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Flashcards in Federal Jurisdiction and Procedure Deck (155):
1

MEE Six Components of Federal Civil Procedure

1. Jurisdiction and venue;
2. Federal law;
3. Injunctions and provisional remedies;
4. Pretrial procedures;
5. Trial procedures;
AND
6. Verdicts and judgments.

2

Two Branches of Jurisdiction

1. Personal Jurisdiction
2. Subject Matter Jurisdiction

3

Personal Jurisdiction

The ability of a court to exercise power over a particular defendant or item of property.

4

Two Limitations on Personal Jurisdiction

1. Statutory Limitations
2. Constitutional Limitations

5

Three Types of Personal Jurisdiction

1. In Personam Jurisdiction
2. In Rem Jurisdiction
3. Quasi in Rem Jurisdiction

6

Five Statutory Limitations on In Personam Jurisdiction

1. Where the Defendant is present in the forum state and is personally served with process;
2. Where the Defendant is domiciled in the forum state;
3. Where the Defendant consents to jurisdiction;
AND
4. Where the Defendant has committed acts bringing him within the forum state's long arm statutes.

7

Statutory Limitations on In Personam Jurisdiction: Physical Presence at Time of Personal Service

Most states grant their courts in personam jurisdiction over any defendant who can be served with process within the borders of the state, no matter how long he was present.

Exceptions:
1. Service by fraud or force invalid
2. Immunity of Parties and Witnesses

8

Statutory Limitations on In Personam Jurisdiction: Domicile

If a person has legal capacity, her domicile is the place:
1. she resides (even for a moment),
AND
2. Coupled with the intention to make that place her home.

9

Statutory Limitations on In Personam Jurisdiction: Consent to Jurisdiction

In Personam jurisdiction through consent by defendant:
1. expressed
2. implied
3. inherent
4. Voluntary Appearance (special appearance)

10

Statutory Limitations on In Personam Jurisdiction: Long Arm Statutes for Jurisdiction

Most states also grant their courts in Personam jurisdiction over nonresidents who perform or cause to be performed certain acts within the state or who cause results within the state by acts performed out of the state.

11

Approach to Start Arkansas Long Arm Statute Answer

As revised in 1995, the Arkansas long arm statute provides for personal jurisdiction "to the maximum extent permitted by the due process of law clause of the 14th Amendment of the Constitution.

Sentence two is "minimum contacts."

Sentence three "reasonableness"

12

Two Components of the Constitutional Aspect

1. Contacts with the forum (contact, relatedness, and fairness);
AND
2. Notice

13

Constitutional Limitations on In Personam Jurisdiction: Sufficient Contacts with the Forum

1. Physical presence
2. Domicile
3. Consent
4. Purposeful availment (shipping into state)
5. Foreseeability (reasonable)
6. Stream of Commerce
7. Systematic and Continuous Quantity of Products in State
8. Specific (1 item)/General( continuous and systematic shipping widgets forever) jurisdiction
9. Unclear on Internet cases.

14

Constitutional on In Personam Jurisdiction: Two Components of Sufficient Contacts with a Forum

1. Purposeful availment
AND
2. Fairness.

15

Fairness

1. Convenience;
2. Forum State's Interest;
3. Plaintiff's interest in obtaining convenient and effective relief;
4. The interstate judicial system's interest in obtaining the most efficient resolution of controversies;
AND
5. The shared interest of the states in furthering fundamental substantive social policies.

16

Constitutional Limitations on In Personam Jurisdiction: Notice

By a reasonable method used to notify the defendant of a pending lawsuit.

Best practical means for multiple or unknown parties.

Does not have to be actual notice.

17

Second Type of Personal Jurisdiction: In Rem Jurisdiction

Adjudicate rights of all persons with respect to property located in the state.

An in rem judgment does not bind the parties personally, but is binding as to the disposition of the property in the state.

18

Statutory Limitations on In Rem Jurisdiction

Statutes providing jurisdiction in actions for:
1. condemnation,
2. title registration
3. confiscation of property
4. forfeiture of a vessel,
5. distribution of the assets of an estate,
AND
6. a grant of divorce when only the complaining spouse is present and subject to personal jurisdiction. (status)

19

Constitutional Limitations on In Rem Jurisdiction

1. Nexus (in state, not brought in by fraud or force)
AND
2. Notice

20

Third Type of Personal Jurisdiction: Quasi In Rem Jurisdiction

A court without In Personam jurisdiction to determine certain disputes between a plaintiff and defendant regarding property when the property is located in the forum state.

21

Two types of Quasi In Rem Jurisdiction

1. Type 1 - involves disputes between parties over their rights in property within the state.
2. Type 2 - involves disputes unrelated to the in-state property and has been severely limited by the Supreme Court.

22

Statutory Limitations on Quasi In Rem Jurisdiction

Any judgment against the defendant can be satisfied only out of that property.

23

Constitutional Limitations on Quasi in Rem Jurisdiction

Nexus -
1. Type 1 - Presence of property
2. Type 2 - Minimum contacts with the forum.

Notice -
- best practical notice.

24

Procedural Requirements of Quasi In Rem Jurisdiction

Plaintiff must bring the asset before the court by attachement (or garnishment).

25

Subject Matter Jurisdiction

Limited to that authorized by the Constitution as implemented by federal state and decisional law.

26

Four Types of Subject Matter Jurisdiction

1. Diversity of Citizenship Jurisdiction
2. Federal Question Jurisdiction
3. Removal Jurisdiction
4. Supplemental Jurisdiction

27

Diversity of Citizenship Jurisdiction Requirements

1. Complete diversity (no plaintiff may be a citizen of the same state as any defendant)
AND
2. Amount in controversy exceeding $75,000.

**Must exist as of the time the suit is instituted.

28

Interpleader Exception to Complete Diversity

That among the parties there be "two or more adverse claimants, of diverse citizenship."

All other claimants may be citizens of the same state.

29

Alienage Jurisdiction

Over "alienage" cases, in which the dispute is between a citizen of a U.S. state and an "alien."

**Must not be a permanent resident alien domiciled as same as Plaintiff.

30

Complete Diversity: Determination of Citizenship of an Individual

Domicile:
1. residence in the State
AND
2. intent to remain there.

31

Complete Diversity: Determination of Citizenship of a Corporation

Either:
1. State incorporated in
OR
2. Principal State of business (Nerve center)

32

Complete Diversity: Determination of Citizenship of Insurance Company when they are the sole party being sued

1. The state or foreign country in which the insurer is incorporated (if it is),
2. The state or foreign country in which the insurer has its principal place of business
AND
3. The state or foreign country of which the insured is a citizen.

33

Complete Diversity: Determination of Citizenship of Uncorporated Assocations

1. May sue or be sued in its own name if local state law so permits;
OR
2. Is an aggregate of individuals if local state law follows the common law rule

**Each and every one of its members

34

Complete Diversity: Determination of Citizenship of Business Trusts

Trustee are the real parties in interest and their citizenship determines whether there is diversity.

35

Complete Diversity: Legitimate Technique to Create or Destroy Diversity

Genuinely change domicile

36

Complete Diversity: Illegitimate Technique to Create or Destroy Diversity

- No good faith
- Someone assigns a promissory note to someone who satisfies diversity
- Shams

37

Supplemental Jurisdiction (Ancillary Jurisdiction)

Judicial discretion allows additional related claims to come in that:
Arise from a COMMON NUCLEUS OF OPERATIVE FACT

1. Compulsory Counter Claim - Ark sues TX, TX sues X for 12K, same underlying matter
2. Cross-Claim - Ark sues 2TX, TX1 sues TX2, same transaction
3. Third Party Claim - Interpleader

**USED FOR FEDERAL QUESTION ONLY

38

Complete Diversity: Exceptions to Diversity

1. Domestic Relations
2. Probate

NO FEDERAL COURT

39

Amount in Controversy

What is claimed in the complaint, disregarding potential defenses or counterclaims.

**Not collateral consequences

40

Amount in Controversy for Separate Claims

1. One Plaintiff v. One Defendant
- add all plaintiff's demands together.
2. One Plaintiff v. Three Defendants
- "Is Plaintiff suing for Joint and Several liability for >= 75K.
3. Five Plaintiff v. One defendant
- they don't add together

**If one Plaintiff has claims in excess of 75K, supplemental jurisdiction captures the rest.

41

Law Applied Under Diversity Jurisdiction

Apply the substantive law of the state (determine what decision the highest court of the state would reach) in which it is sitting, including the state's conflict of law rules.

However, the federal courts apply federal procedural law.

42

Multiparty, Multiform Trial Jurisdiction Requirements

1. The action
2. Minimal Diversity
3. One Additional Condition (1 of 3)

43

Multiparty, Multiform Trial Jurisdiction Requirements: The Action

Civil actions that:
1. arise from a singe accident,
2. where at least 75 natural persons have died in the accident;
3. at a discrete location.

44

Multiparty, Multiform Trial Jurisdiction Requirements: Minimal Diversity

At least one plaintiff be of diverse citizenship from at least one defendant.

45

Multiparty, Multiform Trial Jurisdiction Requirements: One Additional Condition

One of three other conditions:
1. A defendant "resides" in a different state from the place where "a substantial part" of the accident took place.
2. Any two defendants "reside" in different states;
OR
3. Substantial parts of the accident took place in different states.

46

Multiparty, Multiform Trial Jurisdiction Intervention

Anyone "with a claim arising from the accident" is permitted to intervene.

47

Multiparty, Multiform Trial Jurisdiction Service of Process

Nationwide service of process

48

Federal Question Jurisdiction

The federal question must appear as post of the Plaintiff's cause of action as set out in a well-pleaded complaint.

"arising under" federal law

49

Supplemental (Pendent) Jurisdiction under Federal Question Jurisdiction

Discretion of the federal court if they "derive from the common nucleus of operative fact" AND "are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding.

**Can refuse to hear State if Federal dismissed.
LOOK FOR SAME TRANSACTION, SIDE WITH JURISDICTION IF FOUND

50

Exclusive Jurisdiction of Congress

1. Bankruptcy Proceedings
2. Patent and Copyright Cases
3. Many cases where the US is involved
4. Cases with Consuls and Vice-Consuls as Defendants
5. Antitrust
6. Admiralty
7. Foreign State
8. Postal Matters
9. Internal Revenue
10. Securities Exchange Act

51

Venue

Proper geographic district in which to bring the action.

Can be conferred by agreement.

52

Proper Venue

In:
1. A judicial district where any defendant resides;

2. A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;
OR
3. If no 1 or 2, a judicial district in which any defendant is subject to personal jurisdiction with respect to such action.

53

Where can a civil action against the United States or an agency, officer, employer acting in his official capacity be brought?

1. Where a defendant resides.
2. Where substantial part of the events or omissions
OR
3. where the Plaintiff resides if no real property is involved in the action.

54

Venue for Individual

1. Where defendant is domicile;
OR
2. Where substantial part of events or omissions took place.

55

Venue for Business Entities

Where there is minimum contacts.

If none, most significant contact

56

Venue for Nonresident of United States

Any judicial district.

57

Venue Transfer

Where you want to move it to another district:

1. "where it might have been brought"
- Subject Matter Jurisdiction
- in personam jurisdiction over the defendant
- venue.
OR
2. Consent of all parties

58

Judicial Considerations in Venue Transfer

- Forum Selection Clause
- Great inconvenience for parties

59

Options of Court for Improper Venue

1. Dismiss the case
OR
2. "in the interests of justice", transfer the case to a venue which is proper.

**Lack of Personal Jurisdiction does not eliminate power to Transfer
**Can be waived

60

Law Applicable Upon Transfer

If Original venue is proper, original applicable law applies

If Original venue is improper, change of law to where it sits.

61

Removal Jurisdiction

Removal from State court to Federal court IF:
1. The case could have originally been filed in a federal court;
AND
2. for cases removed on the basis of diversity, no defendant is a citizen of the state where the action is filed.

**Only apples to Federal Question Claims

62

Who can exercise the right of removal?

The defendant.

A defense to the claim is not enough, need a federal question.

63

Procedure to Remove

1. File a notice of remove in the federal district court in the district and division within which the action is pending.
2. Send a copy of the notice to the other parties and to the state court.
3. Demand for Jury Trial within 14 days UNLESS ALREADY DONE

STATE COURT CAN NO LONGER DEAL WITH IT

**Within 30 days of notice of status of removal (complaint) OR when status changes to irremovable
**Plaintiff can petition to remand

64

Removable Actions

1. In certain actions against federal officers when they were allegedly acting under color of law
AND
2. Federal employees for torts by motor vehicles committed in the scope of employment;
3. Action involving international banking
4. Criminal or civil actions where the defendant will be denied a right protected under federal civil rights statutes, but only if the denial is inevitable under state law.

65

Nonremovable Actions

1. Actions under the DELA and Jones Act.
2. Actions for less than 10K against carriers for losses to certain shipments in interstate commerce,
3. Workers' compensation proceedings
or
4. Fair Labor Standards Act

66

Conflict of Jurisdiction Between State and Federal Courts

Full Faith and Credit extended to Federal Courts

Federal court is prohibited from enjoining pending state court proceedings UNLESS expressly authorized by statute OR "where necessary in aid of its jurisdiction, or to protect or effectuate its judgments"

67

Doctrine of Abstention

Federal courts will retain jurisdiction over a suit involving a challenge to the constitutionality of a state law but abstain from deciding the question until a decision has been made by the State courts on the meaning of the State law.

68

Federal Intervention

1. Great and immediate irreparable injury;
2. Bad faith in the prosecution of the state action
OR
3. Harassment or other unusual circumstances calling for federal equitable relief.

69

Federal Rules of Civil Procedure

Federal Rules of Civil Procedure

70

Commencement of the Action

Filing a complaint with the court.

Diversity cases, statute of limitations is satisfied upon service date.

71

Service of Process: Who may serve?

Anyone at least 18 and not a party to the action.

Sheriff, Process server

72

Service of Process: How Service is made?

1. Personal service;
2. Service left at the defendant's usual place of abode with one of suitable age and discretion
OR
3. Service upon an authorized agent of the defendant.

**Service by state rule or waiver is valid

73

Waiver Process

1. Waiver sent to Defendant;
2. Defendant responds in 60 days;
3. If not waived, Plaintiff must serve by 1 of the 3 conventional ways of service.

74

How long to serve?

120 from filing.

75

Personal Jurisdiction over parties served outside the state

1. Under statute and rules of extraterritorial service of the state in which the federal court sits (domicile, long arm, in rem)
2. If they are 3rd party defendants or required to be joined for just adjudication, if served within 100 miles from place where summons issued.
3. If out-of-state service is permitted by federal statute (interpleader)
AND
4. For cases that involve a federal question, minimum contacts is applied.

76

Personal Jurisdiction Over Parties Served Outside the US

1. As provided by international agreement;
2. The foreign country's law or as directed by a foreign official;
3. By personal service or by mail, signed return receipt requested;
OR
4. Any method court orders.

77

Immunity from Process

Parties, witnesses, and attorneys who enter a state to appear in another action.

78

Motions That Must be Filed within 28 days after entry of judgment

1. A renewed motion for judgment as a matter of law,
2. a motion to amend judgment
3. A motion for a new trial,
4. A motion to amend findings of fact in a nonjury case, and a grant of a new trial on the court's initiative.

79

Injuction

An equitable remedy by which a person is ordered to act or to refrain from acting in a specified manner.

80

Interlocutory Injunctions

Granted to maintain the status quo until a trial on the merits may be held.

81

Preliminary Injuction

Sought by a party prior to a trial on the merits of the complaint:
1. Irreparable harm
2. Balancing of hardships
3. Public interest?
4. Likelihood of success on the merits.

May not be issued without notice to opposing party.
**Duration is until trial on the merits.

82

Ex Parte Temporary Restraining Order

Generally must give notice UNLESS:
1. Immediate and Irreparable Injury
2. Efforts to Give Notice
3. Security for losses and damages incurred by adverse party if wrongfully enjoined or restrained.

83

Notice of TROs

Actual notice required to be held liable for breach of restraining order.

84

Time TRO Lasts

14 days UNLESS otherwise consented to by adverse party.

85

Provisional Remedies

Provide for tretrial seizure of property for the purpose of securing satisfaction of a judgment that may be entered in the case.
- Garnishment
- Attachment
- Replevin

**Prima facie case that property will likely not be available after trial if relief is not granted.
**Follow State Law

86

Garnishment

A court order directing that money or property in the hands of a third party be seized.

87

Attachment

A process by which another's property is seized in accordance with a writ or judicial order for the purpose of securing a judgment yet to be entered.

88

Replevin

A process by which the plaintiff takes possession of and holds disputed property during the lawsuit.

89

Pleadings

Serve the function of giving notice to the opposing parties.

90

Three Elements of Complaint

1. Short statement of jurisdiction
2. Short statement of claim showing party is entitled to relief
3. Demand for relief.

91

What is a motion?

Request for the court to do something.

Respond in 21 days

92

Pre-Answer Motions

1. Rule 12 (b) Motion
2. Motion for More Definite Statement
3. Motion to Strike by Plaintiff

93

Rule 12 (b) Motions

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
OR
8. Failure to join a party needed for a just adjudication.

2-5 Must be filed at time of motion or answer.

94

Answer to a Complaint

Admit/Deny

21 days after service UNLESS mailed or waives formal service 60 days.

Pre-trial motions response in 14 days.

95

Effect of failure to Answer

Default Judgment

96

Default Judgment

1. The plaintiff's claim against the defaulted defendant is for a sum certain;
2. the default was entered because the defendant failed to appear
3. the defaulted defendant is not an infant or incompetent person

97

Reply to Answer

Only if court ordered

98

Amendment and Supplemental Pleadings

To do justice, leave to amend shall be freely granted OR written consent of adverse party.

Once within 21 days

99

Certification of Attorney Upon Presenting Paper to Court

1. No improper purpose
2. Warranted by existing law or for modification
3. Evidentiary support
AND
4. Warranted on the evidence

100

Safe Harbor Rule

21 day period to fix before sanctions filed.

101

Joinder of Parties

1. Compulsory
2. Permissive

102

Compulsory Joinder Analysis

1. Should the absentee be joined?
2. Can the absentee be joined?
3. Should the action proceed in his absence?

103

Compulsory Joinder Analysis: Should the Absentee be Joined

1. Complete relief cannot be accorded
2. Has such an interest in the subject matter that the lawsuit may
- impair or impede his ability to protect the interest;
OR
- leave any other parties subject to a substantial risk of incurring multiple or inconsistent obligations.

104

Compulsory Joinder Analysis: Can the absentee be joined?

Personal or Subject Matter Jurisdiction.

105

Compulsory Joinder Analysis: Should the Action proceed without the absentee?

Consider:
1. Prejudice to the absentee or available parties
2. extent prejudice can be avoided
3. adequacy of judgment
AND
4. if dismissed, plaintiff will have an adequate remedy

106

Permissive Joinder

1. Same series of occurrences or transactions
AND
2. Question of fact or law common to all the parties.

107

Requirements of a Class

1. More than 1
2. Common questions of law or fact
3. Named parties interests are typical
4. Fair and adequate representation given by representative.

108

Three Types of Clases

1. risk of inconsistent results, or would impair the interest of other absent members of the class (closely united, owners);
OR
2. A defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole;
OR
3. Consumer class.

109

Factors Considered by Court in Treating as Class Action

1. Interest of individual control
2. Extent and nature of litigation elsewhere on the same subject;
3. the desirability of having the whole package in this court;
AND
4. the difficulties in managing the class action.

110

Dismissal or Settlement of a Class Action

Court must approve

111

Minority Shareholder Derivative Suits

Must alleged in a verified complaint that:
1. shareholder at the time of transaction complained
2. not a collusive effort to confer jurisdiction
3. Demand on the directors, or if state law says, reasons why no demand.

Name Corporation as Defendant

Court approval needed for dismissal or settlement

112

Interpleader

Permits a person in the position of a stakeholder to require two or more claimants to litigate among themselves to determine, which, if any, has the valid claim where separate actions might result in double liability on a single obligation.

113

Rule 22 Interpleader

1. Complete Diversity
2. 75000

114

Section 1335 Federal Interpleader Statute

1. $500
2. Minimal diversity 2/4 must be from different states.

115

Two Types of Intervention

1. Intervention as of Right
2. Permissive Intervention.

116

Intervention as of Right

1. Interest in Subject Matter
2. Outcome may effect my interest
3. Nobody is looking out for me.

117

Permissive Intervention

Discretionary with the Court.

Must not destroy complete diversity AND must be supported by its own jurisdictional ground.

118

Third Party Practice (Impleader)

A defending party may implead a nonparty, but only if the nonparty is or may be liable to her for any part of a judgment that the plaintiff may recover against her.

Indemnify AND contribution

119

Discovery Purposes

1. Hide and Seek
2. Show and Tell

120

Initial Disclosures

1. Names, addresses, phone numbers
2. documents
3. proof of damages
4. insurance liability amount of judgment

121

Scope of Discovery

Discovery may be had of "any nonprivileged matter that is relevant to any party's claim or defense"

122

Six Techniques of Discovery

1. Depositions
2. Deposition on Written Questions
3. Interrogatories
4. Request for documents; access to property
5. Physical examination
AND
6. Request for admission

123

Use of Depositions at Trial

1. To impeach
2. For deponent more than 100 miles away or unable because age, sickness.
3. For any purpose if the deponent is an adverse party.

124

Ways to End a Lawsuit

1. Default
2. Rule 12(b)(6) demurrer
3. Judgment on the pleadings
4. Voluntary dismissal/non-suit
5. Involuntary dismissal w/prejudice
6. Summary Judgment
7. ADR
8. Trial
9. Directed Verdict
10. JNOV
11. Renewed JNOV
12. Motion for New Trial
13. Motion to Vacate

125

Elements of Summary Judgment

1. Written evidence
2. Affidavits
3. "no genuine issue of material fact"
4. Competing evidence from non-movant
5. Partial Summary Judgment or Full or None

126

Alternative Dispute Resolution

1. Contractual Arbitration
2. Judicial Arbitration
3. Mediation

127

Seven Principles from Case Law Regarding Right to a Jury Trial under the 7th Amendment

1. combined legal and equitable claims (jury)
2. Formerly equitable proceeding or remedy (jury)
3. Legal claims are only incidental, jury, tried first
4. Claim is statutory in nature, maybe is granted by statute
5. Claim is restitutionary: No jury
6. Claim goes to an administrative agency: No jury
7. Claim involves public rights: No jury

**Suits of common law

128

Jury Size

6 unanimous decision - 12 majority

**Unless otherwise agreed upon

129

Three Types of Jury Verdicts

1. General Verdict
2. Special Verdict
3. combination

130

General Verdict

Jury finds for the Plaintiff or Defendant and gives the amount of damages or relief due.

131

Special Verdict

1. Series of questions, numbered yes or no
2. Judge takes answer and gives result

132

Combination Verdict

General verdict but required to answer specific questions.

133

Motion for Judgment as a Matter of Law

The motion may be made by any party any time before submission of case to jury.

1. Nonmoving party has fully been heard
2. a reasonable jury would not have a legally sufficient bases to find for the nonmoving party on that issue.

134

Renewed Motion for Judgment as a Matter of Law

Filed before 28 days from entry of judgment.

May only raise the issues raised in the motion for JMOL previous.

135

Motion for New Trial

Must be made before 28 days from entry of judgment.

Gives judge sweeping discretion

Grounds are something that was a mistake.

136

Remittitur

Plaintiff is given the chance between accepting an award less than that given her by the jury or submitting to a new trial.

137

Additur

New trial on damages not liability.

138

Motion to Vacate, Set aside, for relief from judgment

Clerical Mistakes

Grounds (timing to file):
1. Mistake or excusable neglect (1 year)
2. Newly discovered evidence that could not have been discovered (1 year)
3. Fraud, misrepresentation (1 year)
4. Judgment void (reasonable)
5. Judgment is satisfied, released, or discharged (reasonable)
6. Any other reason. (reasonable)

139

Time for appeal

file notice of appeal 30 days from the entry of the judgment.

140

Reviewable Orders

1. Final Orders
2. Certain interlocutory orders

141

Reviewable Interlocutory Orders

1. Injunction
2. Receivers
3. Admiralty
4. Patent Infringement
5. Property Possession
6. Interlocutory Appeals Act

142

Review under the Interlocutory Appeals Act

1. Broadest trial judge discretion
2. Court of appeals then agree to allow the appeal. (Within 10 days of approval)

143

Collateral Order Rule

If the claim or issue is separable from and collateral to the main suit and is too important to require deferring appellate review, it may be classified as a judgment in a separate "collateral" proceeding and thus be appealable.

144

Writ of Mandamus

Commands a trial judge to act

145

Prohibition

Commands the judge to refrain from acting.

146

Can certifications of class be appealed?

yes within 14 days of entry of the order.

147

How to get appeals to Supreme Court?

Writ of Certiorari
OR
Certification

148

Arkansas Five Part Definition to Res Judicata

1. The first lawsuit ended in a judgment on the merits;
2. The first lawsuit was based upon proper jurisdiction;
3. The first lawsuit was fully contested in good faith;
4. Both lawsuits involve the same parties;
AND
5. Both lawsuits involved the same claim or cause of action.

Examples:
1. Broken leg, broken arm
2. Two car collision, assault, slander

**JUDICIAL ECONOMY, focus on Transaction or Occurrence

149

Effect of Resjudicata

1. Claim preclusion
OR
2. Merger and bar.

150

Requirements for "merger" and "bar"

1. The earlier judgment is a valid, final jugment on the merits;
2. The cases are brought by the same claimant agianst the same defendant
AND
3. The same cause of action is involved in the later lawsuit.

151

Collateral Estoppel (Issue Preclusion)

1. The issue sought to be precluded must be the same as that in the prior litigation;
2. The issue must have been determined in a valid and final judgment;
3. The issue must have been actually litigated;
AND
4. The determination must have been essential to the judgment.

152

Res Judicata and Collateral Estoppel in Special Situations

1. Judgment for Specific Performance? merger does not apply, bar and collateral estoppel does.
2. In Rem Judgments - binding on all parties
3. Quasi in Rem Judgments - no personal judgment is granted against anyone and no other property is affected.

153

Mutuality

Parties (and parties in privity) are bound.

154

Privity

A person so identified with another that he represents the same legal right.

155

Collateral Estoppel Applied to Stranger in Second Lawsuit

Arkansas has adopted the concept of defensive collateral estoppel.

Stranger will raise the affirmative defense of the prior judgment.

Stranger can raise offense collateral estoppel if an earlier party is victorious.

Shield and Sword.