Civ Pro Flashcards
(147 cards)
1
Q
How long does a party have after the initial meeting to provide names, addresses, and telephone numbers of individuals likely to have discoverable information supporting the party’s claims or defenses?
A
14 days
2
Q
Electronic Information must be produced unless?
A
It is not reasonably accessible due to an undue burden or cost
3
Q
Work product
A
Any document or tangible thing created in anticipation of litigation. This is not discoverable.
4
Q
The exception to Work Product Exception
A
If the information in the work product is discoverable when the other party can show a substantial need and undue hardship if there is no disclosure. This is usually when things in the work product can no longer be obtained
5
Q
Does evidence need to be admissible to be discoverable?
A
NO, any info admissible or not is discoverable. This includes medical opinions after a car accident. Any info relevant to a claim or defense of that party is discoverable. Costs are considered to determine if discoverable.
6
Q
Expert Testimony and Discovery
A
The opinion of an expert who is retained in anticipation of litigation but who is not expected to testify at trial is discoverable upon a showing of exceptional circumstances which is impracticable to obtain facts or opinion by other means. Absent that, non-discoverable.
7
Q
When is the venue waived?
A
there is no presumption to waiving venue however, venue can’t be waived unless an objection is made timely. The venue also can be conferred by agreement.
8
Q
What is the venue for a business entity?
A
A business entity is deemed to reside in any judicial district in which it is subject to personal jurisdiction
9
Q
What law applies when transfer is based on improper venue?
A
This is the transfer to the venue where the case could have been brought to correct an error. The law of the new (Transferee) court.
10
Q
What law applies when the transfer is based on convenience?
A
This is the transfer for convenience of location. The law of the old (transferor) court.
11
Q
When must the request to transfer to another proper venue be raised?
A
There is no time limit, it’s up to the judge dependent on the interests of justice.
12
Q
What federal district is the proper venue for a case?
A
The district where any defendant resides if they are all in the same state or the district in which a substantial part of the event happened. If neither of the first two applies, any jurisdiction with personal jurisdiction where the defendant is subject to personal jurisdiction. Venue can be waived.
13
Q
Domicile
A
Where someone is physically present and there is intent to make the place a permanent home.
14
Q
Default by Defednat
A
The clerk may sign and enter judgment for the amount in P’s affidavit if D is not an infant or incompetent and the claim is for a certain sum of money and D failed to appear.
15
Q
Ex Parte TRO
A
granted when the moving party gives specific facts in an affidavit or in a verified complaint to establish immediate irreparable injury ill result to the moving party before the adverse party can be heard
16
Q
TRO Notice Exception Requirements
A
- Certify in writing all the efforts made to give notice and reasons why the notice isn’t required
- provide security to pay for costs and damages incurred by the adverse party if wrongfully enjoined or restrained. The US and its officers and agencies don’t need to give security
17
Q
How to serve a D in federal court?
A
- Follow the state rules
- Leaving papers at the person’s home with someone of suitable age who lives there
- Serving the person agent
- Waiver of service
- If outside of the country can serve based on agreement or by American terms the foreign country terms, mail sent by American court with required signature, personal service, or by how a foreign official allows
18
Q
How to request a waiver of service?
A
Can mail or email, then serve however you like.
19
Q
When is a federal question case commenced for SOL purposes?
A
When the complaint is filed
20
Q
When is a diversity case commenced for SOL purposes?
A
Follow the state rule (either complaint filed or when D is served)
21
Q
Motion for a new Trial
A
Can move later than 28 days after judgment was entered. However, If it is based on newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial, you can move in a reasonable time that doesn’t exceed a year.
22
Q
Motion for Summary Judgement
A
Before Trial Begins. Granted if from the pleadings, affidavits, and discovery material, it appears that there is no genuine dispute of material fact and the moving party is entitled to JMOL. The court can’t decide disputed fact issues, if there is a disputed fact the case must go to trial. Evidence is viewed in the light most favorable to the nonmoving party. Summary judgment may be partial as well as complete.
23
Q
Motion for Judgement as a Matter of Law (JMOL)
A
Evidence is viewed in the light most favorable to the nonmoving party. Evidence needed is that such a reasonable jury would not have a legally sufficient basis to find for the party on that issue. Before submission of the case to the jury. The moving party must specify in its motion the judgment sought and the law and facts to which the party is entitled to its judgment. Also, the nonmoving party must have been heard on this issue.
24
Q
Renewed Motion for Judgement as A Matter of Law (JNOV)
A
28 days after entry of judgment AND must have moved for JMOL during the case
25
Implead
A d can implead a nonparty when the nonparty is or may be liable to the party for any part of the judgment P can recover. There is supplemental jurisdiction over claims from D to third-party defendants. Claims from P to 3rd party D must have original jurisdiction.
26
Preliminary Injunctions
Are appealable and require notice. Need to show irreparable harm if the injunction isn't issued, likely to win on the merits of the underlying case, the balance of hardship factors applicant, and the injunction is in favor of public interest.
27
How to receive a jury trial
File a written demand and service it to all parties within 14 days after the service of the last pleasing directed to the jury triable issues. These are issues legal issues, not equity issues.
28
What happens when equitable and legal claims are joined in one suit?
Legal issues are tried first with a jury, then equitable issues second with a judge. The jury's finding will bind the equitable claim. The jury is only for legal issues.
29
Interlocutory Appeals Act
The Interlocutory Appeals Act also may permit a review of an interlocutory order, but it is discretionary and may be available only when (i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; and (ii) the court of appeals then agrees to allow the appeal. A party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal.
30
Interlocutory Order that can be immediately appeled
Injuctions
Appoint a receiver or refuse to wind up or take steps to accomplish purposes of receivership
decrees in admiralty cases that find liability but leave damages to be assessed later
A patent infringement order when only accounting is wanted
an order whereby possession of the property is changed or affected
31
When and where must a notice of appeal be filed?
At the district court 30 days from the entry of judgment
32
When can you appeal the motion for summary judgment?
When it is a final appealable order, this means that all claims in the action are determined. An appeal can be filed on some of the issues only if the court expressly determines that there is no just reason to delay entry of judgment.
33
How to reserve the right to appeal an error in instruction or failure to instruct?
A party must object on the record before instructions are given. If adequately preserved, instructions are reviewed using an abuse of discretion standard. if it's not preserved by objection, the plain error standard.
34
Appellate review standard for JMOL?
De novo
35
Appellate review standard for denial of a motion for a new trial?
Abuse of discretion
36
When can a party be relieved from final judgment or order?
When there is a mistake, inadvertence, surprise, or excusable neglect or newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial or fraud, misrepresentation, or other misconduct of an adverse party or the judgment is void or the judgment has been satisfied, reales or discharged or a prior judgment on which it has been based on was revered/vacated or it is no longer equitable or any other reason for justifying relief. Motion must be made within a reasonable time not to exceed one year.
37
Where is a proper federal venue in a removed case?
The venue is proper in the federal court of that state where the case was pending, even if that venue would have been important if P originally filed in federal court.
38
Who has the right of removal?
Defendants.
39
When can a diversity case be moved to federal court?
It must be removed within 30 days of D's receipt of a copy of the paper that makes it removable and it can't be removed more than one year after the action was commenced. Dismissal of nondiverse party allows removal.
40
Issue Preclusion (Collateral estoppel)
A judgment binds P or D in subsequent actions on different causes of action as to issues that were litigated and essential to the judgment. There must have been a final judgment, the issues must have been litigated and essential to the judgment, and the party to be bound must have been a party to the prior action or in privity to a party. Applies only to issues, not entire cases. Due process requires that issue preclusion may be asserted only against someone who was a party (or in privity with a party) to the previous case (the case in which the issue was actually litigated and determined).
when dealing with the preclusive effect of a judgment, the recognizing court should not give a judgment any greater effect than the rendering state would.
41
Claim Preclusion (Res Judicata)
All claims relating to the same transaction or occurrence generally are required to be asserted at the first trial. A claim is barred when there was a previous final judgment on the merits *judgment is on the merits unless the court states otherwise*, it involves the same P's and D's, and the claim is from the same transaction as the prior suit.
42
Merger
When P wins. Shows that claim preclusion is in effect. When a claimant won't the earlier lawsuit, the claim is said to be merged into the prior judgment
43
Bar
When D wins. Shows that claim preclusion is in effect. When a defendant won the earlier lawsuit, the claim is said to be barred by the prior judgment.
44
Voluntary Dismissal
A P may of right dismiss an action one time without prejudice before D serves its answer. A voluntary dismissal is not a final judgment on the merits, and there is no defense of claim preclusion for D. A dismissal by notice is without prejudice unless the plaintiff has previously dismissed any federal or state court action on the same claim, in which case the dismissal by notice is with prejudice. (This is known as the "two dismissal rule.") Thus, the second dismissal by the plaintiff here operates as an adjudication on the merits. Must be done before D files an answer or MSJ. Leave of court to dismiss is not required if the only pending motion is a motion to dismiss.
45
EXCEPTION: When can a nonparty use issue preclusion?
When it is fair and equitable to use it offensively.
46
Cross-Claim
Generally, a party may assert a claim against a co-party if it arises from the same transaction or occurrence. All cross-claims are permissive. There is supplemental jurisdiction over cross-claims.
47
Federal Question Jurisdiction
A type of Subject Matter jurisdiction where a P, in a well-pleaded complaint, alleges a claim that arises under federal law.
48
Supplemental Jurisdiction
A court has the discretion to implement jurisdiction over claims that are not typically heard in federal court when the original claim is proper in federal court and the extra claims are part of the same common nucleus of fact that are such that a P would ordinarily be expected to try them in a single proceeding. Can have supplemental jurisdictions over claims by permissively joined plaintiffs not exceeding $75,000 possible in diversity cases.
49
Diversity of Citizenship Jurisdiction
A type of subject matter jurisdiction where the court has jurisdiction over the case because all P's are different citizens than all D's and the amount in controversy exceeds $75,000. Must have diversity when the case is commenced.
50
Indemnify
Bring in a third party to a case who is also liable.
51
Domicile of a Corporation
Where it is incorporated and where its principal place of business is located.
52
Rule 26(f) Conference
Where the parties discuss their discovery plan, considered claims and defenses, the possibility of settlement, and initial disclosures. They must submit a purposes discovery plan to court and address the timing of required discloses, subject, and timing of limitations.
53
What can be discovered?
Any non privilege matter that is relevant to the claim to defense and is proportional to the needs of the case
54
When can the court grant motions to amend?
Amendments are freely given when justice so requires. For statute of limitations purposes, proposed claims may be considered to relate back to the original filing date.
55
How many amendments is a plaintiff entitled to?
One 21 days after service, any other amendments are at the leave of the court by request.
56
What is required to be produced?
Relevant physical material such as insurance coverage, videos, list of people with discoverable information.
57
Motion for failure to state a claim for which relief may be gratned
pre answer motion states that there is nothing from which P can get relief from for which is in her complaint
58
Motion for Judgment on the pleadings
made after pleadings are closed (once D answers)
59
Counter Claim
D assets a claim against P
60
Pre Trial Order
court can modify only to prevent manifest injustice even after trial has begun.
61
How long does a D have to remove a case to federal court?
30 days after receipt of service of the initial pleading or summons or 30 days after becoming removable. However, if its based on diversity and it takes over a year to become removable it can't be removed.
62
How to serve a defendant?
ADD FEDERAL RULES. or it can be served on any individual pursuant to the law of the state where the court sits. but it must be constitutional and reasonably calculated to give D notice of the action.
63
Personal Jurisdiction Defense
A d can object to PJ by raising it in a pre-answer motion to dismiss or by raising the defense in his answer. If he fails to he waives that defense.
64
Who can parties gain discoverable information from?
parties may obtain discovery from individuals with knowledge of any discoverable matter, not just parties to the action.
65
What to do when questions are outside the scope of discovery in a deposition?
A person from whom discovery is sought by means of a deposition may move for a protective order in the court in the district where the deposition is taken. If the motion for a protective order is granted, the court may require the party opposing the motion to pay the moving party's reasonable expenses, including attorney's fees.
66
Personal Jurisdiction
Power over the defendant. State law must authorize the jurisdiction and such jurisdiction must be constitutional. This is either General or specific. Either where D is at home, where D has personal contacts, or if D has consented.
67
Personal Jurisdiction Long Arm Statutes
States usually authorize defendants who are present in the state, domiciled, conduct continuous business and essentially at home, consent to jurisdictions, or commit an act covered by the long arm statute.
68
Constitutional Limitation on Personal Jurisdiction
The defendant must have such minimum contact with the state that the exercise of personal jurisdiction is fair and reasonable. Did the d purposely avail himself of the benefits and protects of the state where he could have anticipated being brought to court here?
69
Subject Matter Jurisdiction
The right of a court to hear a case, either diversity or citizenship
70
Interpleader
The exception to complete diversity applies if there will likely be a separate action that results in double liability for a stakeholder. A Rule 22 interpleader requires diversity and no federal question. A statutory interpleader requires diversity between any two claims and $500. Service can be nationwide and the venue is proper where any claimant resides.
71
Ailenage Jurisdictions
the controversy between us citizens and citizens of another country.
72
Domicile of unincorporated associated and LLCs
citizenship of all its members
73
Domicile of Class Actions
All named P's
74
Domicile of Non resident US citizens
not a citizen of any us state nor an alien
75
Aggregation of Amount in Controversy for Diversity Jurisdiction
Doesn't include interest and costs or counterclaims, can aggregate claims by one P to a single D, and can't aggregate separate claims against multiple Ds. Several P's can aggregate against one D to enforce a single title or right.
76
Compulsory counterclaim
Must be brought in the current action, if not brought then waived. Can invoke supplemental jurisdiction. A claim that arises out of the same transaction or occurrence as the plaintiff's claim
77
Permissive Counterclaim
May be brought in the current action or can be brought in another action. Needs original jurisdiction. a claim that arises out of an unrelated transaction.
78
Erie Doctrine
when a state law-based claim is brought in federal court based on diversity of citizenship, the federal court generally applies the substantive law of the state in which it is sitting. However, where a specific federal statute or the Federal Rules of Civil Procedure are on point, the federal court must apply federal procedural law as long as the federal rule is valid. Under the Rules Enabling Act, a Federal Rule is valid if it deals with "practice or procedure" and does not "abridge, enlarge, or modify" a substantive right. If there is no rule on point and it is questionable whether the rule is substantive or procedural look at the outcomes applying each rule and see how they differ.
79
Exceptions to Diversity
Probate, Divorce, Alimony, or Child Custody.
80
Equitable Reilef in Diversity Cases
issuance of an injunction, specific performance, and rescission of a contract. To determine if the amount in controversy is met look at the plaintiff's viewpoint or the defendant's viewpoint.
81
Are federal defenses enough to invoke FQJ?
no, need to have an action under federal law.
82
Clearly Substantive Areas of Erie Doctrine
1. Conflict of law rules
2. Elements of a Claim or Defense
3. Statute of Limitations
4. Rules for tolling SOL
5. Standard for granting a new trial because the jury's damages award was excessive or inadequate.
Ask would applying/ignoring the state law affect the outcome. If yes then substantive.
83
Forum Non-Conveniens
This applies when there is another court that is the center of gravity in a case but can't transfer because it is in another judicial system. The case will stay or be dismissed.
84
When must a non party intervene as a matter of right?
First, a nonparty may intervene when it has an unconditional right to do so by a federal statute. Second, a nonparty may intervene if (i) it has an interest in the property or transaction that is the subject matter of the action; (ii) the disposition or resolution of the action may as a practical matter impair the nonparty's ability to protect its interest; and (iii) the nonparty's interest is not adequately protected by an existing party in the action.
85
What does the state court have jurisdiction over?
All cases
86
Injunctions against state court proceedings
The federal court generally may not enjoin pending state proceedings. They can be against threatened state criminal proceedings to prevent clear and imminent harm that cannot be remedied with a criminal appeal.
87
Immunity from service
If D goes to state X to appear as a party witness or attorney in a different civil case in state X D can't be served with the process for a civil case in federal court in state x.
88
Temporary Restraining Order
Have to show that it is necessary to prevent irreparable injury if the wait for the other side to be heard. Have to show in writing efforts to give notice to the other side or why there is no notice. The applicant has to post a bond in case there are wrongful damages to the other side. Can't be more than 14 days. If it goes beyond the like period, 28 days, it can be treated as a preliminary injunction
89
Complaint
Generally, the P is required to assert short and plain statements in the complaint to put the other side on notice of the claim being asserted; detailed assertions of facts underlying the claim are generally not required. There must be a claim upon which relief can be granted. However, there are certain special pleading rules that require a party to state more detail under special circumstances, including claims that assert fraud, special damages, or mistakes. Under such special circumstances, the federal rules specifically require that a plaintiff assert the claim for relief with particularity.
90
What motions need to be raised first answer to the complaint?
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
91
Other Pre answer Motions
Motion for a more definite statement and motion to strike
92
Answer
Sets for specific or general denials by a defendant. Reply after this by P is not generally needed. Affirmative defenses must be raised in the answer.
93
Relate Back Doctrine
if it concerns the same conduct, transaction, or occurrence it relates back to the original complaint and therefore the statute of limitations. If a complaint is being amended to change the defendant, it relates back only if the new party received notice of the action so they won't be prejudiced, knew or ould have knew of P's mistake concerning identity of the prior party sued so that they would have been the first party sued.
94
Rule 11
The attorney certifies the purpose upon presenting the paper to court and usually needs to sign a pleading. In signing a pleading, the attorney represents, among other things, that he has made a reasonable inquiry into the factual and legal grounds for the pleadings. Here, had the attorney performed any sort of research into the matter, he would have discovered the unusually short statute of limitations period and that, as a result, the plaintiff did not have a valid cause of action.
95
Rule 11 Sanactions
judge has the discretion to place sanctions for violating rule 11 limited by a deterrence factor
96
Compulsory Joinder
Joinder of a party is compulsory when the court can't complete relief without the absent party, there is an interest that will be impaired for the absent party, and the parties are at substantial risk for multiple or inconsistent judgments without the missing party. If any of the above are true SMJ or venue won't be destroyed by joining the party. The most typical way in which compulsory joinder is raised is by a Rule 12(b) motion to dismiss for failure to join an indispensable party.
97
What if an absent party can't be joined in a compulsory joinder?
The court will consider whether to proceed based on prejudice to the absent party, whether the judgment can be shaped to avoid prejudice, the adequacy of the judgment without the absent party, and whether another forum can hear the entire case.
98
Premissive Joinder
Joinder is permissive when arises out of the same transaction and occurrence and there is a common question of fact or law
99
Class Action
in order to have a class action is numerosity, common questions of law or fact, named parties' interests are typical of the class, the named parties will ensure fair and adequate representation, and either separate actions risk inconsistent results or harm absent members, injunction or declaratory relief is an appropriate or common question of law or fact predominate and class action is superior to other methods. Named members control diversity.
100
Effect of class action judgment
all members are bound unless they opted out of the class. Notice is given so that people can opt-out. Notice is given of settlement so members can object at the fairness hearing.
101
Class Action Fairness Act
Federal jurisdiction if any member of the P class is diverse from any D, the aggregated amount in controversy exceeds 5 million and there are 100+ members to the class. Local considerations are also taken into consideration and can be heavily weighed.
102
Shareholder Derivative Suits Procedure
P must have been an s/h at the time or tx. Must consider corporations' damages for the amount and venue where the corporation could have sued the same defendants
103
Initial Disclosure
generally disclosure of witnesses who support claims or defenses and materials that support claims or defenses. These are required without anyone asking. copies or descriptions of tangible things that are in the disclosing party's possession or control and that the disclosing party may use to support its claims or defenses as an initial disclosure.
104
What must be disclosed about an expert?
Testifying expert's names and their reports
105
What are pretrial disclosures?
Trial witnesses, depositions to be used at trial, exhibits
106
How to limit discovery?
Protective orders can limit or end discovery if abused
107
Types of Discovery
Pre Action depositions, oral depositions (need notice or subpoenas of nonparties), written depositions, interrogatories, product of physical material, request for admissions (if these are not answers it is deemed admitted)
108
Motion to Compel Disclosure Requirement
must certify a good faith attempt to resolve the dispute with an opponent, the court will look at the discoverability of the things to be produced.
109
What happens if you fail to comply with a court order?
Sanctions
110
What happens if you fail to disclose, admit, or attend your own dep, serve answers to ROGs, or respond to requests for inspection?
Could have to pay expenses, certify good faith attempt to resolve dispute and sanctions.
111
Use of depo at Trial
for impeachment, dead unavailable or absent witness, for any purpose if deponent is the adverse party.
112
Rule 16(b)
scheduling conference
113
What amendment gives the right to trial?
7th. The Seventh Amendment preserves the right to a jury trial for both the plaintiff and defendant for civil actions in federal court of facts in all "suits of common law" where the amount in controversy exceeds $20. The determination is historical and turns initially on whether the claim or relief was available at law or in equity in 1791. However, the Supreme Court has demonstrated a clear preference for jury trials in doubtful cases and has held that, if damages are claimed as part of an action seeking an injunction, the defendant cannot be denied a jury on the damages issues on the ground that they are "incidental" to the equitable relief. As such, when a case presents both legal and equitable claims, the right to a jury is preserved for all legal claims, but not for equitable claims. Instead, the legal claim should be tried first to the jury, and the equitable claim will go to the court (the jury's finding on fact issues will bind the court in the equitable claims).
114
A required number of jurors?
at least 6 no more than 12, if drops below 6 during a trial you get a mistrial unless parties stipulate that less than 6 is fine.
115
Involuntary dismissal
made with prejudice when a party fails to prescute the case or to comply with the rules or a court order
116
Voluntary dismissal
without prejudice ones as a matter of right can also be by stipulation or court order. Must be done before D files an answer or MSJ. Leave of court is not required if the only pending motion is a motion to dismiss.
117
Motion for relief from judgment
used when there are clerical mistakes or other grounds for relief from judgment.
1. Clerical Mistake - Anytime
2. mistake, inadvertence, surprise, or excusable neglect; - reasonable time not more than a year
3. newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; - reasonable time not more than a year
4. fraud, misrepresentation, or other misconduct of an adverse party; - reasonable time not more than a year
5. the judgment is void; - reasonable time
6. the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; - Reasonable time
7. any other reason justifying relief from the operation of the judgment. - Reasonable time
118
What final orders are reviewable on appeals?
a.Interlocutory orders as of right—reviewable
b. Interlocutory Appeals Act—review discretionary
c. Collateral order rule—reviewable
d. Orders may be made appealable (or non-appealable) by writ.
e. Certification of a class action—can be appealed within 14 days of order
119
Who is bound by a judgment?
Parties and their privies, if a nonparty is bound they are bound by issue preclusion except some states allow this, and others look at whether the issues are identical, is there a final judgment on the merits, did the party have a fair opportunity to be heard and whether it is fair or equitable. Absent a court order, no execution on judgments is allowed for 30 days after entry except for injunctions or receiverships, which are not held up unless otherwise ordered by a court.
120
Entry of Default
entry by the clerk on the docket sheet when P files and D never appears in 21 days.
121
Default judgment by a Clerk
when D failed to appear at all, the claim is a certain sum, P gives an affidavit of the sum owed, and D is not a minor or incompetent.
122
Default Judgment by Judge
D is entitled to notice of the hearing if they appeared. Limited to what is pleaded in the complaint.
123
Motion to set aside
D moves for the court to set aside default judgment when there is good cause or a viable defense
124
Jury Challenges
a juror may be challenged for cause because they won't be impartial. There is an unlimited number of challenges by P.
P can have 3 peremptory challenges for no reason. (except can't be based on race or gender)
125
Jury Instructions
Instructed on law, parties submit proposed instructions at the close of evidence.
126
Final Judgment Rule
The losing party has a right to appeal if the court's order is a final judgment. A final judgment is one that determines the merits o the entire case.
127
Standards of Review on Appeal
1. Review of Questions of Law
2. Review of Question of Fact in a Bench trial
3. Review of Question of Fact in a Jury Trial
4. Review of Discretionary Matters
5. Harmless Error
128
Review of Questions of Law on Appeal
District judge decides questions of law the court appeals uses de novo standard and no deference is given to the district judge
129
Review of Questions of Fact in a Bench Trial
In a bench trial, the judge acts as the fact-finder, and the appellate court will give deference to the judge's findings of fact. District judge determines a question of fact the court of appeals will affirm unless findings are clearly erroneous.
130
Review of Question of Fact in a Jury Trial
findings of a fact by a jury are given great deference, the court will affirm unless reasonable people could not have made that finding
131
Review of Discretionary Matters on Appeal
whether to grant a motion teh court will affirm unless there is an abuse of discretion
132
Harmless Error Review
not every error requires an appeal. If it did not affect the outcome of the case it doesn't need to be appealed.
133
How to remove a case?
Removal is accomplished by filing a notice of removal with the federal court of the state in which the case was filed. A copy must be served on the P and another copy should be filed with the state court the action is being removed from.
134
Deposition of a Corporation
When giving notice of deposition to an organization, a party may name the organization and state with reasonable particularity the matters to be covered. The organization and the requesting party must then confer about the topics to be covered in the deposition, and the organization will designate individuals to testify about those topics on its behalf.
135
Indispensable Party
a party in a proceeding that must be included in a lawsuit in order for the court to render and execute a final judgment. the court considers a number of factors. However, the Supreme Court has held that a joint tortfeasor subject to joint and several liability is not a person needed for just adjudication.
136
A motion for judgment on the pleading accompanying with other matters
A party making a motion for judgment on the pleadings and accompanying it with an affidavit or other matters outside the pleadings may in reality be making a motion for summary judgment, putting the wrong label on the motion. The court is expressly authorized to treat such a motion as one for summary judgment and to conduct subsequent proceedings on the motion in accordance with the rule on summary judgment, giving the parties full opportunity to present material made relevant by that rule.
137
In camera inspection
The procedure by which a judge inspects evidence outside the presence of the litigants or third parties
138
Remand Procedures
If the plaintiff bases the motion to remand on a defect other than subject matter jurisdiction (i.e., a defect in the removal procedure), the motion to remand must be brought within 30 days of removal. There is no such time limit for a lack of subject matter jurisdiction. The court must remand whenever it is shown that there is no subject matter jurisdiction.
139
Pre Trial Conference
The court has the power to call 1 or more pre-trial conferences for a variety of reasons as necessary to expedite trial and foster settlement. This is to be attended by at least one of the lawyers and by unrepresented parties. A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference. Additionally, the court must require the disobedient party or counsel to pay expenses incurred (including attorneys' fees) by other parties unless the court finds that circumstances make such an award unjust.
140
Supplemental Jurisdiction Exception
The supplemental jurisdiction statute specifically prohibits the use of supplemental jurisdiction by plaintiffs against persons made parties under Rule 19. It is also contrary to Rule 19(b), which provides for an analysis of what a court should do if there is a Rule 19(a) party who cannot be joined because of jurisdiction.
141
Collateral Attack
A collateral attack is the name used to describe a defendant's ability to challenge a default judgment where the defendant never appeared in the action at all. Default judgments that are either constitutionally or procedurally defective are subject to collateral attacks.
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Constitutional Minimum Contacts Fairness factors for PJ
judicial efficiency, the defendant's burden, the plaintiff's interest, the forum state's interest, and the shared states' interest. The burden to the defendant is "so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent.
143
Subpoena of Non-Parties for Discovery
A party may serve on a nonparty a subpoena that compels the nonparty to produce physical material, including documents and electronically stored information, relevant to the pending action
144
Common Question Class Action
a judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt-out.
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Does the Judget need to set forth findings of fact in a written opinion or memo?
No, the judge's findings of fact (and conclusions of law) may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court
146
Motion to Strike
Before responding to a pleading or, if no responsive pleading is permitted, within 21 days after service of the pleading, a party may move to have stricken any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.
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Certiorari
Subject matter jurisdiction in federal court based on a federal question must appear as part of the plaintiff's cause of action as set out in a well-pleaded complaint. The defendant's answer or defense is not relevant because the existence of a defense based on federal law will not give federal question jurisdiction. Supreme Court jurisdiction extends to final judgments rendered by the highest court of a state in which a decision could be had. These judgments may be reviewed by the Supreme Court by certiorari where a right is claimed under the federal Constitution
