Federal Civil Procedure - Appellate Review

Front 1

Claim preclusion- define:

Back 1

Res Judicata - once final judgment on the merits has been rendered, the claimant is barred from asserting the same cause of action in a second law suit.

Front 2

State the requirements for claim preclusion:

Back 2

Requirements to claim preclusion:

1. final judgment on the merits

2. Same parties

3. Same cause of action in both

Front 3

Judgment is not on the merits if:

Back 3

Judgment is not on the merits if it was based on:
* JX
* Venue
* Indispensable parties

Front 4

Same claim - what is the split of authority?

Back 4

Majority - yes where both cases involve same T/O
Minority - no, because the ct looks at primary rights (ie personal injury and property damage)

Front 5

State the rule for Issue preclusion:

Back 5

collateral estoppel - Issue preclusion arises when you have a previous law suit between the plaintiffs and defendants. Any judgments that occur binds them in subsequent actions on different causes of action as to issues actually litigated and essential to the judgment of the first action.

Front 6

How is collateral estoppel different from

res judicata?

Back 6

Collateral estoppel is narrower -- looks at issue.

Front 7

State the requirements for collateral estoppel:

Back 7

- case 1 ended in a valid, final judgment

- same issue was litigated and determined (must have been litigation)

- issue was essential to case 1

- can only be asserted against someone who was a party to case 1

Front 8

Who can assert issue preclusion (CE)

Back 8

Only by one who was a party to case 1 (mutuality)

Front 9

What is the non-mutual defense issue preclusion?

Back 9

Means the one using it was not a party in Case 1 and is D in Case 2

Front 10

Nonmutual offensive issue preclusion

Back 10

Means that the one using it was not a party in Case 1 and is the plaintiff in Case 2

Front 11

Trend for nonmutual offensive issue preclusion

Back 11

Clear trend in law allow mutual offensive if it is not unfair, which means:

* full and fair opportunity
* foresee multiple suits
* P could not easily have joined
* no inconsistent judgments on record

Front 12

Can a defendant make a 3rd party claim?

Back 12

A Defendant cannot assert a 3rd party claim against another party unless they are seeking to obtain recovery, and that recovery must be for that D's / 3rd party Plaintiff's own liability to the original Plaintiff.

Front 13

What motions must be raised in the 1st response to the complaint (either pre-answer motion or the answer)?

Back 13

* Personal jurisdiction

* Improper venue

* Improper process

* Improper service of process

Front 14

What must be disclosed to the opposing side during initial disclosures?

Back 14

A party MUST provide

the names of the individuals likely to have

discoverable information that the disclosing party may use to support its claims or defenses.

They MUST disclose:

* Identity of the witness

* The nature of the testimony planned

Front 15

What is a special verdict?

Back 15

In a special verdict, the jury is asked to make a finding on all material conclusions of fact. The jury is given a series of questions.

A party waives objections to the form of the questions if they don't object when they are first given to the jury.

Front 16

Does a default judgment require notice?

Back 16

A defendant against whom a default is entered loses the right to contest liability unless the entry of default is set aside, however the amount of damages must still be determined before a default judgment is entered.

The D is entitled to notice of Default judgment hearing by 1st class mail at least 7 days before hearing.