Standard Of Review

Question 1

What are the standard of review of appellate courts

Answer 1

1. De Novo - In matter of law or mix matter of law and fact
2. Clearly erroneous - In matter of fact
3. Abuse of discretion - in discretionary decisions

Question 2

When is a judgement void

Answer 2

When party is deprived of due process:

• No service of notice
• Lack of jurisdiction (didn’t allow party to be heard)

Question 3

When is a party allowed for relieve of final judgements

Answer 3

1. Party discovers new evidence

2. Fraud was committed by the other party

Question 4

When is a π barred by Res Judicata

Answer 4

When claim is between identity of:
1. Parties
2. Cause
3. Claim and controversy
4. Designation to parties
And, whether:
5. Judgement was final
6. Parties were given full opportunity to be heard
* Even if not identity of parties, but the one sued was in PRIVITY w/prior party.
* Use issue Preclusion if Claim Preclusion is unavailable

Question 5

What is Claim Preclusion (Collateral Estoppel)

Answer 5

Parties can not relitigate a CLAIM if:

1. Final judgement on the merits
2. By Court with jurisdiction
3. Same parties
4. Same claim
   * Mutual Issue Preclusion - requires same parties

Question 6

Requirements for a Temporary Restraining Order (TRO)

Answer 6

1. Security for costs or damages to other party
2. Immediate and Irreparable injury
3. Reasons why court should not notify ∆, or actions taken to notify him

• Preliminary Injunction requires NOTICE
• TRO only for 14 days, until preliminary injunction decided

Question 7

Choice of law

Answer 7

1. In Fed Q = Fed Law
2. In Diversity:
   A. Substantive Law = State
   Law
   B. Procedural Law = Fed Law
   * If U.S. is a party = Fed Law

Question 8

Where is venue proper

Answer 8

(a) judicial district where ANY ∆ resides, provided ALL ∆ live in SAME State
(b) judicial district where SUBSTANTIAL parts of the event occurred
(OR) if (a) and (b) not satisfied
(c) judicial district where ANY ∆ has PJ

Question 9

Motion waive if party fails to make it BEFORE answer a complaint

Answer 9

Motion for a More Definitive Statement

Question 10

Motions waived if not raised in the first writing or answer

Answer 10

• Lack of PJ
• Lack of Venue
• Lack of proper service of Notice
• Lack of service of notice

Question 11

Motion never waived

Answer 11

Lack of SMJ

Question 12

Motion for Summary Judgment

Answer 12

When there is no dispute of fact, only of law

after discovery

Question 13

Motion for Default Judgement

Answer 13

When there is no answer to a pleading from the other party

Question 14

Motion for Judgment on the Pleadings

Answer 14

Party hasn’t DENIED complaint or defense is legally insufficient
(After answer/before discovery)

Question 15

Motion to State a Claim

Answer 15

No facts to sustain claim
(In answer or during discovery)
Ashcroft v Iqbal / Twombly

Question 16

Removal requisites

Answer 16

1. Within 30 days ∆ discovers case is removable (bar of 1yr in Diversity cases)
2. Only ∆ can remove case

Question 17

Heightened pleadings (requiring more than short and plain statement)

Answer 17

• Fraud
• Mistake
• Special damages

Question 18

Interpleader

Answer 18

• To declare rights of parties

- Filed by 3rd party in possession of property claimed by more than 1 party

Question 19

Impleader

Answer 19

Bring 3rd parties into action

Question 20

Intervention

Answer 20

When 3rd party wants to intervene in action

Question 21

Choice of Law in transfer of venue

Answer 21

• Incorrect venue - Law of the State where case is transferred
• Convenience - Law of the State where the claim was filed

Question 22

Compulsory joinder (or action can be dismissed)

Answer 22

Parties that are jointly liable, and necessary and indispensable
(If parties are jointly-and-severally liable = not compulsory - permissive)
*Joint tortfeasors are jointly-and-severally liable

Question 23

How must a court rule if there are both legal and equitable issues in a case?

Answer 23

1. Submit legal issues to jury
2. Then resolve any remaining Equitable issues
   * If there is overlap b/w issues, court is bound by jury’s resolution

Question 24

To demand a jury trial, party must:

Answer 24

• Include demand in the
  complaint
• No later than 14 days after
  service of last pleading

Question 25

When can a ∆ can serve 3rd party claim?

Answer 25

Under Derivative Liability (indemnification/contribution)

Question 26

When is Motion for Summary Judgment proper?

Answer 26

When there is NO dispute of facts.

If Motion raise a dispute of facts, then Motion denied

Question 27

Procedure for Default Judgement:

Answer 27

If other party won't answer to complaint:
- File a Motion for Default 
  Judgment
- Notify other party of Default    
   Hearing
- 7 days before

Question 28

What review must a party use when it has failed to preserve an objection?

Answer 28

Plain error - Must prove error violated party’s substantial rights

Question 29

What is the choice of law for a judgement?

Answer 29

Law of the rendering jurisdiction - Even on Federal Court