Final Flashcards
(22 cards)
Right to Jury Trial - 7th Amendment - Right to jury in Civil Trial / Federal Ct
- Two Part Test
1) History
2) Relief Sought
Writ of Mandamus
App Ct takes the case from the trial judge + they hear it themselves
Interlocutory Appeal
1) During Trial - about a trial judge’s decision
2) Trial Judge certifies for the interlocutory appeal
(1292)
Rule 64. Seizing a Person or Property
(a) Remedies Under State Law— provides for seizing a person or property to secure satisfaction of the potential judgment.
- But a federal statute governs to the extent it applies.
R 64 Seizure Remedies
(b) Specific Kinds of Remedies. The remedies available under this rule include the following—however designated and regardless of whether state procedure requires an independent action:
• arrest;
• attachment; = seized to prevent def from disposing
• garnishment; = def assets in possession of 3rd party are turned over to satisfy the debt
• replevin; = wrongfully taken or held property is turned over to Plaintiff pending resolution of the ownership dispute
• sequestration; ownership disputed - taken from the possessor and held by 3rd party pending resolution of the ownership
Procedural Due Process
Gov’t cannot deprive of Life, Liberty, or Property w/o Due process of Law
Need = Notice + Hearing
-An opportunity to be heard ‘at a meaningful time and in a meaningful manner.
Three Part Test (Eldridge) - Deprivation Prior to Hearing / Procedural Due Process
a. What’s the private interest at Stake affected by the prejudgment measure - is it important?
b. Risk of Erroneous deprivation through current procedures
vs. value of additional safeguards?
c. Gov’t interests in providing the procedure or forgoing burden of greater protections vs. interest to the party seeking the personal remedy ?
2 Kinds of Provisional Remedies
- TRO
2. Preliminary Injunction
Provisional Remedy - TRO - Standards to grant
- Immediate / irreparable harm
2. Why the other party should NOT get notice
Provisional Remedies:
Preliminary Injunction
(4 things + notice)
a. Is it likely to succeed on the merits ?
b. Irreparable harm in the absence of preliminary relief?
c. Balance of equities tip in your favor / fairness to each side
d. Is the injunction in the public Interest?
e. Notice
Where / When can you appeal ?
- After the Final Judgement Rule
§ 1291. Final decisions of district courts
- The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States
28 U.S. Code § 1292
Interlocutory decisions
- Nothing left to decide at the trial level
2 ways to Appeal in the Middle of a Case
- Interlocutory 28 U.S. Code § 1292(b)
2. Writ of Mandamus
Interlocutory 28 U.S. Code § 1292(b)
3 Elements
- The order contains a controlling question of law
- There is substantial ground for difference of opinion of that question
- An immediate appeal from the order may materially advance the termination of the litigation
Writ of Mandamus - (3 Elements)
- extraordinary writ petitioning the appeals court to for an order directing the trial judge to withdraw the contested order
- An equitable remedy having the same ultimate effect - reversal of the trial court’s order
- The appeals court takes the case from the trial court - it has discretion to hear it or not
3 Standards of Review
1) De Novo - No deference to the trial court
2) Clear Error When judges make factual decisions of any kind in order to rule on motions
3) Abuse of Discretion - Most deferential rational basis for the decision then it’s ok
Claim Preclusion
3 ELEMENTS:
1) Prior action concluded in a valid final judgement on the merits
2) Claim in the subsequent action must be the same as the claim that was raised, or should / could have been raised (STOO)
3) The parties in the subsequent action must be the identical to (or in privity to) the first action
Claim Preclusion
Non-Party Preclusion - Privity (6 ways)
1) Agrees to be bound by the determination of issues between other parties
2) Substantive Legal Relationships - property law; subsequent owners
3) Adequately represented party by someone w/ same interest who was a party - class actions, trustees,
4) If Non-party Assumed Control over the litigation;
5) Non-party brings suit as the Designated Representative of a person who was a party
6) Special Statutory Scheme may foreclose; bankruptcy and probate
Restatement § 41 - Person Represented by a Party.
(a) The trustee of an estate or interest of which the person is a beneficiary; or
(b) Invested by the person with authority to represent him in an action; or
(c) The executor, administrator, guardian,etc of an interest of which the person is a beneficiary; or
(d) An official or agency invested by law with authority to represent the person’s interests; or
(e) The representative of a class of persons similarly situated, designated as such with the approval of the court, of which the person is a member.
28 U.S. Code § 1738 - Full Faith and Credit Act
1) So = Same effect of court decision across state lines
2) So if Claim Preclusion in one court then it is precluded in other courts
Issue Preclusion
4 Elements
i. The issue to be precluded subsequent litigation must be the same issue that was raised in prior litigation and resulted in a valid final judgement
ii. The issue must have been actually litigated and determined in the first case
iii. The resolution of the issue must have been necessary to the final judgement in the initial action
iv. Must involve the same parties or been in privity
Non-Mutual Issue Preclusion - Parklane Analysis
“Fairness Factors”to determine validity of the offensive non-mutual collateral estoppel:
1) Could the party trying to assert issue preclusion have intervened in the earlier suit?
2) Did defendant have incentive to litigate the first action?
3) Are there multiple, prior inconsistent judgments?
4) Are there any procedural opportunities available to defendant in the second suit that were not available in the first suit?
