Topics 14 - MC4

Question 1

Appeals FRAP – Rule 32(a)(7)(A) Brief requirement

Answer 1

“A principal brief may not exceed 30 pages, or a reply brief 15 pages . . .”

Question 2

Who can appeal?

Answer 2

A party who has suffered an adverse judgment.
You must be a party;
There must have been a judgment; and
That judgment must have been adverse to your interests

Question 3

What makes a judgment adverse? (2 things)

Answer 3

1. A party has been ordered to do something that they denied they were obligated to do (i.e., pay a judgment, refrain from some conduct, convey some property to another party, etc.).
   Thus, a defendant who denied liability but was found liable and ordered to pay damages has suffered an adverse judgment.
2. A party who was denied a requested form of relief in the judgment has also suffered an adverse judgment.
   Thus, a plaintiff who does not receive all the relief they requested in the complaint can still appeal, even if defendant is found liable and thus the plaintiff has “won.”

Question 4

Who can appeal?

Answer 4

Thus, the standard focuses on whether P received all the relief she requested not whether P won all her claims.

Question 5

Definition of Moot

Answer 5

“deprived of practical significance; made abstract or purely academic”

Question 6

Rule 46 To preserve an error for appeal, a party must:

Answer 6

Request the court to take a particular action or object to the court taking a particular action; and
State the grounds for the request or objection on the record

Question 7

Sandbagging

Answer 7

Sandbagging is giving a weak reason in your objection when you have a strong one in the hope that the court will commit some error that will serve as the basis for an appeal – where you can then argue the strong reason.

Question 8

Affirming

Answer 8

But a party can argue for affirming a trial court’s decision on appeal using reasons that were not raised before the trial court.

Question 9

Exceptions to waiver

Answer 9

Fundamental changes in the law and Plain error

Question 10

what is a waiver

Answer 10

Generally, the failure to object to an alleged “error” by the trial court is treated as a waiver of that error. As a result, no appeal would be permitted based on the waived error.
Similarly, if you fail to request a specific action from the court, you can’t base your appeal on the court’s failure to take that action.

Question 11

Objecting is sometimes referred to as

Answer 11

preserving error.”

Question 12

The right of appeal

Answer 12

• There is no general constitutional right to an appeal in civil cases.
  -Right of appeal from final decisions is granted by a statute (28 USC 1291).
  -But there may be certain kinds of cases that do result in a constitutional right to appeal.
  -And certain asymmetric limitations on appeal may also be unconstitutional.

Question 13

Permissible limitations on right of appeal (pgs. 670-671)

Answer 13

penalizing all losing appellants equally (by imposing a 15% penalty for losing an appeal) OK
singling out one class of appellant (tenants) and imposing additional costs on them NOT OKAY

Question 14

When can an appeal be made? 28 USC 1291

Answer 14

“The courts of appeals … shall have jurisdiction of appeals from all final decisions of the district courts of the United States …”

Question 15

FRAP 3(a) and 4(a) when to file and notice of appeal

Answer 15

FRAP 3(a)(1)
“An appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4.”
FRAP 4(a)(1)(A)
“In a civil case . . . the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.”

Question 16

Can Rule 54(b) be used to transform the decision into a final judgment?

Answer 16

No. Rule 54(b) allows courts to issue a final judgment as to only some of the claims or some of the parties. However, 54(b) cannot be used to split up a single claim into a liability portion and a damages portion to permit immediate appeal of the liability portion.

Question 17

Rule 54(b) when a partial judgment can be made into a final judgment

Answer 17

“When an action presents more than one claim for relief . . . or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.”

Question 18

Rule 54(a) gives “judgment” a special meaning:

Answer 18

“any order from which an appeal lies”
The vast majority of decisions are not judgments
You must pay special attention to any document labeled “judgment.”

Question 19

Judgments must be set out in their own separate document. 58(a) T/F?

Answer 19

true

Question 20

Rule 58(c)(2) For purposes of these rules, judgment is entered at the following times:

Answer 20

(2) if a separate document is required, when the judgment is entered in the civil docket under Rule 79(a) and the earlier of these events occurs:
(A) it is set out in a separate document; or
(B) 150 days have run from the entry in the civil docket.

Question 21

What happens if the judge makes a mistake and enters an appealable order but fails to produce a separate document described as a “judgment?”

Answer 21

Then the judgment is not considered “entered” until either: (1) the judge realizes the mistake and enters a separate judgment; or (2) 150 days after the document is actually put in the file (whichever occurs first).

Question 22

Does the prevailing party have to immediately appeal the judgment? Or must they wait until after the attorneys’ fees request has been resolved?

Answer 22

The Supreme Court recently answered this question. The judgment is final when it is entered (even if there is an outstanding request for attorneys’ fees). And the court held that a party that waited until the attorneys’ fees motion had been resolved lost its appeal b/c it was not filed within 30 days of the judgment.

Question 23

Interlocutory Appeals

Answer 23

Appeals that are made prior to a final judgment are sometimes called “interlocutory appeals.”
Interlocutory means: “Made during the progress of a legal action and not final or definitive.”
Thus any appeal that can be made prior to a final judgment can be called an interlocutory appeal.

Question 24

Injunctions - 28 USC 1292(a)
Injunctions - 28 USC 1292(a)

Answer 24

“the courts of appeals shall have jurisdiction of appeals from . . . interlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions”
Decisions by a trial court to grant or refuse a preliminary injunction can be directly appealed (even though they are not final decisions).

Question 25

A refusal to grant summary judgment in favor of a party seeking an injunction is not considered an appealable decision. (Problem 2 on page 688.) Why not?

Answer 25

The reason is that a refusal to grant a request for an injunction as part of SJ proceedings is not a denial of that request but merely a decision that the issue is subject to a genuine disagreement about material facts and thus must be decided by the jury.

Question 26

Other interlocutory appeals - 28 USC 1292(b)

Answer 26

Trial judge must certify that an otherwise unappealable non-final decision is: On a controlling question of law on which there is substantial ground for difference of opinion; and An immediate appeal would materially advance the termination of the litigation AND The Circuit Court has discretion whether to accept the interlocutory appeal SO RARE

Question 27

Class actions - Rule 23(f)

Answer 27

“A court of appeal may permit an appeal from an order granting or denying class certification . . .” Only applies to orders granting or denying class certification Court of appeals has discretion to grant appeal Does not need permission from trial court This kind of appeal is initiated by filing a notice of appeal with the clerk of the circuit court “within 14 days after the order is entered.”

Question 28

Arbitration - 9 USC 16

Answer 28

a) An appeal may be taken from— (1) an order— (A) refusing a stay of any action under section 3 of this title, (B) denying a petition under section 4 of this title to order arbitration to proceed . . . . (b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order— (1) granting a stay of any action under section 3 of this title; (2) directing arbitration to proceed under section 4 of this title . . .

Question 29

Why are decisions to order arbitration treated differently from decisions not to order arbitration?

Answer 29

Presumably because of the strong public policy in favor of enforcing arbitration agreements in the FAA. Decisions not to order arbitration are subject to immediate scrutiny because they are unexpected. Decisions to order arbitration are the norm and are not subject to immediate scrutiny.

Question 30

Writs of mandamus - 28 USC 1651

Answer 30

“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

Question 31

Three most common forms of error:

Answer 31

Error in a factual finding Error in a legal conclusion Error in the exercise of the court’s discretion

Question 32

When can an appeals court overrule a trial court’s findings of fact?

Answer 32

Findings of fact may only be set aside if they are “clearly erroneous.” See Rule 52(a).

Question 33

When is a trial court’s factual finding “clearly erroneous”?

Answer 33

“[W]hen although there is evidence to support it, the reviewing court … is left with the definite and firm conviction that a mistake has been committed.” But, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”

Question 34

Requirement of Harm (28 USC 2111)

Answer 34

“On the hearing of any appeal . . . the court shall give judgment after an examination of the record without regard to errors or defects which do not effect the substantial rights of the parties.”

Question 35

12(d) motions under 12b6 or 12c, matters outside pleadaing

Answer 35

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

Question 36

Issue preclusion

Answer 36

Generally prohibits a party from re-litigating an issue of fact or law that was actually decided in previous litigation involving that party

Question 37

preclusion

Answer 37

Generally prohibits a party from litigating a claim that was or should have been raised in previous litigation

Question 38

What are its elements? claim preclusion

Answer 38

Same claim (or similar enough) Right parties Final judgment On the merits

Question 39

When do two claims arise out of the same transaction?

Answer 39

When they are “based upon a common core of operative facts.” Essentially the question is whether there is a substantial overlap in the facts necessary to prove both claims.

Question 40

Traditional Approach

Answer 40

Looks at the similarity of the causes of action. If the claim in the second suit requires different legal elements from the claim in the first suit, then they are not identical and the second claim is not precluded

Question 41

Restatement approach majority position

Answer 41

Claims in the second suit are barred by claim preclusion if they arise out of the same “transaction” as the claims in the first suit. Transaction is defined broadly to include facts that are “related in time, space, origin or motivation.”

Question 42

Whose law applies? (federal edition)

Answer 42

When a federal court decides a claim based on FQ jurisdiction, then whatever court (state or federal) later has to decide the impact of that judgment must look to federal law to determine the effect of that earlier judgment.

Question 43

Whose law applies? (federal edition) diversity jurisdiction

Answer 43

But, when a federal court decides a claim based on diversity jurisdiction, then the later effect of that judgment will be determined using the law of the STATE where the federal court that issued the judgment sits.

Question 44

The preclusive effect of a federal judgment arising out of federal question jurisdiction is evaluated using

Answer 44

federal law of claim preclusion.

Question 45

The preclusive effect of a federal judgment arising out of diversity jurisdiction is determined by treating the judgment as if it was issued by

Answer 45

a state court in the location where the federal court sits.

Question 46

Complete mutuality exists where

Answer 46

all the parties to the second lawsuit were also parties to the first lawsuit.

Question 47

Privity arises out of

Answer 47

certain legal relationships between one of the parties to the first lawsuit and some third party who is present in the second lawsuit but was not present in the first lawsuit.

Question 48

Why is buyer’s claim against neighbor precluded?

Answer 48

Successors in interests in real property are treated as being in privity with their predecessors in interest. In other words, the buyer is “in privity” with the owner (from whom he purchased the property) and is treated as if buyer had participated in the earlier suit. As such, a later claim by buyer against neighbor over the same claim is barred by claim preclusion.

Question 49

What is the general rule about when someone is bound by the outcome in prior litigation?

Answer 49

“It is a principle of general application … that one is not bound by a judgment … in which he is not” made a party.

Question 50

general rule about when someone is bound by the outcome in prior litigation exceptions

Answer 50

1 Express agreement to be bound by a prior action 2 Some pre-existing “substantive legal relationships” like predecessors in interest in property 3 Adequate representation by someone with the same interests who was a party (e.g., trustees or guardians) 4 A party who “assumed control” over the earlier litigation 5A party who loses an individual suit and then sues again purporting to act as representative of a class. 6 Some special statutory schemes (like bankruptcy or probate)

Question 51

When does a final judgment have preclusive effect? Majority position

Answer 51

Majority position As soon as it is entered . . . but 10 to 20% of judgments get overturned on appeal

Question 52

When does a final judgment have preclusive effect? Minority position

Answer 52

Minority position Once all appeals have been exhausted . . . but this can take years.

Question 53

What kinds of judgments ought to be considered “on the merits”? Rule 41(b)

Answer 53

“Unless the dismissal states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule – except for one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 – operates as an adjudication on the merits.”

Question 54

Rule 41(b) The rule says all dismissals are on the merits except:

Answer 54

Dismissals for lack of jurisdiction; Dismissals for improper venue; Dismissals for failure to join a party; and Dismissals that expressly say they are not on the merits.

Question 55

Issue Preclusion

Answer 55

Prohibits a party from re-litigating an issue of fact or law that was actually decided in previous litigation involving that party.

Question 56

Issue preclusion requires that the issue

Answer 56

have been actually litigated and determined in the earlier proceeding.

Question 57

is the burden is on the party asserting issue preclusion to demonstrate the issue was actually litigated and determined

Answer 57

yes

Question 58

When is a final judgment given preclusive effect?

Answer 58

The rule here is the same as for claim preclusion. In other words: The majority position is that it has preclusive effect as soon as it is entered. The minority position is that it has preclusive effect once all appeals have been exhausted.

Question 59

First restatement approach to bench trial problem

Answer 59

All alternative/cumulative reasons give rise to issue preclusion So, if D was liable because of reason A and reason B, then both A and B are precluded in later litigation.

Question 60

second restatement approach to bench trial problem

Answer 60

Neither alternative reason is given preclusive effect Unless one or both reasons are appealed, and the appeals court finds one or both of them to be sufficient to uphold the judgment. Whichever ones are sufficient to uphold the judgment on appeal are given preclusive effect.

Question 61

Issue Preclusion requires partial mutuality?

Answer 61

yes The party against whom issue preclusion is asserted must have been a party to the first lawsuit and had a full and fair opportunity to litigate the issue in the first lawsuit. The party asserting issue preclusion can be new!

Question 62

Defensive issue preclusion

Answer 62

occurs when D asserts issue preclusion against P to prevent P from raising an issue that P had previously raised and lost in earlier litigation against a different defendant

Question 63

Offensive issue preclusion

Answer 63

occurs when P asserts issue preclusion against D to prevent D from contesting an issue that D litigated and lost in earlier litigation against a different plaintiff

Question 64

Offensive issue preclusion is not prohibited (just disfavored), but the Sup. Ct. indicates it can be used after consideration of four factors what are they

Answer 64

1. Could P have participated in earlier lawsuit 2. Was earlier judgment for a small or nominal amount (such that D may not have defended vigorously)? 3. Have there been prior inconsistent findings on this issue? (If so, then issue preclusion probably prohibited) 4. Are there significant procedural differences btw 1st and 2nd litigation such that using issue preclusion would prejudice defendant

Question 65

is complete mutuality required when issue preclusion is asserted against the federal governemnt

Answer 65

yes

Question 66

When should the court refuse to apply issue preclusion?

Answer 66

When prior result is manifestly erroneous. When there is new evidence that was not available at first trial. When the prior rulings on the issue are inconsistent.

Question 67

Issue preclusion has been applied to bus and train crashes but has generally not been applied to things like asbestos litigation. Why not?

Answer 67

Asbestos claims, on the other hand, do not arise out of identical causative facts. Each individual plaintiff was exposed in a unique way, in different amounts, over different numbers of exposures and over different periods of time. Thus the facts related to causation are different enough for each plaintiff that courts have been reluctant to use issue preclusion

Question 68

U.S. Const., Art. IV, Section 1

Answer 68

Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State.” States must respect the judicial decisions of other states. But what about judgments from federal courts? What about state judgments in federal court?

Question 69

28 USC 1738

Answer 69

“Such Acts, records and judicial proceedings . . . [of state courts] shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . .”

Question 70

Collateral attack is the name given to the practice of

Answer 70

attacking the validity of an earlier judgment in a later proceeding.

Question 71

So, earlier judgments must be given effect by later courts unless the court that issued the earlier judgment:

Answer 71

Lacked PJ over the parties; or Lacked SMJ over the claim

Question 72

D did not appear at all in the earlier action Collateral Attack Permitted?

Answer 72

D can collaterally attack for lack of PJ

Question 73

Collateral Attack Permitted? D appeared in the earlier action and litigated the merits but didn’t raise lack of PJ

Answer 73

Implicit consent to PJ; no collateral attack permitted

Question 74

Collateral Attack Permitted? D appeared in the earlier action and argued lack of PJ but lost that issue then continued to litigate the merits

Answer 74

PJ litigated; no collateral attack permitted

Question 75

Collateral Attack Permitted? D appeared in the earlier action but did not litigate lack of SMJ

Answer 75

D can collaterally attack for lack of SMJ; but there is a presumption that the issuing court had SMJ.

Question 76

Collateral Attack Permitted? D appeared and litigated lack of SMJ in the earlier action but lost that issue

Answer 76

SMJ litigated; no collateral attack permitted

Question 77

Collateral Attack Permitted? D attacks an earlier federal court judgment for lack of diversity jurisdiction.

Answer 77

No collateral attack permitted.

Question 78

Collateral Attack Permitted? Prior judgment procured through fraud.

Answer 78

Collateral attack permitted.

Question 79

Later courts are not required to enforce injunctions issued by an earlier court (even though they would have to enforce other aspects of the judgment). true or false

Answer 79

true

Question 80

A later court is not required to enforce the issuing court’s judgment if the courts of the issuing state would not enforce that judgment. true or false

Answer 80

ture

Question 81

does full faith and credit apply to foregn judgments

Answer 81

no not automatically, many states have adopted the Uniform Foreign Money Judgment Recognition Act which makes some foreign money judgments enforceable Enforcement is dependent on the foreign courts complying with international standards on due process and fairness

Question 82

international arbitration

Answer 82

Under this treaty, international arbitration awards are presumptively enforceable and there are relatively few defenses to enforceability. It is much easier to enforce int’l arbitration awards than foreign judgments.

Question 83

Reopening Judgments Rule 60(b)

Answer 83

Rule 60(b) permits some litigants to “re-open” a final judgment by going back to the court that issued that judgment and asking for the judgment to be set aside. But there are limits on this power because we want final judgments to remain final in most circumstances. In addition, we want to channel challenges to judgments into appeals, not Rule 60(b) proceedings. actual rule: On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Question 84

time for reopening judgments

Answer 84

1 year

Question 85

Is there any way to re-open a judgment for fraud, mistake or new evidence if more than one year has passed?

Answer 85

Yes. See Rule 60(d)(1) – “This rule does not limit a court’s power to . . . entertain an independent action to relieve a party from a judgment . . . .”

Question 86

An “independent action” is

Answer 86

simply an action to re-open a judgment when the time limits to re-open a judgment under Rule 60(b) have passed.

Question 87

Courts treat Rule 60 motions differently based on what stage the litigation was at when the judgment was issued.

Answer 87

Courts are much less likely to set aside a judgment that was issued after a jury trial. Courts are more likely to set aside a default judgment that occurs because of the failure of D to answer. This appears to be a result of courts wanting to grant parties an opportunity to resolve their disputes on the merits.

Question 88

class action background rule 23(a)

Answer 88

“One or more members of a class may sue or be sued as representative parties on behalf of all members.”