Standard Of Review Flashcards
What are the standard of review of appellate courts
- De Novo - In matter of law or mix matter of law and fact
- Clearly erroneous - In matter of fact
- Abuse of discretion - in discretionary decisions
When is a judgement void
When party is deprived of due process:
- No service of notice
- Lack of jurisdiction (didn’t allow party to be heard)
When is a party allowed for relieve of final judgements
- Party discovers new evidence
2. Fraud was committed by the other party
When is a π barred by Res Judicata
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
What is Claim Preclusion (Collateral Estoppel)
Parties can not relitigate a CLAIM if:
- Final judgement on the merits
- By Court with jurisdiction
- Same parties
- Same claim
* Mutual Issue Preclusion - requires same parties
Requirements for a Temporary Restraining Order (TRO)
- Security for costs or damages to other party
- Immediate and Irreparable injury
- 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
Choice of law
- In Fed Q = Fed Law
- In Diversity:
A. Substantive Law = State
Law
B. Procedural Law = Fed Law
* If U.S. is a party = Fed Law
Where is venue proper
(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
Motion waive if party fails to make it BEFORE answer a complaint
Motion for a More Definitive Statement
Motions waived if not raised in the first writing or answer
- Lack of PJ
- Lack of Venue
- Lack of proper service of Notice
- Lack of service of notice
Motion never waived
Lack of SMJ
Motion for Summary Judgment
When there is no dispute of fact, only of law
after discovery
Motion for Default Judgement
When there is no answer to a pleading from the other party
Motion for Judgment on the Pleadings
Party hasn’t DENIED complaint or defense is legally insufficient
(After answer/before discovery)
Motion to State a Claim
No facts to sustain claim
(In answer or during discovery)
Ashcroft v Iqbal / Twombly
Removal requisites
- Within 30 days ∆ discovers case is removable (bar of 1yr in Diversity cases)
- Only ∆ can remove case
Heightened pleadings (requiring more than short and plain statement)
- Fraud
- Mistake
- Special damages
Interpleader
- To declare rights of parties
- Filed by 3rd party in possession of property claimed by more than 1 party
Impleader
Bring 3rd parties into action
Intervention
When 3rd party wants to intervene in action
Choice of Law in transfer of venue
- Incorrect venue - Law of the State where case is transferred
- Convenience - Law of the State where the claim was filed
Compulsory joinder (or action can be dismissed)
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
How must a court rule if there are both legal and equitable issues in a case?
- Submit legal issues to jury
- Then resolve any remaining Equitable issues
* If there is overlap b/w issues, court is bound by jury’s resolution
To demand a jury trial, party must:
- Include demand in the
complaint - No later than 14 days after
service of last pleading
