MBE CivPro Flashcards
(123 cards)
1
Q
Deadline for filing a renewed motion for judgment as a matter of law
A
The movant may file a renewed motion for judgment as a matter of law no later than 28 days after the entry of judgment.
2
Q
How to raise an error in a jury instruction on appeal? requirements for preserving this right on appeal?
A
In order to be able to raise an error in a jury instruction on appeal, a party must timely object to the instruction on the record and state the grounds for the objection. A party’s objection is timely if it is made promptly after learning that an instruction has been or will be given or a request has been refused.
3
Q
Deadline for a jury trial
A
A demand for a jury trial must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury. Here, the complaint sought damages, which is an action at law for which a jury trial may be had.
4
Q
Minimum for Jury
Maximum for Jury
A
6~12
5
Q
Civil jury unanimity requirement?
A
yes
6
Q
Jury (Civ)
A
6~12 + Unanimity
7
Q
Jury (Crim)
A
Fed: 12 + Unan
State: 6 or more+ unan
8
Q
How to compel production of documents relevant to litigation from a non-party?
A
A party may use a subpoena to obtain documents relevant to litigation that are in the possession of a person who is not a party to the litigation. Here, the plaintiff properly served a subpoena on the supplier.
9
Q
Is there any indication of ____conference under Rule 26(f)? If not, can a party take a deposition (party or nonparty)?
A
Rule 30 requires leave of the court to take a deposition before the discovery conference under Rule 26(f). Here, there is no evidence that the discovery conference has occurred.
10
Q
Can use interroga to non-party?
Limited to how many?
A
Interrogatories may not be used on nonparty witnesses. Answer choice B is incorrect because a party may serve no more than 25 written interrogatories on any other party.
11
Q
Class action req under CAFA
A
Class Action Fairness Act
100 class members
> 500mil
Min diversity
12
Q
Class action claims, settlement
Requirement.
Req for class members not agreeing to the settlement plan
A
The claims, issues, or defenses of a certified class may be voluntarily settled, compromised, or dismissed only with the approval of the court. In this case, the class action was voluntarily settled without the approval of the court. A class action may be settled even if some of the class members do not accept the proposed settlement. Those class members must be given the opportunity to opt out of the settlement and proceed on their own, as they did here. Although notice of a proposed settlement must be provided to all class members who would be bound by the proposal, notice alone does not make settlement proper.
13
Q
Compulsory Counterclaim
A
Use it or lose it
14
Q
Response to amended pleadings + Court order
A
Unless the court orders otherwise, a party must respond to an amended pleading within the later of 14 days after service of the amended pleading or the time remaining for response to the original pleading. the court can order a responsive time earlier or later than would typically be required. If it does, the court-ordered time period applies.
15
Q
Allegation in the PL’c omplaint. How is it being treated? How about damages?
A
Although an allegation in the plaintiff’s complaint is generally deemed admitted if that allegation is not denied in the answer, the same is not true if the allegation relates to the amount of damages.
16
Q
Fed court + Div Jx + Burden of Proof
Under Erie?
Under Klaxon?
A
Remember that burdens of proof are considered substantive in a choice of law analysis under Erie, but procedural in a conflicts of law analysis under Klaxon.
17
Q
Federal District court + Div Jx
substantive law of which?
A
federal district court with diversity jurisdiction generally must apply the substantive law of the state in which it is located unless a federal statute applies.
18
Q
Fed Q claim
Substantive, procedural law?
A
both federal
19
Q
In rem proceedings. DP notice requirement
A
Due process is met if the notice is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”
20
Q
In determining PJ in Diversity JX. Service of summon rule?
A
Under Rule 4(k)(1)(A), the service of a summons in a federal action establishes personal jurisdiction over a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.”
21
Q
4k1B bulge?
A
Under Rule 4(k)(1)(B), the so-called “bulge provision,” a federal court has personal jurisdiction over a party who is served within a U.S. judicial district and not more than 100 miles from where the summons is issued, even if state law would otherwise not permit such service.
22
Q
When is the diversity determined?
A
When the case is filed as diversity.
23
Q
State law claims generally excluded from diversity JX
A
Probate and family matters
24
Q
Res Judicata?
A
Claim Preclusion
25
Collateral estoppel?
Issue preclusion
26
Defective product. Person sues the motor vehicle dealer and loses. Jury found not defective. now sues manufactuer. Preclusion?
1. Is the claim in the second suit precluded by the prior adjudication? No. Not the same parties.
(If yes, inquiry ends here)
2. If not, are there any issues in the second suit precluded by the prior adjudicaiton? Yes. Same issue - defect.
27
Final judgment for the purpose of Resjudicata? includes what?
Res judicata - Claim preclusion.
Includes SJ, DJ, Dismissal prejudice.
Not necessary there has been a trial .
28
Default Judgment. Claim preclusive? issue Preclusive?
yes. No (not actually litigated)
29
Claim preclusion requirements
1. Final judgments on the merits
2. Second suit must be the same parties or successors
3. Second suit must involve the same claim
30
Issue preclusion requirements
1. Same issue of fact must arise in two suits
2. Issue must have been actually and ncessarily decided in the first suit (litigated)
3. The Party to be precluded must have been a party to the first suit. - his day in court
31
Consent to PJ
Unlike with subject-matter jurisdiction, a party may consent to personal jurisdiction. The consent may be express, implied, or made by a voluntary appearance to defend the case on the merits.
32
Conflicts of law - outcome determinative test.
The district court will start by determining whether there is a conflict between state and federal law with respect to the issue before the court.
If no conflict exists, then the analysis does not need to proceed any further because the court can apply state and federal law harmoniously to the issue.
If no federal statute or rule is on point, then the court must determine whether federal common law, rather than state law, should be applied.
In making this determination with respect to federal common law, a district court will ask whether the failure to apply state law will lead to different outcomes in state and federal court.
If the answer is no, then the district court will generally apply federal common law, rather than state law.
If the answer is yes, then the court will apply state law, unless affirmative countervailing federal interests are at stake that warrant application of federal law.
33
inquiry of federal interest at stake - necessary for what kind of conflict of law?
The one involving the application of federal common law
34
Conflict of law - Application of federal rule v. state rule - validity test under Rules Enabling Act
The court will start by determining whether there is a conflict between state and federal law with respect to the issue before the court.
If the applicable state and federal laws do conflict, then the district court must ask whether a valid federal statute or Federal Rule covers the disputed issue.
Before applying a Federal Rule (rather than a federal statute) that is on point, the court must determine whether the rule is valid under the Rules Enabling Act.
Specifically, the court must ask whether the Federal Rule abridges, enlarges, or modifies any substantive right.
35
Service of process law
Under the federal rules, service may be made by following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located (the forum state) or in the state where service is made.
36
Prelim injunction
A plaintiff seeking a preliminary injunction must establish that: (i) she is likely to succeed on the merits; (ii) she is likely to suffer irreparable harm in the absence of relief; (iii) the balance of equities is in her favor; and (iv) the injunction is in the best interest of the public.
37
Reply to the defendant's answer
Under Rule 7(a)(7), a reply to the defendant’s answer is made only when the plaintiff is ordered to do so by the court. Thus, the plaintiff is deemed to deny any allegations in the defendant’s answer, including any affirmative defenses, if not ordered to reply.
38
Amendment of pleadings as a matter of course
Pursuant to Rule 15(a)(1)(a), a party may amend its pleading once as a matter of course within 21 days after serving it.
39
Amendment re: changing the named D
Under Rule 15, an amendment to a pleading that changes the named defendant relates back to the date of the original pleading if it asserts essentially the same claim or defense, and the new party knew or should have known of the potential action and received notice within 90 days after the filing of the original complaint.
40
Court sanction. How?
A court may impose sanctions, including payment of attorney’s fees, on attorneys, law firms, and parties for violations of Rule 11, but may typically do so only when a party makes a motion for such fees.
41
Requirement for joinder of defendants
In order for joinder of defendants to be proper, any right to relief must arise out of the same transaction, occurrence, or series of transactions or occurrences.
42
Impleader
A defendant may implead a third party at any time after the complaint has been filed by serving a summons and third-party complaint on the third party. The defendant (i.e., the third-party plaintiff) may do so without the court’s permission if he files the third-party complaint within 14 days after serving his answer to the plaintiff’s complaint.
43
Court's determination of the extent of discovery
In general, the court is required to limit the frequency or extent of discovery otherwise allowed by the rules if it determines, in its discretion, that the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake, and the importance of the discovery in resolving the issues. The scope of discovery is limited to relevant matters that are proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issue, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
44
Use of deposition by a party against the deponent
Depositions may be used by a party to impeach the testimony of the deponent as a witness or for any other purpose permitted by the Federal Rules of Evidence.
45
Court sanction in pretrial conference
The court may require that a party or its representative be present or reasonably available by telephone or by more sophisticated electronic means to consider possible settlement at a pretrial conference. If counsel or a party fails to appear, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order. In this case, the car driver failed to appear at the pretrial conference. However, this failure to appear was due to a mistaken belief as to the date of the pretrial conference. If the court determines that the car driver should be sanctioned, then the most appropriate sanction would be the least serious of the sanctions listed. Staying further proceedings until the order is obeyed (i.e., staying proceedings until the pretrial settlement conference takes place) is the most appropriate sanction in this case.
46
PL failure to prosecute(follow up) the case. Impact?
If a plaintiff fails to prosecute his case and, in response to a defendant’s motion, the court dismisses the action, the dismissal is with prejudice and operates as an adjudication on the merits.
47
Peremptory challenge in civil action
Each party in a civil case is entitled to three peremptory challenges. As long as these challenges are not exercised for a constitutionally impermissible reason (i.e., race or gender), there is no restriction on their exercise.
48
Peremptory challenge in crim action
e.g. when indicted on a felony in the USA the defense gets 10 challenges to the prosecution's 6
49
Juror excusal. Requirement?
An individual who has been selected to serve as a juror must participate in the verdict unless excused for good cause, such as illness, family emergency, or misconduct. The federal rules do not authorize the dismissal of jurors to arrive at a specific number of jurors. Here, the judge excused the three jurors without demonstrating good cause.
50
Trial by <5 jury? how?
A case may be tried before and a verdict returned by less than a six-member jury, if the parties so stipulate.
51
JAMOL (not for the claim but ) for a defense. Possibe?
yes . n a jury trial, a party may move for a judgment as a matter of law with regard to a defense as well as a claim. A party may make such a motion once the opposing party has been fully heard on the issue. Since the physician’s attorney has presented his case, the motion by the patient’s attorney with regard to the physician’s statute of limitations defense was both proper and timely.
52
JAMOL requirement
Under Rule 50(a), once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if the court finds that there is insufficient evidence for a jury reasonably to find for that party.
53
JAMOL Timing
A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury, provided a party has been fully heard on an issue. Thus, the motion may be made after the presentation of all evidence but before the case goes to the jury.
54
court's corretion of clerical error? when in appellate court?
A court may correct a clerical or other mistake resulting from oversight or omission whenever one is found in a judgment on motion by a party or on its own initiative, with or without notice. However, once an appeal from the judgment or order has been docketed in the appellate court, such a correction can be made only with leave of the appellate court.
55
Appellate court's power re: certification appeal
An appellate court may, but is not required to, hear an immediate appeal of a certification decision rendered by the district court.
56
Injunction. Immediately appealabe?
Yes. While most interlocutory orders are not immediately appealable, certain equitable orders are reviewable immediately as a matter of right, including an order granting an injunction.
57
Notice of appeal filing deadline
A judgment or order certified under Rule 54(b) must generally be appealed within 30 days from the date of the entry of the certified judgment. The notice of appeal was filed after the 30 days had expired, so the appeal is untimely.
58
Appeal permitted + Proceeding in the Dcourt?
If an appeal is permitted, it will not stay proceedings in the district court unless the district court or the court of appeals so orders.
59
Bankrupt clinic that was vicariously liable for the doctor's negligence. Is doctor precluded in litigation?
No. Issue preclusion requires that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the first action. Although there was an employer-employee relationship between the clinic, the defendant in the first action, and the doctor, the doctor was not in privity with the clinic nor a successor-in-interest. Consequently, the doctor was not a party to the first action against the clinic.
60
A Fed ct with SMJ. Must adjudicate the controversy despite the pendency of a similar action?
yes. A federal court with subject-matter jurisdiction is required to adjudicate the controversy despite the pendency of a similar action in a state court.
61
Impleader Jx
A plaintiff may assert related claims against an impleaded party when the claim falls under the court’s jurisdiction. Here, subject matter jurisdiction does not exist with respect to the spouse’s claim against the third party based on diversity jurisdiction because both the spouse and the third party are citizens of the same state.
62
Due Process In Rem notice
Due process is met if the notice is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of an action and afford them an opportunity to present their objections. If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through in-person delivery, registered mail, return receipt requested, or some other means likely to notify the particular individual is required. Notice by publication under such circumstances would not be sufficient.
63
Venue Rule
Generaly not on PL residence
1) Where D resides
2) Where claim arose
3) If neither above, then any district D is subject to PJ
64
Federal Tort Claims Act - Venue
n an action filed under the Federal Tort Claims Act, venue is proper either in the judicial district where the plaintiff resides or in the judicial district where the act or omission occurred. Here, the judicial district for the western state in which the plaintiff resides is also the district in which the act or omission that gave rise to the claim arose.
65
Venue + An action against a federal officer actin in official capa
An action against a federal officer or employee acting in an official capacity or under color of legal authority may be brought in the judicial district in which the plaintiff resides.
66
Transfer rule `
Transfer is only to a district with proper venue (where the claim could have been brought originally)
Exception: Improper venue may occur when ALL parties agree
67
Federal law vs. State law re: pet food. Which law?
If the applicable state and federal laws conflict, the district court must ask whether a valid federal statute covers the disputed issue. Here, there is a valid federal statute on point, so the district court must apply federal law rather than the State B law.
68
TRO requirement
Before a court can issue a temporary restraining order, the attorney of the party seeking the order must certify in writing any efforts made to give notice and the reasons why notice should not be required.
69
D's waiver of service + answer requirement?
If a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside a judicial district of the United States.
70
Sanction. way to avoid sanction
A party (or party’s attorney) may seek sanctions that can include the payment of reasonable attorney’s fees and other costs attributable to violation of the certification made by a party or the party’s attorney in presenting a pleading or other paper to the court. Among the certifications made is that factual contentions contained in a pleading have evidentiary support based on a reasonable inquiry. Although the employee’s attorney violated this certification, the employee’s attorney is not subject to sanctions because the attorney withdrew the counterclaim within 21 days of service of sanctions motion.
71
Interpleader. Explain
to resolve the problem of competing claims to the same property
(entitlement to life insurance proceeds)
72
Statutory interpleader. Requirement
1. Amount: >500
2. authorizes nationwide service - inpersonam anywhere
3. Venue proper anywhere the claimant resides
4. SMJ based on minimal diversity
73
Federal Staturoy interpleader requirement
n order to file a federal statutory interpleader action, the stakeholder must be willing to either deposit the property at issue with the court or to post a bond in an appropriate amount.
74
Joinder of claims
As between the same PL and the same D, all claims may be joined (need NOT be related)
75
Class action 23(a) requirements
1. Numerosity
2. Commonality
3. Typicality
4. adequacy
76
Class action 23(b) requirements
1. Risk of prejudice
2. Final Equitabe Relieff
3. Common legal or factual questions
77
Class action fairness act of 2005
1. min 100 members
2. with more than 5 mil at stake
3. only minimal diversity
78
DJ entered by who? Relief sought? accompanied by what?
When a party has failed to plead or otherwise defend an action, and that failure is shown by affidavit or otherwise, the court clerk must enter the party’s default. Once a default is entered against a party, the plaintiff may seek a default judgment. If the relief sought is a sum certain or an amount that can be made certain by computation, the default judgment can generally be entered by the court clerk on the plaintiff's request, accompanied by an affidavit showing the amount due.
79
"two-dismissal" rule
If a plaintiff voluntarily dismissed a prior state or federal action based on the same claim by filing a notice of dismissal, then a subsequent dismissal of the same claim by notice will be with prejudice, and thus has preclusive effect. *must seek leave of court for dismissal without prejudice"
(Policy: PL has to pay if she ends up filing the same twice)
80
SJ requirements
Under Rule 56, a motion for summary judgment must be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.
81
The fed statute creating a cause of action silent as to an action filed under it may be heard by a jury. Necessary inquiry?
If a new cause of action that was unknown at common law is created, such as the statutory cause of action here, then the court must look to whether the remedy sought is legal rather than equitable; if it is legal, a jury should be allowed.
82
Remittur
If the court determines that a verdict was excessive, then it may offer a reduction of the verdict, known as a remittitur, and grant a new trial on the condition that the remittitur is not accepted. See Hetzel v. Prince William County., 523 U.S. 208 (1998). If the court determines that the verdict was inadequate, then it only has the option of ordering a new trial. An additur (enhanced judgment) is not permitted.
83
Sanctions subject to which review standard?
Abuse of discretion
84
Special Verdict
A special verdict is a written finding made by the jury on each issue of ultimate fact. The court submits written questions to the jury correlating to each ultimate fact of the case and asks the jury to make a finding on each fact (e.g., “Was the defendant negligent?”). The court may specifically direct the jury’s response to a question (e.g., “Yes or No”) or may permit the jury to respond with a brief answer (e.g., the percentage of a defendant’s fault in a negligence action). The judge then determines the legal consequences of those findings.
85
General Verdict
A general verdict is typically a decision by the jury as to the prevailing party and, if the plaintiff is the prevailing party, the amount of damages. It is the usual form of a jury verdict in a civil case.
86
General with special interrogatories
This type of verdict couples a general verdict with a special verdict. It is used to ensure that the jury independently considered the material facts of the case in arriving at its verdict. If the answers to the interrogatories are consistent with each other but not with the general verdict, then the court may: (i) approve a judgment that is consistent with the answers, notwithstanding the general verdict, (ii) direct the jury to reconsider its answers and verdict, or (iii) order a new trial.
87
Civil jury
Unless the parties stipulate otherwise, the Federal Rules of Civil Procedure require that a jury verdict be unanimous.
88
Jury instruction. Court's discretion. party right 으ㄹㅍ어봐
Although the court may require the parties to file jury instructions at the close of evidence or at any earlier reasonable time, a party can file a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court for such requests. Here, because the defendants did not know of the special verdict form until the charge conference, it is unlikely that they could reasonably have anticipated the possible jury confusion that the defendants’ requested instructions sought to address.
89
All-white jurors. Judicial error?
On these facts, the all-white jury may be merely coincidental, and is not conclusive evidence of judicial error.
90
Jury returning the verdict inconsistent with the court's instructions
When a jury’s verdict does not properly follow the court’s instructions, the court may set aside the verdict and order the jury to resume deliberations. In this case, because the court properly instructed the jury as to the law, the court can order the jury to resume deliberations, and would even be within its discretion to order a new trial.
91
Additur v. Remittitur
Although a federal court is permitted to offer remittitur (a reduction in the damages awarded by the jury) as the means by which the plaintiff can avoid a new trial, a federal court is not permitted to offer additur (an increase in the amount of damages awarded by the jury) as the means by which the defendant can avoid a new trial.
92
Interlocutory orders immediately appealable as of right
Any order granting or modifying an injunction
Any order that changes or affects possession of property
93
Discretionary interlocutory appeal
Any interlocutory order appealable with leave of courts - BOTH trial court and Appellate must agree
Trial court
1. Issue involving a controlling Q of law with substantial grounds for difference of opi
2. The immediate appeal may materaially advance termination of the litigation
Appellate court must then agree
94
Immediate appealability of interlocutory order
Federal courts of appeals may hear appeals from the final judgment of the district courts, but most interlocutory orders are not considered final and are therefore not immediately appealable. If a district court certifies that an immediate appeal would help to resolve an unclear interpretation of a controlling question of law, however, a court of appeals has discretion to allow the appeal if the application is made to it within 10 days after the entry of the order. But such certification must occur.
95
Review standard for District court's findings of fact
Clearly erroneous
96
Rule 4k2
Also to foreign D. For Rule 4(k)(2) to apply to a foreign defendant, the claim against the defendant must be based on federal law and there must be minimum contacts with the United States to justify personal jurisdiction in federal court. Here, neither of these requirements is met.
97
Passing through. PJ?
N
98
in rem jurisdiction
In general, for in rem jurisdiction to exist, the property at issue must be present within the forum state.
99
Quasi-in-rem jurisdiction requires
Quasi-in-rem jurisdiction requires minimum contacts to exist between the defendant and the forum state before jurisdiction will apply. If the State C court cannot constitutionally assert personal jurisdiction over the defendant, as the answer choice posits, then there is no jurisdiction (either in personam or quasi-in-rem) and the attachment should be quashed.
100
Removal statute.
Under Section 1441(a) of the removal statute, an action may be removed to the federal court in the district where the state action is pending. That removal statute determines venue, regardless of whether venue would have been proper under the venue statute (Section 1391) if plaintiff had originally brought the action in that federal district court.
101
Federal rules on service of rpocess
Service generally may be made within the state in which the federal district court sits by
(i) personally serving the summons and complaint on the defendant,
(ii) leaving the summons and complaint at the defendant’s usual place of abode with a person of suitable age and discretion who resides there, or
(iii) delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.
102
D agrees to waive service. Service date?
If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service of process.
103
Relation back requirement
new Claim/ New party out of a same transaction
104
A party is considered necessary if
f the party’s absence would leave the existing parties subject to a substantial risk of multiple or inconsistent obligations.
105
Whether the court lacks subject matter jurisdiction over a person who has not been joined as a party
can dictate whether the court can order the joinder of the person as a party, but does not determine whether that person is a necessary party.
106
Necessary party. feasible requirement
1. does not deprive of SMJ
| 2. Court can assert PJ against the nec party
107
Proper 3P claim (impleader)
often contribution/indemnification
108
Impleader. when leave of the court?
more than 14 days after service of original answer
109
notice to the class members, other than the named representatives
For a class action that is certified under Rule 23(b)(1) or (2), notice to the class members, other than the named representatives, is at the discretion of the court.
Rule 23(b)(3) The best notice that is practicable under the circumstances.
110
Under Rule 30, a party may take the deposition of any party or nonparty witness at any time after -------------pursuant to Rule 26(a).
after the party has made its mandatory initial disclosures
111
the court’s decision to order a sanction against the defendant. standard of review
to review under the abuse of discretion standard
112
Pretrial Conf. Sanction?
Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement.
The court may require that a party or its representative be present or reasonably available by telephone or by more sophisticated electronic means to consider possible settlement.
If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action.
Here, the court can direct the women to be available for the pretrial conference because it may facilitate a settlement and expedite disposition of the action.
113
Jury instruction. Objection and preservation for appeal
objections must be
1. on record
2. for stated reasons
3. before jury retires to deliberate
timely objection preserves the issue for appeal.
114
Demand for Trial by Jury
1. Writing
2. Either in a pleading or separate motion
3. No later than 14 days after service of the last pleading directed at the issue
115
number of challenges for cause,
unlimited
116
New Trial requirement re: jury
a party must demonstrate that a juror failed to answer honestly a material question on voir dire, and show that a proper response would have provided a valid basis for a challenge for cause.
117
Perempt Challenge + gender-based reason. Permitted?
No. While peremptory challenges may generally be made for any reason, such challenges may not be made for a gender-based reason.
118
Bench trial. Any court obligation to state on the record?
No. The court is the finder of fact; it must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.
119
Collateral order doctrine
1) conclusively determines the disputed question, 2) resolves an important issue that is completely separate from the merits of the action, and 3) is effectively unreviewable on appeal from a final judgment.
120
n order that appoints or refuses to appoint a receiver
Although generally a district court order that does not constitute a final order is not immediately appealable, there is a special statutory exception for an order that appoints or refuses to appoint a receiver.
121
review Standard for question of law
De novo
122
review Standard for findings of fact
clearly erroneous
123
Clearly erroneous / Plain error / harmless Error
Clearly erroneous - to findings of fact
Plain error - w/r/t jury instructions that affect subst rights
Harmless error - appellate court determines d court's admission of evidence in error, affected a party's substantial error. Must disregard all errors that do not affect any party's substantial rights.
