Fill in the blank Final Fall 2023 Flashcards
(136 cards)
1
Q
Personal jurisdiction requires that the defendant be ___________ to the forum state’s jurisdiction, and that the defendant be _________________________________.
A
amenable, served with proper notice.
2
Q
Amenability to personal jurisdiction is governed by the ______________________, subject to the limits of the ______________________ of the United States Constitution.
A
forum state’s law, due process clause.
3
Q
Pennoyer v. Neff described three bases for state jurisdiction over persons and things. They are:
a. ___________: jurisdiction over the person.
b. ___________: jurisdiction over interests in property.
c. ___________: jurisdiction over seized property, where plaintiff’s claim is unrelated to the seized property.
A
a. In personam
b. In rem
c. Quasi in rem
Note that quasi in rem is arguably unconstitutional after Shaffer v. Heitner.
4
Q
Pennoyer based its jurisdictional formula on ___________ over persons and property within its borders.
A
state power.
5
Q
Under Pennoyer’s in personam jurisdiction, a judgment in plaintiff’s favor:
- would be ___________ in all states
- for the ___________ of damages
- may be ______________________ until fully collected.
A
-binding
-full amount
-enforced repeatedly
6
Q
Under Pennoyer’s in rem jurisdiction, a judgment in favor of the plaintiff:
- affects ______________________ in a res (both ___________ and ___________ to the lawsuit)
- does not result in a __________________
- does not require ___________ outside the forum
A
- everyone’s interests, parties, nonparties
- money judgment
- enforcement
7
Q
Under Pennoyer’s quasi in rem jurisdiction, a judgment in plaintiff’s favor:
- entitles plaintiff to the _________________________________
- is not a ______________________
- is not _________________________________
- may not be enforced ______________________
- may not be enforced ______________________
A
- property attached for jurisdiction
- personal judgment
- enforceable against any other property
- more than once
- outside the forum
8
Q
Another type of jurisdiction discussed in Pennoyer is ___________, which involves the state’s authority to adjudicate such matters as divorce, adoption, citizenship and mental competence.
A
status.
9
Q
_________________________________ altered Pennoyer’s rule for personal jurisdiction, replacing the concept of __________________ with the new standards of ___________ and ___________ provided by the “minimum contacts test.”
A
International Shoe Co v. Washington, state power, reasonableness, fairness.
10
Q
The current test for amenability, following International Shoe and other cases, does not require minimum contacts test if the defendant satisfies any one of the four “traditional” bases for in personam jurisdiction. Those bases are:
- ___________ in the forum state
- ___________ to jurisdiction
- ___________ of objection to jurisdiction
- __________________ in the forum when served.
A
- Residence
- Consent
- Waiver
- Physical presence
11
Q
Consent to jurisdiction has two forms, ___________ consent and ___________ consent. ______________________ are an example of express consent, and ______________________________ are an example of implied consent.
A
express, implied, Forum selection clauses, non-resident motorists statutes.
12
Q
If none of the traditional bases are present, a state may only exercise in personam jurisdiction over defendants who have minimum contacts with the state. The two categories of minimum contacts are _________________ and __________________.
A
specific jurisdiction, general jurisdiction.
13
Q
____________________ is where the lawsuit arises from or relates to the nonresident defendant’s contacts with the forum state. ____________________ is where the lawsuit is unrelated to the nonresident defendant’s contacts with the forum state.
A
Specific jurisdiction, General jurisdiction.
14
Q
Specific jurisdiction has four contacts tests, which are that the defendant:
a. ______________________ itself of the benefits and protections of forum law;
b. should have ___________ that its activity would subject it to jurisdiction in the forum state;
c. could ______________________ being haled into court in the forum state;
d. placed its product in the ______________________ and could foresee that it would be used in the forum state.
A
a. purposefully availed
b. foreseen
c. reasonably anticipate
d. stream of commerce
15
Q
General jurisdiction has one contact test, which is that defendant’s contacts are so ______________________ as to render it ______________________ in the forum state.
A
continuous and systematic, essentially at home.
16
Q
If the defendant has no contacts with the forum (and does not meet one of the four traditional bases of jurisdiction), then there is ______________________ over that defendant. If, on the other hand, defendant does have specific or general contacts, then the court must consider the ________________________________ test. This is a ___________ test with five factors which are:
- ______________________
- ___________ interest in convenient and effective relief
- ______________________
-the _________________________________ in furthering fundamental social policies
- the ______________________________ in effective resolution of controversies.
A
no personal jurisdiction, fair play and substantial justice test, balancing
- burden on the defendant
- plaintiff’s
- the forum state’s interest
- shared interests of several states
- judicial system’s interest
17
Q
The due process requirement for notice to defendant is stated in Mullane v. Central Hanover. Notice is constitutionally sufficient if it is “___________________, under all circumstances, to apprise ___________ parties of the pendency of the action, and afford them an ___________________ and __________________.”
A
reasonably calculated, interested, opportunity to appear, present objections
18
Q
An abbreviated version of the Mullane notice ruling is that ___________ requires ___________ and an ___________________.
A
due process, notice, opportunity to be heard.
19
Q
Which rule of the Federal Rules of Civil Procedure deals with initially notifying the defendant of the lawsuit?
A
Rule 4
20
Q
Under Fed. R. Civ. P. 4(e), in addition to service under state law, the means of service on a competent adult are:
a. ___________________ to defendant;
b. leaving copies at ______________________ with a person of _____________________________;
c. serving defendant’s ____________________.
A
a. personal delivery
b. defendant’s dwelling, suitable age and discretion
c. appointed agent.
21
Q
In most cases, the federal method of service on defendants outside the district is by the ___________ statue of the state in which the federal court sits.
A
long arm
22
Q
The purpose of venue rules are:
a. ___________ to defendant
b. ______________________ of caseload within the forum state
A
a. fairness
b. geographic allocation
23
Q
The federal statue for general venue provisions is ___________________.
A
28 U.S.C. Section 1391.
24
Q
The purpose of forum non conveniens is to move ________________________________ based on fairness and convenience.
A
cases from one forum to another
25
Subject matter jurisdiction refers to the court authority to adjudicates based on the _________________ and in some cases, ____________________________.
type of case, dollar amount in controversy.
26
Under Article III, federal court have subject matter jurisdiction over two primary types of cases:
- __________________
- ____________________
- federal question
- diversity of citizenship
27
The statute dealing with general federal question jurisdictions is ______________. It provides that federal courts have jurisdiction over any civil action _________________________________________ of the United States.
28 U.S.C. Section 1331; arising under the Constitution, laws, or treaties
28
In addition to the general federal question provisions in 28 U.S.C. Section 1331, there are specific statutes on federal question jurisdiction, including actions against (name three):
foreign states, admiralty, patents, civil rights, consuls, internal revenue, and United States as plaintiff or defendant
29
Diversity jurisdiction is covered by __________________. That statute provides that federal courts have subject matter jurisdiction over claims between _____________________, or between ___________ and ___________, where the amount in controversy _________________.
28 U.S.C. Section 1332, citizens of different states, state citizens, foreign citizens, exceeds $75,000.
30
Although the Constitution requires only ___________ diversity, 28 U.S.C. Section 1332 requires ___________ diversity. This means that all plaintiffs must have different citizenship than all defendants.
partial, complete
31
For diversity purposes, a corporation has two citizenships, which are:
a. state of incorporation
b. principal place of business
32
A corporation's principal place of business is defined as its _______________.
nerve center
33
For diversity purposes, partnerships have the citizenship of __________________.
all the partners
34
Under the St. Paul Mercury test, the amount in controversy is determined by plaintiff's ____________________.
good faith pleading
35
In achieving the amount in controversy, may Plaintiff aggregates (answer "yes" or "no"):
a. all of the plaintiff's claim against one defendant?
b. alternate theories of recovery for the same wrong?
c. claims of different plaintiffs?
d. claims against different defendants?
a. yes
b. no
c. no
d. no
36
In some cases, a related claim that lacks diversity or federal question jurisdiction may be included, This is called _____________________________.
supplemental jurisdiction
37
Federal courts traditionally abstain from ___________, ___________ and _____________________.
family law, probate, state criminal proceedings.
38
If plaintiff has filed his action in state court, and jurisdiction is proper in federal court, defendant may remove the case to federal court. This is done by filing the ___________________ in federal court, attaching a copy of ______________________________ and __________________ to the state court and all parties.
Notice of Removal, all state court pleadings, giving notice
39
If there is a __________________ defect in the removal, the case must be remanded to state court no matter when the objection is made.
jurisdictional
40
If there is a _____________ defect in the removal, the case must be remanded to state court if a _____________________________.
procedural, proper and timely objection is filed
41
State court subject matter jurisdiction is governed by ___________.
state law
42
In state courts subject matter jurisdiction is designated by _______________ and/or ________________.
type of case, dollar amount
43
Federal courts have ___________ jurisdiction over patent claims. Federal and state court share ___________ jurisdiction over ______________________.
exclusive, concurrent, federal civil rights actions
44
A court has ___________ jurisdiction if it is the required forum at the beginning of the case. A court has ___________ jurisdiction if it may adjudicate a case only after it has been heard in a lower court.
original, appellate
45
A federal district court has ___________ jurisdiction over a dispute filed there and raising a federal question, and ___________ jurisdiction over appeals from Texas state agency decisions.
original, appellate
46
A federal district (trial) court has ___________ jurisdiction over appeals from federal administrative agency decisions.
appellate
47
The United States Supreme Court has ___________ jurisdiction over disputes between states.
original
48
The Rules of Decision Act provides that "the _____________________, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as ____________________ in civil actions in the courts of the United States, in cases where they apply."
laws of the several states, rules of decision
49
_________________ interpreted the Rules of Decision Act to require federal courts to apply the _________________________________ in cases where state law applied.
Swift v. Tyson, general American common law
50
Erie Railroad Co. v. Tompkins reversed Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply _________________________________________.
the law of the state in which that federal court sits
51
______________________ coined the "____________________________," which provides that the _______ Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.
Guaranty Trust v. York, outcome determinative test, Erie
52
______________________ modified the ___________________________, holding that the court should _________________________________ in the case to determine which interests were stronger. ______ further held that one factor of the balancing test is whether the state law in question is ______________________ outcome determinative. Thus, Byrd gives more importance to ___________ that absolutely change the outcome of the case.
Byrd v. Blue Ridge, outcome determinative test, balance state and federal interests, Byrd, absolutely or definitively, state laws
53
To determine the content of state law in federal court, the Erie Doctrine directs that the court give binding authority to ______________ and _________________________________. Persuasive (but not binding) authority is found in ______________________________ and _________________________________. Erie also allows courts to make an ___________________ as to state law.
state statutes, decisions from the state's highest court, lower state appellate courts, federal court opinions on state law, educated guess
54
The Rules Enabling Act (28 U.S.C. Section 2072) provides the United States Supreme Court may enact the ________________________________, provided that no rule may ______________________ any substantive right.
Federal Rules of Civil Procedure; abridge, enlarge, or modify
55
The most prominent Rules Enabling case is ______________, which resolves the conflict between the Rues Enabling Act and the _____________.
Hanna v. Plumer, Erie Doctrine
56
Hanna v. Plumer also introduced the concept of the "twin aims of Erie," which are to (1) discourage ________________, and (2) avoid the ________________________________.
forum shopping, inequitable administration of the laws
57
Choice of law is the process by which courts determine which _________________ law will be applied in a case.
state's or nation's
58
Choice of law rules may be ___________ or _______________.
statutory, common law
59
One example of a common law choice of law rule is the Texas case of Duncan v. Cessna, which holds that Texas court will use the "______________________________" to choose the governing law. This rule applies except where there is a _____________________________, or where the action is based on contract that contains a __________________________.
most significant relationship test, statutory choice of law clause, valid choice of law clause
60
In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules of _________________________________.
the state in which the federal court sits
61
In federal court, Plaintiff's initial pleading is called a ___________. It must contain:
a. an allegation of ______________________
b. a short and plain ______________________ showing that the pleader is ______________________
c. a demand for ___________
complaint
a. subject matter jurisdiction
b. statement of the claim, entitled to relief
c. judgment
62
In Bell Atlantic Corp. v. Twombly and Ashcroft v, Iqbal, the United States Supreme Court held that a properly-stated claim must "contain sufficient ____________________, accepted as true, to state a claim for relief that is ______________________."
factual matter, plausible on its face
63
In federal court, defendant's answer must respond to each paragraph of plaintiff's complaint with one of the following:
a. ___________
b. ___________
c. statement that defendant _________________________________
a. admission
b. denial
c. lacks sufficient knowledge to respond
64
In addition to the foregoing, defendant may plead ___________________. If the defendant fails to plead these, they are ___________. Name three examples:
affirmative defenses, waived
contributory negligence
assumption of risk
fraud
statute of limitations
discharge in bankruptcy
estoppel
failure of consideration
payment
release
res judicata
statute of frauds
65
F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a ____________________, and that the pleading is (1) not being presented for any ___________________; (2) ______________________ or a _____________________________ for the extension, modification, or reversal of existing law or establishment of new law; (3) supported by ___________, or will likely be after a reasonable opportunity for discovery. ______________ must be warranted on the evidence or based on reasonable lack of information or belief.
reasonable inquiry, improper cause, warranted by existing law, nonfrivolous argument, evidence, Fact denials
66
If plaintiff's initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a ______________________________ under F.R.C.P. 12(e). This must be filed ___________ the Answer.
Motion for More Definite Statement, before
67
Defendant may use a __________________ under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.
Motion to Strike
68
Defendant may challenge the Complaint's legal sufficiency by a _______________________________________, under F.R.C.P. 12(b)(6).
Motion to Dismiss for Failure to State a claim
69
Defendant may challenge _____________________ at any time. Defendant must challenge ___________________ and ___________ at the first opportunity or waive them.
subject matter jurisdiction, personal jurisdiction, venue
70
Two types of counterclaim are ___________ and ___________. A ___________ counterclaim is one related to plaintiff's claim. If it is not asserted, it is ___________.
compulsory, permissive, compulsory, waived
71
A third party claim is one brought by a defendant against a ___________. It is based on ___________ liability.
new party, derivative
72
Pleadings may be amended to add new ___________________, and new ___________ or __________________.
factual allegations, claims, causes of action
73
If a pleading adds a new claim that is barred by the statute of limitations, that new claim will be allowed if it is related to the original claim and if the new claim would have been timely if filed with the original claim. This is the "______________________" in Fed. R. Civ. P. 15(c).
doctrine of relation back
74
The doctrine of relation back also allows a plaintiff to add a new defendant after the statute of limitations has run if the ________________ in Rule 15(c) is satisfied.
balancing test
75
If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff's ______________________.
Motion of Trial Amendment
76
One exception to Rule 8's notice pleading rule ("short plain statement of the claim") is that allegations of ___________ must be plead with particularity.
fraud
77
F.R.C.P. 13(a) requires defendant to assert any opposing claim against plaintiff that _________________________________ that is the subject matter of plaintiff's claim. This is known as a ______________________. If defendant fails to assert such a claim, he is ___________ from raising the same claim in a later lawsuit.
arises out of the transaction or occurrence, compulsory counterclaim, barred
78
Exceptions to the requirement of asserting the claims discussed in the preceding question include:
a. where defendant _________________ of plaintiff's claim prior to filing an Answer.
b. where the counter claim has not ___________ or ___________.
c. Where the counterclaim requires an additional party over whom the court ______________________.
d. where the counterclaim is the subject of _____________________________.
e. where plaintiff's action is not based on _____________________ over defendant (i.e. an ___________ action).
a. wins a dismissal
b. arisen, matured
c. lacks personal jurisdiction
d. another pending action
e. personal jurisdiction, in rem
79
Permissive claim joinder allows any party to join ____________________ against __________________.
unrelated claims, existing parties
80
In spite of liberal rules for permissive joinder, all crossclaims and third-party claims must be _______________ the plaintiff's claim. However, once a party has properly asserted a crossclaim or third-party claim, that party may join an ____________ claim.
related to, unrelated
81
____________ parties (f/k/a compulsory parties) are those who must be joined if possible. F.R.C.P. 19 addresses this issue in two parts:
a. Rule 19(a) identifies required parties, who must be joined if ____________;
b. Rule 19(b) addresses what must happen when joinder is not feasible, which is either ____________ or ____________________________________.
Required,
a. feasible
b. dismissal, litigation without the required party
82
F.R.C.P 20 governs permissive joinder of parties. It permits ____________________ to join in one lawsuit if
a. each plaintiff asserts any right to relief arising out of the ___________________, ______________, or series of transactions or occurrences, ______
b. "any question of ______________ common to all these persons will arise in the same action."
multiple plaintiffs,
a. same transaction, occurrence, AND
b. law or fact
83
Two other requirements for naming parties to a lawsuit are:
a. ________________________
b. ____________
a. Real Party in interest
b. Capacity
84
Procedural devices for adding multiple parties include:
a. __________________________________
b. ____________
c. ____________
d. ____________
e. ________________________
a. Impleader, or Third Party Action
b. Interpleader
c. Intervention
d. Class action
e. Shareholders' Derivative Suit
85
Federal Rule 26(a) requires parties to ____________ basic information relating to evidence they will use at trial, damage, and insurance.
disclose
86
The scope of discovery in federal courts is ". . . any _______________ matter that is ____________________________________ and ___________________________________ . . ."
nonprivileged, relevant to any party's claim or defense, proportional to the needs of the case
87
The forms of discovery are:
7
- Interrogatories
- Request to produce or inspect
- Subpoenas duces tecum
- Oral deposition
- Written depositions
- Physical and mental examinations
- Requests for admission
88
Privileges shield information from discovery such as:
3
- attorney-client privilege
- spousal privilege
- doctor-patient privilege
89
The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are ____________.
waived
90
Devices for dismissal include:
a. ____________ Dismissal
b. ____________ Dismissal for failure to prose cute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense.
c. Dismissal for ________________________.
a. Voluntary
b. Involuntary
c. Failure to State a Claim
91
A Motion for Judgment of the Pleadings may be filed by ________________________. In deciding the motion, the court will look only to the ______________________ to determine if that pleading has stated a ____________ or ____________.
either plaintiff or defendant, nonmovant's pleading, claim, defense
92
F.R.C.P. 56 provides that for summary judgment, the ____________ is on the ____________ to show that:
a. there is no ________________________, and
b. movant is __________________________________.
burden, movant,
a. genuine issue of material fact
b. entitled to judgment as a matter of law
93
One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleadings] is that a summary judgment motion may include ____________.
evidence
94
For summary judgment in favor of the party not having the burden of proof at trial (usually the defendant), the movant may meet the first part of the burden (no dispute of material fact) by:
a. ____________________________________
b. ____________ portions of nonmovant's essential fact allegations (Adickes)
c. pointing to the record, after a ________________________, and alleging that nonmovant lacks sufficient evidence to support an ____________________ of her case, upon which nonmovant has the ______________________. (Celotex)
a. assuming all of the nonmovant's fact allegations to be true
b. negating
c. reasonable time for discovery, essential element, burden of proof at trial
95
For summary judgment in favor of the party bearing the burden of proof at trial, the movant must meet the burden of proof by ____________________________________ of the claim or defense.
offering evidence to establish each element
96
Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden shifts to _____________, who may defeat the motion for summary judgment by:
a. _____________________, or
b. ________________________________________________.
nonmovant,
a. creating a fact dispute
b. showing that the law does not entitle movant to judgment
97
In deciding the motion for summary judgment, the court must view the evidence in the ___________________________________.
light most favorable to the nonmovant
98
To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which _______________________________. If reasonable minds could not differ, then there is no fact dispute, and the judge may render summary judgment.
reasonable minds could differ
99
Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is the same as for a motion for _______________.
directed verdict
100
If a party lacks evidence to response to a motion for summary judgment, that party may seek ___________________ under Rule 56(f).
additional time
101
In federal court, the trial issues of law and fact are governed by a ______________. In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the _______________.
Pretrial Order, latest pleadings
102
The process of questioning prospective jurors is called ____________.
voir dire
103
There are two kinds of challenges to prospective jurors:
________________________ are based on the court's ruling that reasonable cause exists to excuse that person from jury service based on a possibility or prejudice against one of the parties, or some other bias in the case.
______________________ allow the parties a limited number of "strikes" to excuse prospective jurors for no stated reason.
Challenges for cause
Peremptory challenges
104
Asking the court to order all witnesses other than parties to leave the room is known as _____________________.
invoking The Rule
105
A defendant may move for the ________________________ if he has the burden of proof on all the remaining issues.
right to open and close
106
Under the Seventh Amendment to the United States Constitution, all parties in federal court have a right to trial by jury in ________________________ exceeding _____________________ in controversy.
cases at common law, twenty dollars
107
In federal court, parties have no constitutional right to trial by jury in ____________ cases. However, the states may grant the right to jury trial in equity cases.
equity
108
The right to jury trial is presumed to exist under a federal statute unless that statute ______________________ the right.
expressly excludes
109
If a party fails to request a jury within the time allowed by ____________, the right to jury trial is ____________.
forum law, waived
110
After all evidence and arguments have been presented, the judge describes the applicable law to the jury in _____________________. If the judge instructs the jury incorrectly on an issue of law, this is ____________ even though it applies to the jury's functuons.
jury instructions, appealable
111
If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the ________________________.
trier of law and fact
112
As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that "directed verdict" and "judgment notwithstanding the verdict" are both known as "________________________"
judgement as a matter of law
113
In a jury trial, at the close of plaintiff's evidence, defendant may move for a ________________________ (the old directed verdict) under Fed. R. Civ. P. 50(a). The judge may grant it if, viewing the evidence in the ________________________________, a reasonable jury could not find for plaintiff.
judgment as a matter of law, light most favorable to the plaintiff
114
If the motion for judgment as a matter of law (or directed verdict) is denied, defendant presents his case. At the close of defendant's evidence, _______________________ may move for judgment as a matter of law, which may be granted if a reasonable jury could only find for movant.
plaintiff and defendant
115
After the jury has returned its verdict, the losing party may move for ________________________ (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within ____ days after entry of judgment. However, movant must have filed a motion for ________________________ during the trial as a prerequisite.
judgment as a matter of law, 28, judgment as a matter of law
116
After trial, the losing party may file a Motion for New Trial within _________________ days after entry of Judgment. The trial judge may grant a new trial on any of the following grounds:
- ____________
- ___________________
- ____________
- result contrary to the ________________________
twenty-eight (28)
- trial error
- newly discovered evidence
- misconduct
- great weight of the evidence
117
The Court of Appeals may reverse the trial judge's granting of a Motion for New Trial only if there was ______________ to support the granting of a new trial.
no evidence
118
Courts may grant a new trial, conditioned on remittitur or additur. ____________ orders a new trial unless plaintiff accepts a lesser amount of damages. ____________ orders a new trial unless defendant agrees to pay extra damages. Federal law prohibits ____________ as a violation of the right to jury trial.
Remittitur, Additur, additur
119
A new trial may be granted for newly discovered evidence if the following conditions are met:
- the new evidence was discovered _________________
- the evidence was not discoverable by ________________________ prior to the first trial
- the new evidence is not ______________________
- the new evidence will ___________________________>
- after the first trial
- reasonable diligence
- merely cumulative
- probably produce a new result
120
Under F.R.C.P. 60(a), a party may correct ______________ and other ____________________ in a judgment. Under F.R.C.P 60(b), a party may ask for a new trial based on ___________________________.
clerical mistakes, inadvertent errors, newly discovered evidence or fraud
121
A party may also challenge a final judgment by ______________________ alleging ________________________ or ____________.
filing a new action, newly discovered evidence, fraud
122
Thus there are three methods for challenging a judgment based on newly discovered evidence or fraud:
a. ____________________ (Rule 59)
b. __________________________ (Rule 60)
c. ________________
One principle difference between these three is the ______ allowed for filing.
a. Motion for New Trial
b. Motion for Relief from Judgment
c. A New Lawsuit
time
123
Appellate courts primarily review ______________. In order to receive appellate review, there must be a trial error that was __________________ by a _______________.
question of law, properly preserved, timely objection
124
Appellant may preserve error by:
a. ____________ at the time of the error,
b. stating the ____________ for the objection,
c. making known to the court the _____________, and
d. obtaining a ____________ on the objection.
a. objecting
b. grounds
c. action desired
d. ruling
125
Appellate courts may also review the jury's decision, but only as to the ______________________________, which is also a question of ____________.
sufficiency of the evidence, law
126
____________ courts may review the trial judge's Findings of Fact in a ______________. The standard of review is __________________.
Appellate, nonjury trial, clearly erroneous
127
Preclusion is the doctrine that limits the relitigation of issues and claims. The two kinds of preclusion are:
- _______________
- _______________
- Claim preclusion
- Issue preclusion
128
Another name for preclusion is "____________."
res judicata
129
Claim preclusion includes the doctrines of ____________ and ________.
merger, bar
130
Merger applies to judgments for ____________. It provides that a _______________ judgment for plaintiff (a) prevents plaintiff from suing again except in a collection action on the judgment, and (b) bars defendant's defenses in an action on the judgment.
Plaintiff, valid and final
131
Bar applies to judgments for ______________. It provides that a judgment for a defendant __________________________ on the same claim.
Defendant, bars another action by plaintiff
132
The elements of claim preclusion are:
- ____________
- ____________
- _________________
- same claim
- same parties
- valid and final judgment
133
Claim preclusion does not apply to certain actions, including:
a. Dismissal on grounds of ____________, ____________, or ____________
b. ________________________
c. Where preclusion is ________________________
d. ______________ courts (in some jurisdictions)
a. jurisdiction, venue, party joinder
b. Nonsuit without prejudice
c. denied by statute
d. Small Claims
134
Issue preclusion is also known as ____________________.
collateral estoppel
135
Issue preclusion does not apply to whole lawsuits, but to:
a. issues of ____________
b. that were _________________
c. that ended in a ________________________,
d. where determination of that issue was ____________to the judgment, and
e. where the judgment is ___________________________
a. law or fact
b. actually litigated
c. valid and final judgment
d. essential
e. binding on the party being estopped
136
Issue preclusion no longer requires ______________________. This is also known as "offensive collateral estoppel." It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a __________ and (b) had a _________________________________.
mutuality of parties, party, full and fair opportunity to litigate
