Civil Procedure Flashcards

Question

Diversity of Citizenship Requirements

Answer 1

Right kind of litigants (parties) Amount in controversy exceeds $75k

Answer 2

Citizens of different US states, or P in US state and D in foreign country (alienage jdx) No SMJ if any P is citizen of same state as any D (complete diversity) Non-US citizen cannot be a citizen Ie. can invoke alienage but cannot invoke diversity JDX withdrawn if that permanent resident is domiciled in the same state as an adverse party Citizenship of a natural person Domicile, and only one state

Answer 3

NEEDS TO BE even a penny over, EXCEEDS Calculating AIC: Interest wrinkle: Prejudgment interest not included Interest as part of claim included Good faith allegation by P usually controls unless to a legal certainty $75k+ is not possible

Answer 4

A single P may aggregate all claims against a single D Don’t need to be related claims Multiple P’s cannot do this

Answer 5

Look to total value of claim for joint claim Not aggregation; not adding anything

Answer 6

AIC is determined by looking at value of relief to plaintiff or defendant (ie. injunction increased home value by 75k, or costs D 75k to remedy)

Answer 7

Physical presence in new place AND Subjective intent to make new place domicile for foreseeable future Domicile notes: DC is a state Remember diversity is tested when the case is filed

Answer 8

Any state or country where incorporated, and One state or country where principal place of business (PPB) is Where the corporation’s managers direct, coordinate, and control the business (nerve center, usually headquarters) Unincorporated association Takes on citizenship of all members General and limited partners

Answer 9

Representative of decedent, minor, or incompetent takes on citizenship of person represented

Answer 10

Federal courts decline actions for: divorce, alimony, child custody, and Probate

Answer 11

Sham transactions to create diversity will be ignored But: Genuine voluntary changes of citizenship before action commenced creates diversity even if that was motive

Answer 12

Claim arises from federal law Determined by well pleaded complaint Not enough to just raise issue Claim itself must arise under federal law Ask: Is P enforcing a federal right?

Answer 13

Procedure allowing defendant to move case from state court to federal court Court will remand (send back to state court) if removal improper

Answer 14

Case filed in state court may be removed to federal court if it could have been originally filed in federal court

Answer 15

Notice of Removal: Grounds of removal stated Court permission not required Served on adverse parties File in federal court, copy in state court

Answer 16

D must remove no later than 30 days after service of paper showing case is removable Usually service of process (which includes copy of the complaint)

Answer 17

All D’s served with process must join Earlier-served D may join later-served D’s removal even if 30-day period expired

Answer 18

Plaintiff’s can never remove Only Ds

Answer 19

Removal starting point is always SMJ Limits on removal based on diversity: In-state d exception: Any D is citizen of forum state One-year time limit for removal If improperly removed, will be remanded not rejected

Answer 20

30 days to remove from time it becomes removable Includes when non-diverse D leaves case No removal more than 1 year after case filed (usually) Exception: One year restriction does not apply if D originally joined to prevent removal

Answer 21

Case must be removed to federal court embracing the state court Doesn’t matter if not proper venue under venue statute

Answer 22

P must move to remand within 30 days if defect other than lack of SMJ 30 day limit does not apply if federal court has SMJ Lack of SMJ is never waived Objection can be raised at any time

Answer 23

Must have a case already in federal court Step 1: Look for independent SMJ in additional claim No need for supplemental if claim SMJ over additional claim Step 2: Supplemental? Test: Must arise from common nucleus of operative fact as claim in existing federal court case Same transaction or occurrence always satisfies common nucleus test Note: P’s cannot invoke supplemental jurisdiction in diversity cases Exception: multiple P’s, and claim by one of them does not meet the AIC requirement Then can check for supp jdx with test

Answer 24

Step 1: Look for SMJ in additional claim Step 2: If none, check for common nucleus of operative fact (TOSTO) with existing federal court claim Step 3: Check for limit on P’s in diversity Fed q: no limits P’s can’t use supplemental except for below-limit claim Step 4: Court can decline supp jdx Usually if claim on which federal smj is based is dismissed early

Answer 25

Step 1: Is there a federal law on point that directly conflicts with state law? If so, you apply that federal law as long as it’s valid (supremacy clause) If it’s FRCP, it’s presumptively valid if arguably procedural Step 2: If no federal law on point, federal judge must apply state law if issue is substantive and not applicable to federal law Clearly substantive: Conflict or choice of law rules Elements of a claim or defense Statutes of limitation Tolling of statutes of limitations Standard of granting a new trial because the jury’s award was excessive or inadequate Step 3: Determine whether issue is substantive if not one of the above 5 Outcome determinative (will this affect the outcome of the case?) Balance interest factors (either system have strong interest in rule applied?) Avoid forum shopping Eerie says there’s no general federal common law Except: International relations, state disputes, etc. No role for state law

Answer 26

Exactly where to bring the claim Two possible venues: Any district where all D’s reside (residential venue) OR Where substantial part of claim arose or substantial part of property is located (transactional venue) Does not apply if removed case, applies to initial filing

Answer 27

Venue proper in any district where D resides if all Ds reside within state Ds have to reside in same state for residential venue

Answer 28

Substantial part of claim must arise in the district “Substantial part” =/= all More than 1 district can satisfy requirement

Answer 29

Does not matter where Ps reside If Ds reside outside US, any federal district (unless one inside)

Answer 30

Human resides in federal district where they are domiciled Businesses reside in all districts where subject to PJ

Answer 31

Case goes from one trial court in a judicial system to another within the same judicial system Ie. cant transfer from fed to state, outside US, etc Venue and PJ must be proper with transfer without waiving Exception: Can transfer to any venue if all parties consent and court finds cause for transfer

Answer 32

Convenience of the parties and witnesses, and in the interest of justice Burden always on people seeking transfer Will consider public and private factors Law, convenience for witnesses and evidences, etc Effect on choice of law Transferee court usually must apply choice of law rules of transferor court Forum Selection Clause Provision in contract by which parties agree where disputes will be litigated Motion to transfer used in this case if P sues elsewhere, but still must be proper Key: Federal law enforces these clauses if not unreasonable Unless public interest factors say otherwise (unlikely) Transferee court applies own choice of law rules

Answer 33

If venue improper, court will: Transfer if in interest of justice or Dismiss

Answer 34

Center of gravity is elsewhere in another judicial system Stay or dismissal (transfer not possible) Court may impose conditions on D (ie. waive pj for other court)

Answer 35

Grounds of SMJ ---Short and plain statement showing P is entitled to relief ---Demand for relief ---Note: No need for showing PJ or venue Plaintiff must plead sufficient facts to support a plausible claim ---Plausible is determined by judge’s experience and common sense ---D can challenge with 12(b)(6)

Answer 36

Fraud Mistake Special damages

Answer 37

D must respond by motion or answer within 21 days (or 60 days if D waived service)

Answer 38

Issues of form: Rule 12(e) -Motion for more definite statement -Complaint is so vague that more is needed Rule 12(f) -Motion to strike ---Remove redundant or immaterial things in a pleading ---Both parties may move to strike

Answer 39

Waivable defenses (Waived if not addressed in first rule 12 response) ---Lack of personal jdx ---Improper venue ---Improper Process ---Improper service of process Can be raised later ---Failure to state a claim ---Failure to join indispensable party ---Objection to SMJ Denied motion to dismiss, serve answer within 14 days

Answer 40

Response to allegations in complaint ---Admit ---Deny ---Lack of sufficient information Failure to deny allegation is an admission ---EXCEPT: amount of damages Waived if not asserted in answer ---Statute of limitations, res judicata, etc Court may treat lack of affirmative defenses as waiver Affirmative defenses ---P need not respond

Answer 41

By Plaintiff ---The plaintiff has a right to amend her complaint once no later than 21 days after the defendant serves her first Rule 12 response. By Defendant ---The defendant has a right to amend his answer once no later than 21 days of serving it Amendments After Time to Amend Expires ---With court permission if justice so requires ---Allowed unless delayed too long, will prejudice other party, or would be futile

Answer 42

Can only come up at trial Variance comes up when the evidence at trial does not match what was pleaded. If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence.

Answer 43

Amended pleading treated as if filed on date that original pleading filed ---So long as it concerns same TOSTO Avoids statute of limitations problem

Answer 44

Amendment concerns same TOSTO Defendant had knowledge of case so won’t be prejudiced by amendment Defendant knew or should have known P made a mistake and should have been named Only applies when P sues wrong D but right D knew about it, statute runs

Answer 45

Occurred after pleading is filed Discretion of the court for allowing in ---Motion for leave to file a supplemental pleading, not an amendment

Answer 46

Certifying that to the best of your knowledge and belief, after reasonable inquiry, these things are true: ---Paper not presented for improper purpose ---Legal contentions warranted by law or good argument law should be changed ---Factual contentions and denials have evidentiary support Recertify every time you advance the argument

Answer 47

Sanctions imposed for breaking this, law firm usually jointly liable Court may raise Rule 11 violations sua sponte Can make order to show cause before sanctions Usually non-monetary sanctions (classes, etc) Monetary sanctions paid to court, not D usually Safe Harbor Provision: Party seeking sanctions must serve motion on opponent Party in violation has 21 days to fix

Answer 48

How big the case gets, defines scope of the case Must be authorized by rule Must be SMJ

Answer 49

P may join as many claims as P has against D Must be SMJ ---Note: Can aggregate claims to meet AIC

Answer 50

Can join multiple Ps or Ds if: Arise from same TOSTO and Raise a common question of law or fact

Answer 51

1. Is absentee (nonparty) necessary/required? 2. Can absentee be joined? 3. If not, can case proceed without absentee?

Answer 52

Three tests: Can complete relief be accorded among existing parties? Will absentee’s interest be harmed? Will D’s be subject to multiple or inconsistent liability? NOTE: Joint tortfeasors not necessary

Answer 53

Feasible if: PJ over absentee Federal SMJ over claim by or against absentee

Answer 54

If not, can proceed? If absentee cannot be joined, court must proceed or dismiss entire case Court considers whether: Alternative forum available Actual harm to absentee is likely Court can shape relief to avoid any harm If court dismisses, then the absentee becomes an indispensable party

Answer 55

Any claim back against complaining party–usually by D against P Response required within 21 days of service by P

Answer 56

Arises from same TOSTO Use it or lose it ---Only if required to answer

Answer 57

Does not arise from same TOSTO Not lost – can sue in separate case SMJ is often the issue, must have it for fed ---Then maybe supplemental jdx

Answer 58

Claim against co-party arising from same transaction or occurrence as underlying case NEVER COMPULSORY Need SMJ No fed? Then maybe supplemental (common nucleus by definition, but watch for limitation on diversity cases for supplemental) NOTE: Claim BACK has to be counterclaim, as now opposing parties

Answer 59

Brings in new party For indemnity or contribution Ie. shifts liability to the 3PD Indemnity shifts liability for full claim Contribution shifts pro rata liability, must cover pro rata portion of the claim

Answer 60

Must: File 3P complaint Must serve, have PJ, etc Right to implead within 14 days of serving answer, but then requires court permission

Answer 61

Both can make claims against each other as long as under same TOSTO Still need SMJ ---Remember limit on supp jdx only for Ps, so no worries here for 3PD

Answer 62

Non-party, absentee, uses intervention to bring self into case as either P or D Court can realign intervening party if they came in on the wrong side Must be timely

Answer 63

If absentees interest may be harmed without intervention, and Interest not adequately represented by current parties ----Same test for test B for necessary parties

Answer 64

Open ended Absentees claim or defense has one common question of law or fact, intervention is permissive ---Discretionary to the court ---Usually allowed without any delay or prejudice ---MUST HAVE SMJ --------Don’t forget Supplemental, and limitations for P intervenor

Answer 65

a way for a party who holds property (a stakeholder) to initiate a suit between all claimants, who are parties claiming a right to that property. An interpleader allows the stakeholder to bring all claimants into the same action, instead of litigating against claimants in separate actions.

Answer 66

Four prerequisites: Numerosity ---Too many for separate suits Commonality ---One stroke decides for all Typicality ---Class reps claims typical of class members Adequate representative ---Fairly adequately represents the class

Answer 67

Type 1 – Prejudice Class treatment necessary to prevent harm or prejudice Very rare Type 2 – Injunctive or Declaratory Relief Defendant treated class members alike Cannot seek damages More likely on exam Type 3 – Common Questions or Damages Common questions predominate over individual ones Class action is superior method for handling dispute BIG ON BAR

Answer 68

Court defines class, claims, issues and defenses Court appoints counsel Certification is immediately appealable

Answer 69

In a Type 3 class action, the court must notify class members that they are in a class. This means individual notice (usually by mail) to all reasonably identifiable members. The notice, paid for by the rep, tells the class members various things, including that they: ---Can opt out; ---Will be bound by the judgment if they don’t opt out; and ---Can enter a separate appearance through counsel This notice is not required in Type 1 or Type 2 class actions

Answer 70

There is no right to opt out of a Type 1 or Type 2 class action. Can only opt out of Type 3

Answer 71

The parties can settle or dismiss a certified class action only with court approval. And, in all three types, the court must give notice to the class members to get their feedback on whether the case should be settled or dismissed. If it’s a Type 3 class, the court also might refuse to approve the settlement unless members are given a second chance to opt out

Answer 72

If the class action asserts rights under federal law, FQ jurisdiction may be used. For diversity cases, only the citizenship of the class rep is considered, and her claim must exceed $75,000. ---That means that as long as the class rep’s claim meets the requirements of diversity, the class action may use diversity.

Answer 73

Special grant of SMJ ---Class = 100 members ---Any class member is diverse from D ---Aggregated claims exceed $5 million Any D may remove Local actions stay local ---Where most class members and D are in same region

Answer 74

Names, numbers, addresses of people with discoverable information if might be used to support claims or defenses Documents (ESI (electronically stored info), tangible things) if might be used to support claims or defenses ---That YOU want to use ---Must be in your control Computation of damages Insurance coverage

Answer 75

Consulting experts need not be disclosed absent exceptional circumstances Testifying experts must be disclosed Written report by expert must be disclosed Draft reports and communication are protected work product

Answer 76

30 days before trial Identities of witnesses Documents No surprises

Answer 77

Must come after Rule 26(f) conference ---Only exception is request to produce Paid by responding party usually

Answer 78

Live testimony of parties or non-parties, under oath, given in response to questions by counsel

Answer 79

Non-parties must be served with subpoena Notice of Deposition enough for party

Answer 80

Subpoena requiring deponent to bring material to deposition.

Answer 81

Farthest they can be forced to travel is 100 miles from their home, absent consent

Answer 82

Business gets notice, and designates proper person to be deposed

Answer 83

Unless court orders otherwise: No more than 10 depositions Cannot depose same person twice Cannot exceed one 7-hour day

Answer 84

Impeach witnesses for inconsistent statements Use against adversarial party for any purpose

Answer 85

Written questions to be answered in writing under oath ---Only to parties ---Limited to 25 (unless court order or stipulation) ---Must answer in 30 days Based on reasonably available information (not just recollection) Legal contention rogs are fine

Answer 86

A request to produce asks a party to make available for review and copying documents or things, including electronically stored information (“ESI”), or to permit entry on designated property to inspect, measure, etc. ESI must be produced in the form that the requesting party specifies, but the responding party may object. The disclosing party must respond to the request in writing within 30 days of service, stating that the material will be produced or asserting objections. Only parties can be sent a request to produce, but a nonparty can be served with a subpoena to require her to disclose the same types of information.

Answer 87

Process ---Court order required ---Parties only ---Health must be in controversy ---Good cause Medical examiner writes report and examined can ask for report ---If so, then must release all reports from own doctors on medical procedures or conditions

Answer 88

Written request asking opponent to admit facts ---Must respond within 30 days ---Response: deny, deny knowledge, object, or admit ---Reasonable inquiry must be made before answering

Answer 89

Signed under oath Rule 11 doesn’t apply, but similar requirement

Answer 90

If new facts come to light after responding to discovery that make a required disclosure, interrogatory, request for production, or request for admission incomplete or incorrect, the party must supplement her response to discovery. This is a self-policing obligation.

Answer 91

Party can discover anything: relevant to claim or defense and proportional to needs of case Need not be admissible

Answer 92

Defendant can move for protective order or object to discovery of ESI Undue costs are considerations for ESI Court may allocate costs if P shows good cause to obtain despite costs

Answer 93

Party can object on the basis of evidentiary privilege

Answer 94

Material prepared “in anticipation of litigation” Does not have to be attorney, any party or rep of party

Answer 95

Must show: Substantial need and Undue hardship without Opinion work product cannot be discovered though (mental impressions, conclusions or legal theories)

Answer 96

Must claim protection expressly Must prepare privilege log ---Describes materials in detail ---Enough detail to allow judge to determine whether privileged

Answer 97

Notify other party promptly The other party then must return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver.

Answer 98

The party must certify that she tried in good faith to resolve the issue without court involvement; that is, she asked the other side to “meet and confer.” Must try to work out without court involvement Court can deny and order discovery, limit discovery, or permit discovery within terms

Answer 99

When a producing party responds, but not fully (10.7.2. above), sanctions are a two-step process: The requesting party moves for an order compelling the producing party to answer the unanswered questions, to produce the unproduced material, etc., plus costs (including attorneys’ fees) of bringing the motion. If the producing party violates the order compelling her to answer, the court can enter “merits” sanctions, along with costs and attorneys’ fees for bringing the motion. The producing party could be held in contempt for violating a court order (except there is no contempt for refusal to submit to a medical exam).

Answer 100

If the producing party fails to respond at all, the court can enter “merits” sanctions plus costs (and attorneys’ fees for the motion). There is no need to get an order compelling answers; you go directly to “merits” sanctions.

Answer 101

Partial response: Requesting party moves for an order compelling discovery Opposing party fails to respond to court order Merits sanctions including contempt But no contempt for refusal of medical exam Total failure to respond Enter merits sanctions right away, and costs and attorneys fees

Answer 102

Establishment order Strike claims or pleadings Disallow evidence Dismissal or default

Answer 103

Court orders measures to cure harm Can court enter “merits” sanctions? ---Only if the party who lost the ESI acted with intent to deprive the other party of the ESI. ---The court also may enter a default against the defendant when her conduct was in bad faith.

Answer 104

preserves the status quo until trial Must show: Irreparable harm Likely to win on the merits Balance of hardships Public interest Describe with specificity May be appealed as of right

Answer 105

preserves status quo until preliminary injunction A TRO may be issued “ex parte,” which means that a court has done something without giving notice to the other party. The court will issue a TRO ex parte only if: The applicant files a paper under oath clearly showing that if the TRO is not issued, she will “suffer immediate and irreparable harm” if she must wait until the other side is heard. The applicant’s lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant’s lawyer (or why such notice should not be required in this case). Must be specific, and state why issued, and why harm irreparable

Answer 106

Cannot exceed 28 days (14 days, plus 14 day extension) Treated like a preliminary injunction after 28 days

Answer 107

P may withdraw case without court order if D has not filed answers or motion for summary judgment

Answer 108

P makes motion for voluntary dismissal Court’s discretion to grant or deny First voluntary is without prejudice Second voluntary dismissal extinguishes claim

Answer 109

P may seek D’s default if D doesn’t respond to complaint within: 21 days after SoP 60 days if process waived Not automatic P must move for entry of default D can respond late until default on record

Answer 110

Clerk can enter default judgment if: D made no response (has not appeared) Claim for sum certain P gives affidavit of amount owed D is not a minor or incompetent Hearing and judge’s discretion if clerk can’t enter Recovery limited by amount in complaint Must be same kind of relief

Answer 111

Rule 12(b)(6) Court looks only to allegation of facts in complaint Do these facts (if true) state a plausible claim?

Answer 112

Summary judgment weeds out cases in which no trial is necessary. The only reason to have a trial is to resolve a dispute of material fact.

Answer 113

The party moving for summary judgment must show that: There is no genuine dispute on a material fact; and She is entitled to judgment as a matter of law. If the standard is met, the court is not always required to grant the motion. There may be some discretion to deny the motion (measured by an “abuse of discretion” standard on appeal).

Answer 114

Any party can move for summary judgment no later than 30 days after close of discovery.

Answer 115

The motion can be for “partial” judgment— for example, as to liability—and the case can go to trial on damages. Partial summary judgment is sometimes called summary adjudication.

Answer 116

In a summary judgment motion, the court can look at evidence. The court views that evidence in the light most favorable to the nonmoving party. The parties proffer the evidence, usually (1) affidavits, (2) declarations, (3) deposition testimony, or (4) interrogatories

Answer 117

Ruling on the summary judgment can be delayed if the party needs more time to respond Must specify what evidence will be once acquired

Answer 118

Cannot rely merely on complaint for evidence if there’s other evidence from opposing party

Answer 119

Not considered evidence unless verified Admissions Ie. not denying allegation is evidence of admission

Answer 120

at least 21 days before the court’s scheduling order, the parties “meet and confer” to discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information. They must present to the court a detailed discovery plan no later than 14 days after the Rule 26(f) conference.

Answer 121

The plan must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (for example, deleted files), etc Only request for production allowed prior to this

Answer 122

Roadmap of case to trial

Answer 123

The court may hold “pretrial conferences” to oversee the case. Final Pretrial Conference The final pretrial conference determines the issues to be tried and evidence to be proffered at trial. This is recorded in the pretrial conference order, which supersedes the pleadings. This order is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc., so that there are no surprises at trial.

Answer 124

Determines facts and delivers verdict A judge only trial is a bench trial

Answer 125

Pretrial motion outside jury to decide on certain evidence admissibility

Answer 126

Actions at law → Jury Actions in equity → Judge Mixed suits → Facts underlying damages tried first before jury Then facts relating only to equity claim are tried to judge

Answer 127

Must demand in writing Within 14 days of last pleading showing jury triable issue

Answer 128

Called “voir dire” Unlimited challenges for cause Generally 3 peremptory challenges ---No reason ---Can’t be based on race or gender

Answer 129

Minimum 6, max 12 ---Unless stipulated otherwise Verdict must be unanimous ---Unless stipulated otherwise

Answer 130

Judge may hold off-the-record conference to discuss jury instructions Objections to Jury Instructions Judge must tell parties: ---what instructions it will give and ---what instructions were refused Party must object on the record And objection must be before jury charged

Answer 131

General: Who wins and what relief Special: Jury answers questions, no bottom line (judge will give bottom line) Combo General and Special: General with written questions

Answer 132

General = clerk enters Special = judge approves, clerk enters Inconsistent answers: Court can put in proper verdict if inconsistent with verdict, and could order reconsider or new trial

Answer 133

Only impeached on external matters, not internal matters But a verdict will not be set aside if the misconduct was harmless

Answer 134

Judge determines the facts at trial Must record for finding of fact, orally or in writing along with conclusion of law

Answer 135

Standard: Reasonable people could not disagree on result Courts views evidence in light most favorable to non-moving party Motion can be made after the opposing party has been heard on the issue

Answer 136

Comes up AFTER trial, after jury returns verdict Same standard as JMOL Timing: 28 days after entry of judgment Requirement: A motion for JMOL must have been made at trial

Answer 137

Same timing as RJMOL: 28 days after entry of judgment It’s a “do over” because something at trial requires it Some reasons a new trial may be granted are: The judge gave an erroneous jury instruction; New evidence was discovered that could not have been discovered before with due diligence; Misconduct was committed by a juror, party, or lawyer, etc.; The judgment is against weight of the evidence (serious error of judgment); and Damages are inadequate or excessive RJMOL is more drastic as it changes the entire judgment

Answer 138

Damage figure shocks the conscience (excessive or inadequate) P gets a choice: remit a portion of damages or undergo a new trial MUST be a choice, can’t artificially lower alone Both state and federal court

Answer 139

Damage figure shocks the conscience (excessive or inadequate) D gets a choice: add to damages or undergo a new trial MUST be a choice, can’t artificially lower alone Only in state court

Answer 140

A defendant can submit formal offers to settle the case up to 14 days before trial. The benefit is that the rule contains cost-shifting provisions that apply when a plaintiff rejects an offer to settle and doesn’t do as well at trial as the offer.

Answer 141

Grounds --> Timing Clerical error | Any time Mistake, excusable neglect, (including viable defense) | Reasonable time (never more than one year) Fraud, misrepresentation, or misconduct by opposing party | Reasonable time (never more than one year) Newly discovered evidence that could not have been discovered with due diligence for a new trial motion. The newly discovered facts must have existed at the time of trial. | Reasonable time (never more than one year) Judgment is void (court did not have SMJ) | Reasonable time (no maximum)

Answer 142

Losing party has the right to appeal as long as there is a final judgment Wraps up entire case on the merits After making this ruling, does the trial court have anything left to do on the merits of the case?

Answer 143

is not a final judgment

Answer 144

30 days Filed in district court

Answer 145

Orders related to injunctions may be appealed TRO not an injunction TRO extended beyond 28 days becomes preliminary injunction

Answer 146

The Interlocutory Appeals Act allows appeal of a nonfinal order if: The district judge certifies that it involves a controlling issue of law; As to which there is substantial ground for difference of opinion; and The court of appeals agrees to hear it

Answer 147

The appellate court has discretion to hear an appeal on an issue if that issue: Is distinct from the merits of the case; Involves an important legal question; and Is essentially unreviewable if parties await a final judgment.

Answer 148

Judge wraps up case as to some claims or parties Not a final order if there are other claims or parties Court may direct entry of final judgment and expressly find no just reason to delay appeal

Answer 149

A court of appeals has discretion to review an order granting or denying certification of a class action. The party seeking review must do so at the court of appeals within 14 days of order. An appeal does not stay the proceedings at district court unless the court of appeals or district court says so.

Answer 150

An extraordinary writ of mandamus or prohibition is an original proceeding in the court of appeals to compel the district judge to make or vacate a particular order. The writ is not a substitute for appeal. It is available only if the district court is violating a clear legal duty.

Answer 151

Reviewed De Novo No deference given to trial judge on questions of law

Answer 152

“Clearly erroneous” standard for judge’s determination of fact Jury finding of fact will be affirmed unless reasonable people could not have made that finding

Answer 153

Judge’s ruling on discretionary matters reviewed under an abuse of discretion standard Ie. whether to give jury instruction But content of instruction is de novo

Answer 154

Not every error (even an error of law) requires reversal on appeal. No reversal is required if the error is harmless; that is, it did not affect the outcome of the case

Answer 155

Judgement already entered may preclude litigation in another case Different judicial systems: will apply the law of the judicial system of case 1. Always start with claim preclusion then go to issue preclusion

Answer 156

One case to seek rights to relief for claim Requires: Same Plaintiff and same Defendant (same configuration of parties) Final judgment on the merits ---Not: jdx, venue, indispensable parties Same claim ---Majority view: Same transaction or occurrence ---Minority primary rights view: Separate claims for personal injury and property damage Note to distinguish from compulsory counterclaim

Answer 157

Issue was litigated in one case, established in case 2 Five reqs: 1. Valid final judgment on the merits 2. Same issue was actually litigated and determined in case 1 3. Issue was essential to the judgment in case 1 4. Issue preclusion can be used only against previous party or in-privity with the party 5. By whom is preclusion being used – mutuality If not a party, then nonmutual issue preclusion

Answer 158

Person asserting preclusion to avoid liability was not party to first case but is D in next case As long as person against whom had full chance to litigate

Answer 159

Person asserting preclusion to support claim was not party but is a plaintiff in case 2 Most states do not allow this Federal common law and some states allow if “fair” factors met: In determining whether nonmutual offensive issue preclusion is fair, the court will consider whether: I. The party to be bound had a full and fair opportunity to litigate in Case 1; Ii. The party to be bound had a strong incentive to litigate Case 1. Iii. The party asserting issue preclusion could have easily joined to Case 1; and Iv. There have been no inconsistent findings on the issue.

Answer 160

Outer time limit for removal based on diversity

Answer 161

General time limit for SoP

Answer 162

Time to answer complaint or file a 12(b) motion if D waived service of process (add 30 days if outside US)

Answer 163

Time for initial removal Time for remand Time to return request to waive service of process (add 30 days if outside US) Time for appeals

Answer 164

Time after judgment to file a renewed motion for judgment as a matter of law Time after judgment to file a motion for a new trial

Answer 165

Time after service of complaint to answer the complaint or file a Rule 12 motion Time to amend pleading once, as a matter of course, after its service or after responsive pleading or motion is served Time to withdraw pleading after a Rule 11 motion is served

Answer 166

Expiration of TRO Time to file jury demand after last pleading directed to the jury triable issue is served Time to appeal class action certification or denial

Answer 167

Clerk may enter default judgment when: 1. Amount in dispute is certain 2. D has not appeared An appearance means any formal appearance or any action by the D indicating that they intend to contest the merits.

Civil Procedure Flashcards

(191 cards)