________________ allow the parties a limited number of "strikes" to excuse prospective jurors for no stated reason.
Challenges for cause
| Peremptory challenges
105
Asking the court to order all witnesses other than parties to leave the room is known as ________________.
invoking the rule.
106
A defendant may move for the _______________ if he has the burden of proof on all the remaining issues.
right to open and close
107
Under the Seventh Amendment to the United States Constitution, all parties have a right to trial by jury in ____________ exceeding ____________ in controversy.
cases at common law
| twenty dollars
108
Parties have no constitutional right to trial by jury in _______ cases. However, the states may grant the right to jury trial in ________ cases.
equity
109
The right to jury trial is presumed to exist under a federal statute unless that statute ______________ the right.
expressly excludes
110
If a party fails to request a jury within the time allowed by ________, the right to jury trial is ______.
forum law
| waived
111
After all evidence and arguments have been presented, the judge describes the applicable law to the jury in ____________. If the judge instructs the jury incorrectly on an issue of law, this is ____________ even though it applies to the jury's function.
jury instructions
| appealable
112
If a jury is not requested, the court conducts a non-jury trial in which the judge becomes _______________.
the trier of law and fact
113
As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that “directed verdict” and “judgment notwithstanding the verdict” are both known as __________________.
“judgment as a matter of law.”
114
In a jury trial, at the close of plaintiff's evidence, defendant may move for a ______________ (the old directed verdict) under Fed. R. Civ. P. 50(a). The judge may grant it if, viewing the evidence ______________________, a reasonable jury could not find for plaintiff.
judgment as a matter of law
| in the light most favorable to the plaintiff
115
The judge should ____ the motion for directed verdict if:
a. a ____________ could find in plaintiff's favor, or
b. the judge wishes to let the case proceed and consider the question later.
deny
| reasonable jury
116
If the motion for judgment as a matter of law (or directed verdict) is denied, defendant presents his case. At the close of defendant's evidence, ________________ may move for judgment as a matter of law, which may be granted if, looking at all the evidence favorable to the _________, and only the unquestionable evidence in __________ favor, a reasonable jury could only find for movant.
plaintiff and defendant
nonmovant
movant’s
117
After the jury has returned its verdict, the losing party may move for ________________ (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within ___ days after entry of judgment. However, movant must have filed a motion for ________________ during the trial as a prerequisite.
judgment as a matter of law
28
judgment as a matter of law
118
After trial, the losing party may file a Motion for New Trial within ___ days after entry of Judgment. The trial judge may grant a new trial on any of the following grounds:
1) _____
2) _______________
3) ______
4) result contrary to the ______________
```
twenty-eight
—trial error
—newly discovered evidence
—misconduct
---great weight of the evidence
```
119
The Court of Appeals may reverse the trial judge's granting of a Motion for New Trial only if there was ________ to support the granting of a new trial.
no evidence
120
Courts may grant a new trial, conditioned on remittitur or additur. _________ orders a new trial unless plaintiff accepts a lesser amount of damages. _______ orders a new trial unless defendant agrees to pay extra damages. Federal law prohibits _______ as a violation of the right to jury trial.
Remittitur
Additur
additur
121
A new trial may be granted for newly discovered evidence if the following conditions are met:
— the new evidence was discovered ____________
— the new evidence was not discoverable by __________ prior to the first trial
—the new evidence is not _____________
—the new evidence will _________________
after the first trial
reasonable diligence
merely cumulative
probably produce a new result
122
An exception to the "reasonable diligence" requirement in the prior question is that even if the new evidence was discoverable by reasonable diligence, a new trial will be granted if to do otherwise would be ___________________.
a grave miscarriage of justice.
123
Under F.R.C.P. 60(a), a party may correct ___________ and other ___________ in a judgment. Under F.R.C.P. 60(b), a party may ask for a new trial based on _____________________.
clerical mistakes
inadvertent errors
newly discovered evidence or fraud.
124
A party may also challenge a final judgment by _____________ alleging ____________ or _____.
filing a new action
newly discovered evidence
fraud
125
Thus there are three methods for challenging a judgment based on newly discovered evidence or fraud:
a. _____________ (Rule 59)
b. _______________ (Rule 60)
c. _________________
One principle difference between these three is the ____ allowed for filing.
Motion for New Trial
Motion for Relief from Judgment
A New Lawsuit
time
126
Appellate courts primarily review ___________. In order to receive appellate review, there must be plain error that was ___________ by a ___________.
questions of law
properly preserved
timely objection
127
Appellant may preserve error by objecting at the time of the error and making known to the court:
a. the __________, or _______________, and
b. the _________ therefor.
action desired
the objection to the action
grounds
128
Appellate courts may also review the jury's decision, but only as to the _______________, which is also a question of _____.
sufficiency of the evidence
| law
129
________ courts may review the trial judge's Findings of Fact in a ________. The standard of review is __________.
Appellate
nonjury trial
clearly erroneous
130
The four procedures for appearing before the Supreme Court are:
a. __________ 28 U.S.C. §§ 1254(1), 1257
b. __________ 28 U.S.C. § 1254(2)
c. _________________ 28 U.S.C. § 1253
d. ____________ U.S. Const., Art. III 28 U.S.C. § 1251
Writ of Certiorari
Certification
Direct Appeal from decisions of three judge courts
Original Jurisdiction
131
Preclusion is the doctrine that limits the relitigation of issues and claims. The two kinds of preclusion are:
—Claim preclusion
| —Issue preclusion
132
Another name for preclusion is __________.
"res judicata."
133
Claim preclusion includes the doctrines of ____ and ____.
merger and bar.
134
Merger applies to judgments for _______. It provides that a ____________ for plaintiff (a) prevents plaintiff from suing again, except in a collection action on the judgment, and (b) bars defendant's defenses in an action on the judgment.’
Plaintiff
| valid and final judgment
135
Bar applies to judgments for __________. It provides that a judgment for defendant _____________ on the same claim.
Defendant
| bars another action by plaintiff
136
The-elements of claim preclusion are:

a. same claim
b. same parties
c. valid and final judgment
137
Claim preclusion does not apply to certain actions, including:
a. Dismissal on grounds of _______,______, or ________.
b. ____________
c. Where preclusion is ____________
d. __________ courts (in some jurisdictions)
jurisdiction, venue, or party joinder
Nonsuit without prejudice
denied by statute
Small Claims
138
Issue preclusion is also known as ________________.
collateral estoppel.
139
Issue preclusion does not apply to whole lawsuits, but to:
a. issues of __________
b. that were _______________
c. that ended in ______________________,
d. where determination of that issue was ________ to the judgment, and
e. where the judgment is ___________________
```
law or fact
actually litigated
a valid and final judgment
essential
binding on the party being estopped
```
140
Issue preclusion no longer requires ___________. This is also known as "offensive collateral estoppel." It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a _____ and (b) had a _________________.
mutuality of parties
party
full and fair opportunity to litigate
141
The Law of the Case Doctrine is another preclusion device that prevents relitigation of the same issues within ________________ prior to final judgment.
the same lawsuit
