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Civil Procedure > SP 22 Concepts > Flashcards

SP 22 Concepts Flashcards

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1
Q

Pleadings

A

A paper containing factual assertions that support jurisdiction and legal claims in a civil lawsuit.

5 Kinds:

  • Complaint
  • Answer
  • Counterclaim
  • Crossclaim
  • Reply

FRCP 7(a)

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2
Q

Complaint

A

Plaintiffs first pleading stating grounds for federal subject matter jurisdiction and factual assertions and claim against opposing party

FRCP 7(a)

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3
Q

Answer

A

Defendants first pleading, which responds to the factual allegations of the complaint and asserts defenses and sometimes claims by the defendant.

Needs to be filed within 21 days.

FRCP 7(a)

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4
Q

Counterclaim

A

When the defendant includes a claim against the plaintiff

FRCP 7(a)

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5
Q

Crossclaim

A

When the defendant includes a claim against a codefendant

FRCP 7(a)
FRCP 13(g)
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6
Q

Reply

A

Uncommon and often needs the court permission. This is a response to an answer

FRCP 7(a)

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7
Q

Pleading w Particularity

A

Must give strong inference that the defendant acted with a particular state of mind

Heightened pleading standard for fraud or mistake

FRCP 9(b)

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8
Q

Special Damages

A

Damages that would not normally be anticipated

FRCP 9(g)

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9
Q

Claim for Relief

A

Needs:

1) short and plain statement of the grounds for the courts jurisdiction toon
2) short and plain statement of the claim showing pleader is entitled to relief
3) demand for relief sought

FRCP 8(a)

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10
Q

Alternative Claims or Theories

A

A party to a pleading may set out 2 or more statements of a claim or defense alternatively or hypothetically

And claims maybe inconsistent

FRCP 8(d)

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11
Q

TWIQBAL

A

Twombley—did away w no set of facts standard for alternative statements in pleadings

Iqbal- created plausibility standard for alternative statements

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12
Q

Plausibility Standard

A
  • somewhere between possible and probable
  • standard varies by circuit
  • context specific
  • reviewing court to draw on it judicial experiences and common sense

FRCP 8(d)

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13
Q

Defendants options in responding to a complaint

A
  1. Do Nothing (Rule 55)
  2. File an answer
  3. File a motion to dismiss (Rule 12)
  4. File both a motion and an answer
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14
Q

Default Judgement

A

-failure to plead or otherwise defend after 21 days
(Condition subsequent)
-can be entered by clerk or judge
-may set aside for good cause proven by unresponsive party

FRCP 55

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15
Q

Grounds for Relief from a final judgement

A

1) Mistake, surprise, excusable neglect
2) Newly discovered evidence
3) Fraud
4) Void judgement
5) judgement has been satisfied
6) Any other reason that justifies

FRCP 60(b)

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16
Q

Time to Serve Responsive Pleadings

A

1) 21 days after being served the summons
2) 14 days after a pre answer motion is denied

FRCP 12(a)

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17
Q

Defenses aka Pre-answer motions

A 
A) lack of SMJ
B) lack of PJ
C) Improper venue
D) Insufficient process
E) Insufficient service of process
F) Failure to state a claim 
G) Failure to join a party

FRCP 12(b)

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18
Q

Motion for a more definite Statement

A

Must be made before a response

Must point out the defects within the pleading

Must articulate the details desired

FRCP 12(e)

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19
Q

Rule 12(b) Motions that are waived if not joined within earliest pleadings/motions

A

Lack of personal jurisdiction

Improper venue

Insufficient process

Insufficient service of process

FRCP 12(g&h)

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20
Q

Rule 12(b) Motions that can be raised anytime

A

Lack of subject matter jurisdiction

Failure to state a claim upon which relief can be granted

Failure to join a party under rule 19

FRCP 12(g&h)

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21
Q

When Responding to a Pleading a Party Must:

A
  • state in short and plain terms it’s defenses to each claim asserted
  • admit or deny the allegations asserted against it by An opposing party.

FRCP 8(b)

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22
Q

Affirmative Defenses

A

Found In FRCP 8(c)

Accord and Satisfaction
Arbitration and award
Assumption of risk
Contributory negligence
Duress
Estoppel
Failure of consideration
Fraud
Illegality
Injury by fellow servant
Laches
License
Payment
Release
Res Judicata
Statute of Frauds
Statute of Limitations
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23
Q

Signature

A

Every paper submitted to the court must be signed by the attorney of record or personally by the pro se individual

FRCP 11(a)

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24
Q

PLEE

A

Representations to the Court

P= no improper Purpose
L= Legally non frivolous 
E= Evidence to support facts
E= Evidence to support denials or defenses

FRCP 11(b)

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25
Q

Reasonable Inquiry in pleadings

A

The attorney or Pro Se party certify there has been a reasonable pre-filing inquiry. Factors that may affect Reasonableness:

  • timing
  • complexity
  • who has control of the facts
  • reliance on client or referring lawyer
  • an objective standard that is not specific to locality
  • must look at each individual charge, not the pleading as a whole.

FRCP 11(b)

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26
Q

Sanctions

A

1) Can be imposed on lawyers and/or parties
2) Motion for sanction
—-must be made separately from any other motion
—-must describe specific conduct of violations
—-21 day safe harbor provision
—-attorney’s fees for prevailing party
3) on the courts initiative (sua sponte)
4) Nature of Sanctions
5) limitations on Monetary Sanctions

FRCP 11(c)

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27
Q

Timing for making amendments to pleadings

A
  • 21 days after service, or responsive pleading or 12(b) motion
  • W opposing party consent or court permission.

FRCP 15(a)

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28
Q

Standard for court deciding to allow in amendments

A

Given freely when justice so requires.

FRCP 15(a)

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29
Q

If other side opposes an amendment, they must show:

A

Undue prejudice. Examples are:

Undue delay
Bad faith
Undue prejudice to the opposing party by virtue of allowance of the amendment
Futility of the amendment

FRCP 15(a)

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30
Q

To Amend a pleading during or after trial

A

1) must be based on an objection:
—objection that evidence being introduced does not conform to the pleadings
—burden is on objecting party to show this prejudices their case
—court can grant a continuance to prepare argument against amendment
2)Issues tried by consent
—non-moving party consents to amend by express or implied consent.

FRCP 15(b)

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31
Q

Relation Back of Amendments to original pleading

A

When…
A) it is within the statute of limitations,
B) it arose out of the same transaction or occurrence, OR
C) a new party is added to the complaint that arises out of same transaction or occurrence
—new party to complaint needs notice w/in 90 days after complaint is filed
—the proposed new party knew or should have known that the lawsuit would be brought except for a mistake

FRCP 15(c)

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32
Q

Supplemental Pleadings

A

When a party looks to add facts to the original pleading that occurred after the original filings.

  • must arise out of same transaction or occurrence
  • can be made by motion and w reasonable notice
  • court MAY order opposing party respond within a specified time

FRCP 15(d)

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33
Q

Permissive Joinder of Parties

A

The same for Plaintiffs and defendants:

  • must arise out of the same set of transactions or occurrences
  • there must be common question of law among fact or parties

FRCP 20(a)

Permissive

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34
Q

Joinder of Claims

A

A party asserting the different kinds of claims may join as many claims as it has against the opposing party.

FRCP 18

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35
Q

Protective Measures

A

A court may issue orders to protect a party from embarrassment, prejudice, etc

FRCP 20(b)

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36
Q

Misjoinder or Nonjoinder of Parties

A

Misjoinder of parties is not a reason to dismiss a case

Can be made via motion or sua sponte
—court can add or drop a party

The court also can sever any claim against a party; creating an entirely new lawsuit

FRCP 21

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37
Q

Separate Trials

A

Will be ordered within a lawsuit, when a court severs issues or parties to deter prejudice.

FRCP 42(b)

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38
Q

Separate Trials may be issued for:

A

Convenience
To avoid prejudice
Expedite and economize

FRCP 42(b)

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39
Q

Compulsory Counterclaims

A

When it’s mandatory to file a counterclaim:
-when the claim arises out of the same transaction or occurrence of the opposing party’s claim
AND
-the court has jurisdiction over any added party

  • exception: does not need to state of claim is pending in another action or if there is no PJ

FRCP 13(a)

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40
Q

Permissive Counterclaims

A

Party May state any counterclaim that is not compulsory

FRCP 13(b)

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41
Q

Impleader

A

Original defendant is bringing in a third party that is liable to the defendant for all or part of the plaintiffs claim against the defendant.

  • must be made within 14 days of serving answers, otherwise need permission from the court.
  • service of summons and complaint on nonparty to be brought in
  • same rules apply to third parties
  • if defendant gets to bring in a third party, so does plaintiff

FRCP 14(a)(1-3) & (b)

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42
Q

Required Joinder of Parties

A

Absentee must first be subject to service of process AND second, not deprive court of SMJ
A) Necessary to grant complete relief to existing parties
OR
B) Absentee claims an interest and their absence would either:
i) impede their ability to protect interest
OR
ii) Leave an existing party a risk of multiple or inconsistent obligations

FRCP 19(a)(1)

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43
Q

When Joinder is not feasible with absent party…

A

Whether in equity or good conscience, the case should go forward without the required party or action should be dismissed.

The factors for the court to consider are:

  1. Risk of prejudice in fashioning the judgement
  2. Ways to lessen prejudice in fashioning the judgement
  3. Will judgement be adequate if case goes forward
  4. Will plaintiff have adequate remedy if the case is dismissed

FRCP 19(b)

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44
Q

Intervention as of Right

A

Way to qualify:
1) statue grants unconditional right
2) Three requirements for proposed intervenor
—claims an interest AND
—lawsuits outcome may impair intervenor’s ability to protect interest AND
—no current party can adequately represent that interest

FRCP 24(a)

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45
Q

Permissive intervention

A

1) by motion, the court may allow an intervenor who:
—has conditional statutory right OR
—proposed intervenor has a claim or defense that shares with the main action a common question of law or fact.

3) court must take into account undue delay or prejudice that would be cause if the intervention is permitted

FRCP 24(b)

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46
Q

Interpleader

A

A way for a stakeholder to get everyone who is needed to resolve litigation

  • serves same purpose as impleader and required patty—gathering all parties to resolve the conflict.
  • having all necessary parties in one suit is more efficient and protects persons from multiple or inconsistent obligations.

FRCP 22

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47
Q

True Interpleader

A

Stakeholder knows res goes to one of the parties and is disinterested. Looking for the court to decide who the res goes to.

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48
Q

In the Nature of Interpleader

A

Stakeholder has an interest in the res and it a party to litigation of claims.

When the stakeholder does not believe the res should be split amongst everyone; they are still and interested party

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49
Q

Interpleaders 2 stage process

A

1) court determination that Interpleader is appropriate, all necessary elements are met.
IF YES,
2) adjudication of the claimants interest

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50
Q

28 USC 1335

A

Creates Interpleader jurisdiction

  • minimum diversity among claimants
  • amount in controversy : $500
  • national service of process
  • can get stay of other proceedings
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51
Q

28 USC 2361

A

Process and Procedure for interpleader

May issue process for all claimants to be restrained from instituting or prosecuting any proceeding affecting the disputed res involved in interpleader

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52
Q

Supplemental Jurisdiction

A

Ask:
For the claim with no independent basis for SMJ; will the principles of supplemental jurisdiction allow me to bring the second claim?

To amend or attach a second claim onto an anchor claim?

53
Q

Common Nucleus of operative facts

A

For Supp. Jur.:
If the court has SMJ, the court can also hear a state claim in that lawsuit (joined under 18(a)) if:

The state law arises from the same common nucleus of operative facts as the anchor claims.

It is one constitutional case and thus legitimately within the constitutional grant of SMJ

54
Q

28 USC 1332

A

Gives diversity jurisdiction

  • citizens of different states
  • amount in controversy exceeds $75k
55
Q

28 USC 1367

A

A) gives supp jur
-“claims so related they form part of the same case or controversy” includes Joinder of claims

B) takes away supp jur
-excludes plaintiffs claims to join parties
Or when supp jur would destroy diversity

C) court May decline to excersise supp jur (4 factors)

56
Q

28 USC 1367(c) four factors

A
  1. The claim raises a novel or complex issue of state law
  2. The claim substantially predominates over the claim or claims which the court has original jurisdiction.
  3. The court has dismissed all claims over which the court has original jurisdiction
  4. In exceptional circumstances there are other compelling reasons to decline
57
Q

Initial Disclosures

A

A) must provide w/o being requested

  • identity and contact info for witnesses
  • documents, ESI, Tangible things
  • damage computations
  • insurance agreements

C) timing- generally 14 days before 26(f) discovery conference.

FRCP 26(a) (1)

58
Q

Expert Testimony

A

Must initially disclose.

Experts may change, if they do you have 90 days to disclose before trial.

FRCP 26(a)(2)

59
Q

Pretrial Disclosures

A

Anything you haven’t had to disclose yet, must give at least 30 days before trial.

FRCP 26(a)(3)

60
Q

Scope of Discovery: Generally

A

1) Non-privileged matter relevant to claim or defense. Must be proportional. Need to not be admissible to be discoverable
2) limits on frequency and extent

FRCP 26(b)(1&2)

61
Q

Factors to determine “proportional” in the context of discovery

A

A) Importance of the issues at stake in the action
B) Amount in Controversy—can’t have the discovery cost more than the lawsuit is worth
C) Parties relative access to relevant information
D) parties resources (may dictate how much discovery can be done)
E) importance of the discovery in resolving the issues
F) burden or expense of discovery outweighs

62
Q

Scope of Discovery: Trial Prep Materials

A

Work product
A) No Access to docs/tangible items “prepared in preparation of litigation” by other side or it’s representatives UNLESS:
i) otherwise discoverable (relevant/non privileged)
AND
ii) Party seeking them shows it has a substantial need and cannot, without undue hardship, obtain their substantial equivalent otherwise.

B) If ordered disclosed, but court must protect mental impressions, conclusions, opinions, or legal theories (MICOLT)

FRCP 26(b)(3)

63
Q

Interrogatories

A

Written questions to the opposing side. Answers must be in writing. Can relate to any 26(b) inquiry.

  • limited to 25 questions including subparts
  • 30 days to answer

FRCP 33

64
Q

Producing Documents & Things

A

Often accompanies interrogatories but doesn’t have to.
-30 days to respond

FRCP 34

65
Q

Depositions

A

For parties parties and non-parties.

Witnesses are under oath, but no judge is present.

Non parties main discovery device utilizing a subpoena

FRCP 30

66
Q

Physical & Mental Examinations

A

Used when a mental or physical condition -including blood group- is in controversy

Must be made by motion to the court on good cause

FRCP 35

67
Q

Requests for Admission

A

Requests sent to an opposing party for the purpose of admitting things
-has 30 days to respond

FRCP 36

68
Q

Protective Orders

A

For good cause, court can enter a protective order for a party against whom discovery is sought can seek protection if requests are excessive.

Must show good faith effort to resolve short of filing motion

FRCP 26(c)

69
Q

Discovery Conference

A

Parties must meet to develop a discovery plan.

At least 21 days before scheduling conference

FRCP 26(f)

70
Q

Discovery Certification

A

Rule 11 does not apply to discovery. This is sanctioning for discovery.

FRCP 26(g)

71
Q

Motion for an order compelling disclosure or discovery

A

A party may move for an order compelling disclosure or discovery. The motion must include a certification that the moving has in good faith conferred or attempted to confer with the person or party failing to make disclosures or discovery in an effort to obtain it without court action.

Specific motions

  • Motion to Compel Disclosures
  • Motion to Compel a Discovery response

FRCP 37(a)

72
Q

Failure to Comply w Court Order

A

On the second attempt to get a response, If a party fails to comply with a discovery order, the court where action is pending May issue further just orders, including:

  • facts in the order be taken as established for purposes of the action
  • prohibiting disobedient party from supporting or opposing claims or defenses from designated matters in evidence
  • staying further proceedings until orders are observed
  • dismissing the action or proceeding in whole or I’m part
  • rendering a default judgement against disobedient party
  • treating as contempt of court

FRCP 37(b)

73
Q

Failure to Preserve ESI

A

ESI that should have been preserved in the anticipation of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.

FRCP 37(e)

74
Q

Subpoena

A

A summons like document that represents the power of the court or judge.

Commands the person. To who it is directed to do something at a specified time or place.

FRCP 45

75
Q

Rules by District Courts/Judges Directives

A

A) Local Rules. Authorizes district courts to have their own rules

B) When there is No Controlling Law. Authorizes each judge to have their own rules.

FRCP 83

76
Q

Purpose of Pretrial Conference

A
  1. Expedite disposition of the action;
  2. Establish early and continue to control so that the case will not be protracted because of lack of management.
  3. Discouraging wasteful Pretrial activities
  4. Improving the quality of the trial through more thorough preparation.
  5. Facilitating settlement

FRCP 16(a)

77
Q

Pretrial Scheduling Conference

A

Scheduling conference/order - to include disclosure timing, discovery conference, scheduling orders

Should occur within 90 days of service.

FRCP 16(b)

78
Q

Attendance and matters for consideration

A
  1. Mandatory attendance. Represented parties must have authority to make stipulations and admissions about all matters. Court could mandate represented party have settlement authority.
  2. List of things that the court can take care of at Pretrial conference

FRCP 16(c)

79
Q

Final Pretrial Conference

A

May hold a final Pretrial conference to go over trial plans, admission of evidence. May modify final Pretrial order to prevent manifest injustice.

FRCP 16(e)

80
Q

Violation of Pretrial directives

A

Sanctions.

Allows judge to issue sanctions to a party that does not comply with Pretrial directives

FRCP 16(f)

81
Q

Voluntary Dismissal

A
  1. When a plaintiff wants to get rid of their own lawsuit.a) without a court order. May dismiss by filing:
    i) notice prior to opposing party answers or makes a motion
    ii) a stipulation signed by all parties who have appearedb) Effects. The dismissal is w/o prejudice. If the dismissal is w prejudice (adjudication on the merits) cannot refile
  2. By court order.
    • Effect. Generally without prejudice, unless otherwise states.

FRCP 41(a)

82
Q

Involuntary Dismissal

A

Always done by the court. Can occur for two reasons (1) Plaintiff has not proceeded promptly enough with litigation (“failure to prosecute”) (2) Failure to comply with rules or court orders.

Considered w adjudication on the merits (w/prejudice) EXCEPT dismissal for:

  • Lack of jurisdiction
  • Improper venue
  • Failure to join a required party
  • Unless the order provides otherwise.

FRCP 41(b)

83
Q

Summary Judgment

A

Part May move for SJ or partial SJ. Opposing party can file cross SJ motion.
The motion SHALL be granted if the movant shows:
-No genuine Dispute over Material Facts
AND
-The movant is entitled to judgment as a matter of law.

Timing. Motion for SJ can be filed anytime, but no later than 30 days after the close of discovery

FRCP 56

84
Q

Genuine Dispute

A

Exists if:

A reasonable party could find for the non-moving party

FRCP 56

85
Q

Material Facts

A

Facts that matter to the outcome of the lawsuit

FRCP 56

86
Q

Summary Judgment: Proof of Elements Motion

A
  1. The party moving for SJ has the burden of proof

2. The only way they can prevail is to prove every element they would have to prove at trial.

87
Q

Summary Judgment: Disproof or Negation of an Element Motion

A
  1. By movant without burden at trial

2. Can prevail by disproving a key element of non moving party’s case.

88
Q

Summary Judgment: Absence of Proof of an Element

A
  1. Can be filed by party without burden

2. Movant says there is no evidence in materials that non-moving party can establish

89
Q

Supporting Materials for SJ Motions

A
  1. Discovery materials
  2. Pleadings are not evidence and not admissible at trial
  3. Materials that are roughly equivalent to evidence.

FRCP 56(c)

90
Q

Right to a Jury Preserved

A

For suits at common law the right to a jury trial shall be preserved as declares by 7th amendment.

Preserved= if you had the right to a jury trial in England what the bill of rights was ratified (1791) you have the right to a jury trial now.

If claim did not exist in 1791, must determine if it is legal or equitable.

FRCP 38(a)

91
Q

Right to Jury Demanded

A

Have to request a jury trial in writing no later than 15 days after last pleading

FRCP 39(b)

92
Q

When Jury Demand is Made

A

Must be calendared on the docket as a jury trial

I’d not demanded it is waived

FRCP 30(a)

93
Q

Legal claims

A
  1. Seeks monetary damages

2. Only legal relief is entitled to a jury trial

94
Q

Equity Claims

A
  1. Injunctive relief
  2. Specific performance

You want someone to be stopped from doing something or you want someone to be forced to do something

95
Q

Judgment as a Matter of Law

A

If a party has been fully heard on an issue during a jury trial AND the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for that party on the issue, the court MAY:

  1. Resolve the issue against the party AND
  2. Grant the motion for JMOL against the party on a claim or defense that can be maintained or defeated only with a favorable finding on that issue.

FRCP 50(a)

96
Q

Renewed Judgment as a Matter of Law

A

If the court denies 50(a) JMOL, the case is submitted to a jury. 50(b) allows the legal question raised in 50(a) to be raised again.

When?

  • no later than 28 days after the judgment entry.
  • party may also include an alternative or joint request for new trial under rule 39

Court’s Response?

  • allow judgment on the verdict
  • order a new trial
  • direct entry of judgment as a matter of law
97
Q

Number of Jurors; Verdict; Polling

A

A) Size of jury. Generally 12 but can be as few as 6
B) Verdict. Unanimous verdict requires unless parties stipulate otherwise.
C) Polling Jurors. Can ask the court to have jurors stand up and say how they voted. If asked the judge must allow.

FRCP 48

98
Q

Requests for Instructions to the Jury

A

Parties may make specific requests for jury instructions to the judge up until the close of evidence

FRCP 51(a)

99
Q

Instructions to the Jury

A
  1. Court must inform parties before instructions to jury and before closing arguments
  2. Court must allow parties to object on the record and out of the jury’s hearing before

FRCP 51(b)

100
Q

Objections to Jury Instructions

A

Objections must be made on the record, stating distinctly the matter objected to and the grounds for objection.

FRCP 51(c)

101
Q

Assigning Error in Jury Instructions

A

A) error in an instruction actually given, if properly objected

OR

B) failure to not give an instruction

FRCP 51(d)(1)

102
Q

Plain Error in Jury Imstruction

A

Error which effect substantial right

FRCP 51(d)(2)

103
Q

Harmless Error

A

When substantial rights are not affected.

“Parties are entitled to a fair trial not a perfect one”

FRCP 61

104
Q

Special Verdict

A
  • Special written finding on each issue of fact
  • The jury does not determine liability-just making findings of fact
  • Based on what jury has found on each material fact, the judge will apply the law to the facts
  • Just a written findings, not liability.

FRCP 49(a)

105
Q

General Verdict w Answers to Written Questions

A

When the jury does determine liability with answers to written questions.

  • Judgment must be entered
  • Court must find direct the jury to further consider its answers and verdict or must order a new trial

FRCP 49(b)

106
Q

Motion for a New Trial re: Juries

A

(a)(1) grounds for a new trial—court May grant on all or some of the issues and to any party
(A) after jury, for any reason which new trial has heretofore been granted

(b) Time to file- must file within 28 days of the entry of judgement
(c) Court can do this on their own- does not need to be on motion.

FRCP 59

107
Q

Process Error - 3 questions

A
  1. Did an error occur?
  2. Was it an error that substantially affected the ability to have a fair trial or jury verdict?
  3. Was a timely and specific objection made?
  4. Was there newly discovered evidence (FRCP 60(b)(2)) that could not have been discovered in time to move for a new trial?
108
Q

Remittitur

A

Compels a plaintiff to choose between reduction of a jury award OR a new trial.

If the award “shocks the conscience”

FRCP 59(e)

109
Q

Additur

A

Compels the defendant to pay a higher amount OR go to a new trial

Violates the 7th amendment and not allowed in Fed. Ct. Still allowed in state court, by jurisdiction

FRCP 59(e)

110
Q

Relief From a judgement or Order: Clerical Mistake

A

The court can correct on its own without anyone asking and with or without notice.

FRCP 60(a)

111
Q

Relief from a Judgement or Order: Grounds for Relief

A

On motion, court may relieve a party from final judgment for:

1) Mistake, inadvertence, surprise, or excusable neglect
2) Newly discovered evidence
3) Judgment is void (without power)
4) any other reason that justifies relief

FRCP 60(b)

112
Q

Relief from a Judgement or Order: Timing

A

Within a reasonable time, I’m some cases the outer limit is one year.

FRCP 60(c)

113
Q

When to file an appeal?

A

Must file notice of appeal working 30 days after entry of judgement.

An appeal can be denied for untimely notice

FRAP 4

114
Q

28 USC 1291

A

Final decision of District Courts
A final decision defined: a decision that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.

115
Q

28 USC 1292

A

Interlocutory Decisions:
This acknowledges that some non-final decisions must have a process for appellate review

1292(b) trial judge certifies that;

  • it’s a controlling question of law
  • substantial ground for difference of opinion
  • immediate appeal May speed up ultimate resolution of the case
116
Q

Reviewability on Appeals

A
  1. Prejudice error
  2. Preserves below
  3. Presented above
117
Q

Exceptions to Final Order: Collateral Order Doctrine

A

Has 4 requirements:

  1. Order on an issue that is unrelated to the merits of the trial and can be reviewed without disrupting the merits
  2. The issue is conclusively/completely resolved by the collateral order.
  3. The order concerns a right that cannot be effectively reviewed on appeal from final judgment.
  4. The order involves an important and unsettled question of controlling law.
118
Q

Exception to Final Order Doctrine: Judgment on multiple claims or Involving Multiple Parties

A

If there are multiple claims or parties, trial court may direct entry of a final decision is made as to a particular claim or party.

FRCP 54(b)

119
Q

Exceptions to Final Order Doctrine: Extraordinary Writs

A

Petition for writ of memorandus: extraordinary writ that provides for review of non final orders.

Has two elements

  1. Special risk of irreparable harm
  2. Clearly entitled to relief sought
120
Q

Standards of Review

A
  1. De Novo- for questions of law
  2. Clearly erroneous- used for trial judges finding of facts
  3. Abuse of discretion: deferential but level of deference might vary based on what decisions are being reviewed
121
Q

Claim Preclusion

A

Has 3 elements

  1. Both suits involve same kind of cause of action.
  2. First lawsuit resulted in final, valid judgement on the merits AND
  3. Both lawsuits involve the same claimants on the same side.
122
Q

Exceptions to claim preclusion:

A
  1. When parties agree that plaintiff can split claim
  2. A court orders no preclusion effect
  3. When claim being brought is LS2 could not have been brought in LS1 due to SMJ limitations.
123
Q

Issue Preclusion

A

Has 5 elements:

  1. Same issue in both suits AND was actually litigated and decided in LS1
  2. Same issue actually litigated and decided was essential to the judgement in LS1
  3. Whether the finding on the actually litigated and decided issue ended in a valid, final judgment on the merits
  4. May be raised/asserted only against who was a party on LS2
  5. By whom may IP be asserted
124
Q

Doctrine of Mutuality

A

Neither party can be bound if both parties cannot be bound.

There must be reciprocity

125
Q

Non Mutual Issue Preclusion

A

Mutuality Doctrine has been eroded. Now a party May sometimes be permitted to assert Issue Preclusion

This is when party asserting is not on LS1.

126
Q

Non-Mutual Defensive IP

A

When the asserting party in LS2 is the defendant

Being asserted against plaintiff that was in LS1

Always permitted in federal courts

Due process is satisfied because they were already heard and had chance to litigate

127
Q

Non-Mutual Offensive IP

A

When asserting party in LS2 is plaintiff

Being asserted against defendant that was in LS1

Four factor balancing test:

  1. Whether plaintiff could have been joined in LS1
  2. Did defendant have incentive to fully litigate in LS1
  3. Are there prior inconsistent Judgments
  4. Are there procedural opportunities available in LS2 that weren’t in LS1
128
Q

Inter-system Preclusion

A

Court in LS2 must use preclusion rules of LS1 to determine if preclusion applies

Civil Procedure (1 decks)

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