Objective Mastery Flashcards
Personal jurisdiction requires that the defendant be ________ to the forum state’s
jurisdiction, and that the defendant be _______________.
amenable; served with proper notice
Amenability to personal jurisdiction is governed by the ____________ , subject
to the limits of the _____________ of the United States Constitution.
forum state’s law; due process clause
Pennoyer v. Neff described three bases for state jurisdiction over persons and
things. They are: 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.
Note that quasi in rem jurisdiction is arguably unconstitutional after Shaffer
v. Heitner.
a. In personam
b. In rem
c. Quasi in rem
Pennoyer based its jurisdictional formula on ________ over persons and property
within its borders.
state power
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
binding
full amount
enforced repeatedly
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
everyone’s interests
parties; nonparties
money judgment
enforcement
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 __________________
property attached for jurisdiction personal judgment enforceable against any other property more than once outside the forum
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.
status
__________________________ altered Pennoyer’s rule for personal
jurisdiction, replacing the concept of ___________ with the new standards of
_____________ and ________ provided by the “minimum contacts test.”
International Shoe Co. v. Washington
state power
reasonableness
fairness
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
Residence
Consent
Waiver
Physical presence
Consent to jurisdiction has two forms, _______ consent and ________ consent. _________________ are an example of express consent, and __________________ are an example of implied consent.
express
implied
Forum selection clauses
non-resident motorists statutes
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 __________________.
specific jurisdiction
general jurisdiction
__________________ 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.
Specific jurisdiction
General jurisdiction
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.
purposefully availed
foreseen
reasonably anticipate
stream of commerce
General jurisdiction has one contact test, which is that it has __________________ with the forum state.
continuous and
systematic contacts
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 ______________________. This is a
balancing test with five factors, which are:
—______________________
—____________ interest in convenient and effective relief
—__________________________
—the ______________________ in furthering fundamental social policies
—the ___________________ in effective resolution of controversies
no personal jurisdiction fair play and substantial justice test burden on the defendant plaintiff's the forum state’s interest shared interests of several states judicial system’s interest
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 _____________________.”
reasonably calculated
interested
opportunity to appear
present objections
An abbreviated version of the Mullane notice rule is that __________ requires
notice and an _____________________.
due process
opportunity to be heard
Which rule of the Federal Rules of Civil Procedure deals with initially notifying
the defendant of the lawsuit? _______
Rule 4
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 _____________________.
personal delivery
defendant’s residence
suitable age and discretion
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.
long arm
The purposes of venue rules are:
(a) __________ to defendant
(b) _______________ of caseload within the forum state
fairness
geographic allocation
The federal statute for general venue provisions is _______________.
28 U.S.C. 1391
The purpose of forum non conveniens is to move _____________________
based on fairness and convenience.
cases from one forum to another
Subject matter jurisdiction refers to the court’s authority to adjudicate based on the
type of case and in some cases, _____________________________.
the dollar amount in controversy
Federal courts have subject matter jurisdiction over two types of cases:
—_____________
—___________________
federal question
diversity of citizenship
The statute dealing with general federal question jurisdiction is _____________.
It provides that federal courts have jurisdiction over any _____________________________________ of the United States.
28 U.S.C. § 1331
case or controversy arising under the Constitution, laws, or treaties
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
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 foreign citizens exceeds $75,000
Although the Constitution requires only ______ diversity, 28 U.S.C. § 1332 requires
_________ diversity. This means that all plaintiffs must have different citizenship
than all defendants.
partial
complete
For diversity purposes, a corporation has two citizenships, which are:
a. ___________________
b. ______________________
state of incorporation
principal place of business
For diversity purposes, partnerships have the citizenship of _______________.
all the partners
The amount in controversy is determined by plaintiff’s ________________.
good faith pleading
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
In some cases, a related claim that lacks diversity or federal question jurisdiction
may be included. This is called ______________.
supplemental jurisdiction
Federal courts traditionally abstain from ___________, _________ and __________________.
family law
probate
state criminal proceedings
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
If there is a ___________ defect in the removal, the case must be remanded to state court no matter when the objection is made.
jurisdictional
If there is a __________ defect in the removal, the case must be remanded to state court if a ______________________.
procedural
proper and timely objection is filed
State court subject matter jurisdiction is governed by____________.
state law
In state courts, subject matter jurisdiction is designated by ___________ and/or
________________.
type of case
dollar amount
In Texas, state district courts have ______________ over all claims of ______ or more in controversy.
general jurisdiction
$500
Federal courts have ___________ jurisdiction over patent claims. Federal and state court share ____________ jurisdiction over _____________________.
exclusive
concurrent
federal civil rights actions
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
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
A federal district (trial) court has _________ jurisdiction over appeals from federal
administrative agency decisions.
appellate
The United States Supreme Court has
_________ jurisdiction over disputes between
states.
original
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
________________ interpreted the Rules of Decision Act to require federal courts to apply the general _______________ in cases where state law applied.
Swift v. Tyson
American common law
Erie Railroad Co. v. Tompkins reversed Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply _________________________________.
the law of the state in which that federal court sits.
____________________ coined the “____________________,” which provides that the ______ Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.
Guaranty Trust v. York
outcome determinative test
Erie
___________________ 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
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
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
The most prominent Rules Enabling case is _____________, which resolves the conflict between the Rules Enabling Act and the _______________.
Hanna v. Plumer
Erie Doctrine
_______ 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
Choice of law is the process by which courts deter mine which _______________ law will be applied in a case.
state’s or nation’s
Choice of law rules may be __________________.
statutory or common law
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
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
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
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
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
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
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 nonfrivolous argument evidence Fact denials
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
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
Defendant should always challenge plaintiff’s Complaint by a ______________ for ____________, under F.R.C.P. 12(b)(6). This allows the court to test the _____________ of plaintiff’s claim.
Motion to Dismiss
Failure to State a Claim
legal sufficiency
Defendant may challenge _____________ at any time. Defendant must challenge ________________ and ______ at the first opportunity or waive them.
subject matter jurisdiction
personal jurisdiction
venue
Two types of counterclaim are _________ and ____________. A ____________ counterclaim is one related to plaintiff’s claim. If it is not asserted, it is _______.
compulsory
permissive
compulsory
waived
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
Pleadings may be amended to add new _____________, and new ___________________.
factual allegations
claims or causes of action
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
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
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
One exception to the liberal federal pleading rule (“short plain statement of the claim”) is that allegations of _____ must be plead with particularity.
fraud
Many states have abandoned code pleading, replacing it with ______ pleading requirements based on the __________________.
notice
Federal Rules of Civil Procedure
Texas still requires plaintiff to plead ____________. However, it may not be necessary in each case to plead every ________.
causes of action
element
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.
demurrer
legal sufficiency
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.
arises out of the transaction or occurrence
compulsory counterclaim
barred
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).
wins a dismissal arisen matured lacks personal jurisdiction another pending action Personal jurisdiction in rem
Permissive joinder allows any party to join ____________ against ________________.
unrelated claims
existing parties
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
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
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 ________________, or series of transactions or occurrences, ____
b. “any question of _________ common to all these persons will arise in the same action.”
Rule 20 also permits ______________ to ________________ if they meet this test.
multiple plaintiffs same transaction, occurrence AND law or fact one or more plaintiffs join multiple defendants
Two other requirements for naming parties to a lawsuit are:
a. _______________
b. ____________
Real Party in Interest
Capacity
Procedural devices for adding multiple parties include: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
a. Impleader, or Third Party Action
b. Interpleader
c. Intervention
d. Class Action
e. Shareholders’ Derivative Suit
The scope of discovery, both in Texas and federal courts, is all matters “not privileged” that are “________________________.”
“reasonably calculated to lead to the discovery of admissible evidence.”
The forms of discovery are: \_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
——interrogatories --requests to produce or inspect —subpoenas duces tecum —oral depositions —written depositions —physical and mental examinations —requests for admission
Privileges shield information from discovery, such as:
—_____________
–______________
–______________
Discovery exemptions have a similar effect. These include
—______________________
—__________________(in Texas state courts)
--attorney-client privilege —spousal privilege —doctor-patient privilege ---attorney work product exemption ---client investigatory exemption
The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are ________.
waived
In addition to waiver, the privileges and exemptions may have exceptions that _________________.
permit or require disclosure
Devices for dismissal include:
a. _________ Dismissal
b. ____________ Dismissal for failure to prose cute, 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
A Motion for Judgment on the Pleadings may be filed by ________________. In deciding the motion, the court will look only to the _____________ pleadings to determine if that pleading has stated a ______ or __________.
either plaintiff or defendant
nonmovant’s
claim
defense
F.R.C.P. 56 provides that for summary judgment, the burden is on the movant to show that:
a. there is ________________, and
b. movant is _________________.
no genuine issue of material fact
entitled to judgment as a matter of law
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
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
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
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
In deciding the motion for summary judgment, the court must view the evidence in the light______________________.
most favorable to the nonmovant
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
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
If a party lacks evidence to respond to a motion for summary judgment, that party may seek _______________ under Rule 56(f).
additional time
In federal court, the trial issues of law and fact are governed by a Pretrial Order. In state courts that do not use a ______________, the issues of fact and law are governed by the _______________.
Pretrial Order
latest pleadings
The process of questioning prospective jurors is called ______.
voir dire
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
Asking the court to order all witnesses other than parties to leave the room is known as _____________________.
invoking the rule
A defendant may move for the ________________________ if he has the burden of proof on all the remaining issues.
right to open and close
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
Parties have no constitutional right to trial by jury in _____ cases. However, the states may grant the right to jury trial in equity cases.
equity
The right to jury trial is presumed to exist under a federal statute unless that statute expressly _________ the right.
excludes
If a party fails to request a jury within the time allowed by _____________, the right to jury trial is__________ .
forum law
waived
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
If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the _______________.
trier of law and fact
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
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 in the _________________________, a reasonable jury could not find for plaintiff.
judgment as a matter of law
light most favorable to the plaintiff
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
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
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
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:
—__________
—________________
—___________
—result contrary to the ___________________
twenty-eight (28) trial error newly discovered evidence misconduct great weight of the evidence
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
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
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
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
Under F.R.C.P. 60(a), a party may correct clerical mistakes and other _______________ in a judgment. Under F.R.C.P. 60(b), a party may ask for a new trial based on ____________________________
inadvertent errors
newly discovered evidence or fraud.
A party may also challenge a final judgment by _______________ alleging _________________ or ____.
filing a new action
newly discovered evidence
fraud
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
Appellate courts primarily review questions of law. In order to receive appellate review, there must be plain error that was ______________ by a ______________.
properly preserved
timely objection
Appellant may preserve error by objecting at the time of the error and making known to the court:
a. the ____________, or the _______________, and
b. the ________ therefor.
action desired
objection to the action
grounds
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
___________ courts may review the trial judge’s Findings of Fact in a _________. The standard of review is _____________.
Appellate
nonjury trial
clearly erroneous
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
Preclusion is the doctrine that limits the relitigation of issues and claims. The two kinds of preclusion are:
—_______________
—______________
Claim preclusion
Issue preclusion
Another name for preclusion is “____________.”
res judicata
Claim preclusion includes the doctrines of ______ and ____.
merger and bar
Merger applies to judgments for________. It provides that a __________ judgment 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
Bar applies to judgments for _________. It provides that a judgment for defendant _____________________ on the same claim.
Defendant
bars another action by plaintiff
The-elements of claim preclusion are:
__________
____________
_________________
a. same claim
b. same parties
c. valid and final judgment
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
Issue preclusion is also known as ___________.
collateral estoppel.
Issue preclusion does not apply to whole lawsuits, but to:
a. issues of __________
b. that were __________
c. that ended in a _______________,
d. where determination of that issue was __________ to the judgment, and
e. where the judgment is ________________________
law or fact actually litigated valid and final judgment essential binding on the party being estopped
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
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
Until recently, most state courts used code pleading, which required plaintiff to plead _______________ relating to every element of his claim.
ultimate facts
