Missed questions Flashcards
After final judgment, you can file a motion for relief from judgement based on:
- Mistake, excusable neglect
- Newly discovered evidence that, with reasonable diligence could not have been discovered in time for a new trial
- Fraud, misrepresentation, or misconduct by an opposing party
In civil cases - how long do you have to file an appeal?
30 days after entry of judgment UNLESS motion for relief from judgment
Can you appeal based on relief from judgment if you did not raise it during trial?
Yes —> but must be based on reason such as fraud, mistake, etc.
Motions for a new trial must be filed:
No later than 28 days after entry
Permissive joinder allows Ps to join together in an action IF:
- arise from single transaction, occurrence, or series of transactions AND
- Disc jokey example - common question of law or fact to all Ps will arise in the action
Monetary sanctions may not be imposed on a party when:
The legal contentions contained in the pleading or motion are not warranted by existing law or frivolous argument
Sanctions standard:
Limited to what is sufficient to deter repetition of such conduct”
Can you remove the action to a federal court located in a different state than where the OG state court action is pending?
No
Removal is proper to the federal district where the of state court action is pending
Can federal courts hear a case without subject matter or federal question?
No. Unconstitutional under Article 3
Do the federal courts have jurisdiction when the US is a party?
Yes
Can a party amend her answer (once the SOL has ran) to change her defense completely?
Yes. You can amend your answer within 21 days after it was served as a “matter of course”
AND
relates back to original claim
A party may move for SJ:
Prior to 30 days after the close of discovery
Relying on your complaint allegations when defendant provided evidence for their defense and moved for SJ:
Court will grant because there is no genuine dispute as to any material fact
If someone demands a jury trial in state court –> will it be granted?
No because the 7th amendment has not been incorporated against the states
When do you have a right to a trial by jury?
- Federal court
- Must have been suable at common law in 1791
- Claim must be legal in nature (Ex=wrongful death for money damages)
- Must file the demand within 14 days after the service of last pleading directed to that issue
Judgment as a matter of law may be made:
At any time before the court submits the case to the jury
A judge can reserve judgement and still submit case to jury
Judgment as a matter of law standard:
If a reasonable jury could have legally sufficient evidence to find for the moving party
What standard of review will an appellate court employ if trial courts ruling was on a finding of fact?
Clearly erroneous.
Ex) think about the trademark example. Judge had to decide confusion
When is a party required to be joined?
(1) required for the court to be able to accord complete relief among the existing parties OR
(2) has an important interest in the case and NOT joining them will
- cause them a practical impairment in protecting their interest; OR
- expose an existing party to a substantial risk of multiple liability
What if a required party cannot be joined? Because they destroy jurisdiction?
Court can proceed without party if “in equity and good conscience” OR
Dismiss the case if the party is indispensable (prejudice to party if not joined, judgement will be inadequate, adequate alternative remedy)
When is a person bound to a class action judgment if they were not part of the class?
(1) injunctive or declaratory relief
(2) no common question of fact or law - notice not required
Will a failure to prosecute prevent the re-assertion of the same claim in a new action?
Yes because it constitutes an adjudication on the merits
If a suit ended in an involuntary dismissal, will it bar a subsequent suit?
Yes, for (1) failure of the plaintiff to prosecute (2) failure to comply with FRCP or court order (3) failure of P to show right to relief based upon facts and law
Exceptions
(1) dismissal for lack of jurisdiction (2) dismissal for improper venue (3) dismissal for failure to join a party under Rule 19 AND (4) dismissal without prejudice
What can you file in response for insufficient process?
Motion to dismiss
When may a new trial be granted?
The verdict is against the weight of evidence because of juror misconduct or verdict is inadequate.
An error during trial.
- Can not be granted for harmless error
- Trial judge may order for errors committed during trial that result in an unfair verdict
(Ex: Jury misconduct, outside influence, prejudice, concealment of bias, misunderstanding of jury instructions)
RULE: Any reason that would justify granting one on a party’s motion.
Total Breach
A party who owes a duty under a contract fails to perform and the breach is severe and it will have the effect of suspending or discharging the other party’s obligation to perform
Partial breach
When a breach is not material and does not relieve the aggrieved party from continuing to perform under the contract
Aggrieved party does not have immediate right to sue for damages
Anticipatory repudiation
A party makes it clear he does not intend to perform even before performance
Divisible contract
- the contract divides each party’s performance into at least two parts
- each party has the same number of parts they are obligated to perform and
- each party’s performance on each part is agreed to be the equivalent of a corresponding part for the other party
When one party performs a single unit under a divisible contract, he is entitled to recover the amount that agreed upon
However, if the party is partially performing, he will be subject to liability
In a contract dispute, when is outside evidence allowed if the agreement is completed integrated?
To clarify terms in a K when a terms meaning is ambiguous
Parol evidence rule
Bars parties to a written K from presenting extrinsic evidence of terms in a K that contradicts, modifies, or varies the terms of a written agreement when that agreement is complete and finalized
Additional terms
Contract terms that are intended by the parties to be the final expression their agreement can not be contradicted by evidence of any previous agreement but may be explained or supplemented by evidence of additional terms
These terms can be based on (1) course of performance (2) course of dealing (past contract behavior) (3) trade usage
Trade usage will be viewed as consistent with agreements express language UNLESS
The usage completely negates specific express language
Will be admissible to explain interpretation of written K
