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188 Cards in this Set
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Personal Jurisdiction
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- In personam
- In rem - Quasi in rem |
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In personam jurisdiction
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Jx over peron of a particular defendant
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In rem
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Right to decide rights of all to a particular piece of property
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Quasi in rem
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Right to decide rights of certain people over specific property
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4 Statutory limits on In personam jx
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1. Def. present in forum state and is personally served.
2. Def. domiciled in forum state 3. Def. consnts to jx 4. Long arm statute |
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CA Long Arm Statute
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CA gives courts power over any person/property over which state can constitutionally exercise jx
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Constitutional Limits on In personam Jx Statutes
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MINIMUM CONTACTS
- Purposeful availment - Foreseeable FAIR PLAY & SUBSTANTIAL JUSTICE - Relatedness of claim to contacts - Convenience to def. - State has legit interest in providing resident redress |
My parents frequently forgot to read children's stories
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In rem jurisdiction
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Presence of property in state
Notice by mail is enough |
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Quasi in rem jurisdiction
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Minimum contacts
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Federal diversity subject matter jurisdiction
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- DIversity
- Federal question |
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Diversity among parties
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Complete diversity when suit starts.
- Supplemental jx can't override complete jx req. - interpleader exception: minimal diversity and over $500 is enough. - Alienage jx: US citizen v. Alien, but not alien v. alien |
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Individual citizenship
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State = Permanent Home
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Corporations
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- Citizen of each state of incorporation and principal place of business.
- If exec. offices in 1 state & phys operation wholly in another. - PPB = physicial operations state - If operations in many states, nerve center test, PPB = state w/ executive offices. - Incorporated in foreign country = alien for diversity purposes, if PPB in US, also citizen of that state. |
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Unincorporated associations & LLCs
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Citizen of ech state of which a member is a citizen.
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Legal representative
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Citizenship the same as the person represented.
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Class actions
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Diversity determined by citizenship of named rep
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Class actions & voluntary change of citizenship
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- can select class rep to create diversity.
- Plaintiff can move state citizenship to create diversity before suit commences as long as genuine and not temporary |
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Defeating diversity
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- No rule prevents assignment of claim to defeat diversity.
- Fraudulent joinder of in-state defendant to defeat diversity does not bar removal. |
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Supplemental (ancillary) Jx
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Claims that could not alone invoke fed jx if arise from common nucleus of operative facts as claim staisfying subject matter jx
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Subsequent addition of parties
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- must meet jx requirements.
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Substitution of parties
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- substituted party keeps citizenship of original
- replaced party carries own citizenship |
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Third-party practice - Impleader
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generally diversity not req'd btw 3PD & 3PP or original P unless P asserts claim against 3PD
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Cross-claims
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- Claim from same T/O by one co-party against another.
- Ancillary/supplemental jx if no independent basis. |
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When can't you use supplemental jx?
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If based solely on diversity when claims by P would not have complete diversity.
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Jurisdictional amount
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$75,000.
- Amount in controversy determined by P's good faith allegation. - Complaint dismissed only if no legal possibility of recovery over $75K. - Claims joined under supplemental jx need not meet 75K |
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Aggregation
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- May aggregate amount of separate claims.
- Can aggregate from claims against several Ds if jointly liable. - Several Ps can aggregate claims only if seeking to enforce a single title or right in which they have common/undivided interest. |
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Counter claims
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P cannot include D's counter-claims to reach $75K.
- Compulsory counter-claims need not meet $75K - Permissive counter-claims must meet. |
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Erie Doctrine for Diversity Cases
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-Federal procedural law & state substantive law.
- Outcome determinative test to decide if substantive or procedural. If substantially determines outcome, apply state. If it's arguably procedural, apply federal rule |
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CA approach to Conflicts of Law in Torts
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Government Interest Approach.
Analyze comparative impairment to each state's interest should law of the other be applied. |
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CA approach to conflicts of law in contracts
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Choice of Law Clauses
- If clause is valid, determine if it conflicts with CA law or policy. - It is valid if r/able basis exists for choice. - If it conflicts, is CA's interest greater in determining the issue? - If K does not have a choice of law clause, govt interest approach. |
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Diversity Jx over Family and Probate Cases?
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NO
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To Whom does the Multi-party Multy-forum Trial Jx Act of 2002 Apply?
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Accidents at discrete location where at least 75 people died.
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Multi-party Multy-forum Trial Jx Act of 2002
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Minimal diversity and one of three conditions must be met:
1. One Def resides in different state from place of accident. 2. Any 2 Defs reside in different states, or 3. Substantial parts of accident occurred in different states. Anyone w/claims arising from acident can intervene as P, and nationwide service of process allowed. |
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What is a Federal Question?
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Arising out of the Constitution, federal law, or treaties
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How do you get supplemental jx with FQ jx?
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Pendent claims. If you have fed & state claims, fed ct takes jx over state claim IF both from common nucleus of operative fact & P would ordinarily be expected to litigate claims in 1 proceeding
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Common nucleus of operative fact
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What are pendent parties?
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- Jx if P sues more than one D, federal jx over 1 D, no fed jx over 2nd D and the claim arises out of same common nucleus.
- Jx if multiple Ps assert claims against 1 D and claims from same common nucleus |
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Subject Matter Jx in Calfiornia: Jurisdictional classifications
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- All counties have 1 superior court that can exercise general SMJ.
- Limited civil cases - Unlimited civil cases - Small claims |
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Limited Civil Cases
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- <$25K in controversy
- Restrictions on equitable, declaratory, and ancillary relief |
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Unlimitied civil cases
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= > $25K and full range of relief available
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Small claims
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< $7500 in controversy
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Reclassification
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- notice and hearing required
- must find recovery > 25K virtually impossible to reclassify as limited - To reclassify as unlimited, must find a possibility of verdict >25K. - Other means? Amend complaint or cross-complain over $25K, or request relief not available in limited. |
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Federal Venue is generally prroper in a district where:
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- Any D resides IF all Ds reside in same state.
- Substantial part of events/omissions giving rise to claim occurred or substantial part of property subject to action is situated. - if no district that satisfied 2 above, sole diversity actions are proper where any D is subject to personal Jx at time action commenced. - If not solely diversity, where any D may be found. |
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How do you determine residence
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Individual - DOMICILE.
Corporations - Any district where subject to personal jx - Unincorporated associations - where it does business |
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What is a local action?
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A district where property that is subject matter of action is located.
- IN CA: county where land located. |
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Improper venue - can it be waived?
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YES. In fact, failure to object is a waiver.
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Can you transfer?
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YES. Even if you're in the proper venue, you can transfer it for convenience or interest of justice.
- The transferee forumn MUST have SMJ and PJ over D, and venue still must be proper. |
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What is the applicable law under transfer?
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It depends.
- If original venue proper, the law of transferor court applies. - if original venue improper, law of transferee court applies. |
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Transitory actions in CA
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County where any D resides at start of suit is proper for venue, OR
- K actions also proper in county of performance or where K formed. - PI/Wrongful death also proper where injury occurred. - If no D resides in CA, then in ANY county. |
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Mixed actions in CA
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County where any D resides unless compelling reasons for different county.
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What about cases against corporations, associations, or partnerships in CA?
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The county in which the K made or to be performed, where obligation of liability arises, in which breach occurs, or corp's PPB.
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When is transfer of venue proper in CA?
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- When there's reason to believe an impartial trial cannot be had in original county.
- When convenience of witnesses & ends of justice promoted by change - No judge qualified to act in chosen county. |
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Forum & venue selection clauses in CA
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- Reasonable forum clauses are OK.
- Venue clauses are not enforceable. |
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Removal to fed court
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- Original fed jx necessary to remove.
- For diversity cases, no D citizen of state where action filed. |
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Who may remove?
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Defendants ONLY.
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Where is venue when removed?
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Venue lies in federal court where state suit is pending.
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Removal and diversity
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Dismissal of non-adverse party creating complete diversity allows removal. NO removal if it would be a diversity case and D is citizen of state where filed.
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Removal procedure
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- File notice in district court.
- P can move to remand if no federal jx - Fed court can remand once all fed claims resolved, leaving only state claims over which no diversity jx. |
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Conflict of jx between federal & state claims
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- injuctions against state court proceedings.
- Abstention - Federal intervention on constitutional grounds |
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Injunctions against state court proceedings
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- Pending state proceedings enjoined only if expressly authorized by statute or if necessary to aid of fed jx to protect or effectuate federal judgment.
- No injunction of threatened state criminal proceedings unless irreparable harm clear & imminent and appellate relief inadequate. |
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Grounds to abstain
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- State law unclear & could be interpreted to avoid federal question
- State administrative regulatory plan disturbed by fed ct taking case. |
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Federal intervention on constitutional grounds if fed. P demonstrates what?
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- Great & immediate irreparable injury.
- Bad faith in the prosecution of state action. - Harassment or unusual circumstances calling for fed. equitable relief. |
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How is an action commenced?
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By filing the complaint.
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Service of process in federal court
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- by any non-party at least 18 years old.
- Personal service, service left at Ds abode, service upon authorized agent, OR as provided by state rules or by mail under Rule 4(d) waiver. |
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Service for CA court
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- By non-party over 18
- Personal delivery, substituted service followed by mail, by mail, by publication |
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Parties served outside of state in federal court
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-Must use state and federal statutes and regs
- If 3P D or required to be joined, it's good if served w/in 100 miles of court. - if FQ claim, ct may exercise personal jx over D not subject to particular state's jx if contacts with US sufficient. |
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Parties served out side of state in CA court
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In-state methods or by first class mail requiring return receipt but still must have proper basis for personal jx.
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Immunity from process
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- If you enter state only to appear in different action (FED ONLY)
- If induced into state by P's fraud or deceit. |
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Interlocutory injunctions
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- Preliminary injunctions
- TROs |
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Preliminary injunctions
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- Before trial to preserve status quo
- Notice & opportunity tyo be hear for OPY |
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TRO
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- If irreparable harm will occur issued until preliminary hearing
- Notice required unless moving party. - If no notice, TRO only for 10 days. - TRO will issue ex parte, but party not bound until it has notice of it. |
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What are the requirements for a TRO w/o notice?
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- States irreparable injury she'll suffer w/o TRO
- Certifies in writing efforts made to notify OPY & reasons notice should not be required. - Provides security to pay any damages OPY occurs if wrongfully restrained. |
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CA TRO distinctions
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- No time limit, instead expires when prelim granted/denied.
- Hearing w/in 15 days if OPY not notified. - No Bond Required! |
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Distinction between Federal and CA pleadings?
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Federal = NOTICE pleading
CA = FACT pleading If damages sought, MUST state amount unless seeking punitives. |
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Pre-answer motions under 12(b)
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- lack of SMJ (anytime until all appeals exhausted)
First filing: - lack of personal jx - improper venue - insufficiency of process/service Anytime prior to or at trial -Failure to state a claim upon which relief can be granted -failure to join an indispensable party |
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CA motions
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- File demurrer to complaint or COA or D's answer
- General demurrer - Special demurrer - motin fo quash service of summons to challenge PJ - Motion for forum non conveniens -Motion to strike - anti SLAPP |
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CA general demurrer
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-Pldg fails to state facts sufficient to constitute COA or
- Court lacks SMJ |
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Special demurrer
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- Lack of legal capacity
- existence of another pending action - defect/misjoinder of parties - ;uncertain pleading - failure to plead whether K is oral or written - failure to file certain required certificates |
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Motion to quash service of summons to challenge PJ
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Must raise at earliest opportunity
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Motion for forum non conveniens
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Movant to prove alt forum suitable and :
- D subject to PJ - SOL not run - Will provide DP & impartial judiciary - public and private interest factors balance in favor of alt.. |
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Federal motion for more definite statement
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before responding to vague pleading. (in CA known as special demurrer for uncertain pleading)
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Motion to strike
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Move to strike any insufficient defense, or any redundant, immaterial, or scandalous matter.
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CA anti-SLAPP motion to strike
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Strategic Lawsuite Against Public Participation.
D to show COA arises from protected activity. Burden then shifts to P to show probability of prevailing. Exemptions for actions brought solely in the public interest, or on behalf of general public, and for actions brought against sellers of goods/svcs who make representaitons re: their business or a competitor's business, and enforcement agencies |
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Federal Court Answer
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-Specific denial or admission of each averment of complaint or generral denial w/special admissions.
- statment D w/o knowledge and or information sufficient to form a belief (denial) - Failure to deny = an admission. - Answer must state affirmative defensees - Due w/in 20 daysw of personal service, 60 days of mail service, 10 days of denied 12(b) motion |
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CA denial
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General or specific denial
- can deny on basis of info/belief or lack thereof -failure to deny = an admission - if verified complaint, must give verified answer with specific denials - fact pleading for affirmative defenses - due w/in 30 days of service or 10 days after demurrer denied. |
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Effect of failure to answer
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Default, and then default judgment. Party may not proceed w/ action until default set aside.
- IN CA - must give notice that default might be entered. - determine damages before default judgment entered |
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Default judgment - Federal
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only entered if:
- claim is for a sum certain - default entered b/c of failure to appear, and - defaulted party is not an infant or incompetent. |
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Default judgment - State
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-Action arises out of K or judgment
- action for sum certain - defaulting party not served by publication |
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Notice after default required - federal
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- Must give notice to all parties who have appeared & to defaulted party after entry of default.
- If D appeared, must be notified of request for default judgment by first-class mail 3 days before hearing. |
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Notice after default required - CA
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defaulted party not entitled to notice of hearing, and has no right to appear/present evidence.
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Counter-claims(fed)_/Cross-complaint (CA)
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- Compulsary if claim arises from same event as P's claim.
- Permissive = any other claim D has against P if he meets jx reqs |
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Amendements and supplemental pleadings
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- Once by right (CA) or as a matter of course (fed)
- thereafter, only by written consent of OPY (fed) or by leave of court upon motion (both) |
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Amendments to add new COA against named D
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New COA relates back if based on same general facts as original
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Amendment to add D
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- If SOL has not run, may add
- Exceptions if SOL has run. |
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Exceptions when SLO has run and adding D will relate back
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Mistake (FED and CA)
CA Doe amendments |
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Cases of mistake Fed
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- Concerns same T/O and w/in 120 of filing complaint.
- D has received notice of action so that will not be prejudiced - D knew/should have known that but for mistake re: ID, action brought against her. |
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Cases of Mistake State
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- Can correct typos
- Equitable estoppel theory allows P to correct mistake in naming closely relatted entity |
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CA "Doe" Amendments
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Sue D under "Doe" designation IF:
- Complaint timely filed w/charging allegations against all Ds including Does, - P genuinely ignorant of ID/Facts giving rise to COA against Does or fact that law provides COA, and - P's ignorance pleaded in the complaint - Three years from filing to discover Does' ID and serve |
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- By presenting paper to ct, atty certifies that to the best of her knowledge, info, y belief,
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- Paper not presented for improper purpose
- Legal contentions warranted by law, non-frivolous argument for modifying law, or establishing new law - Allegations and factual contentions have/upon furtehr investigation will/ discovery likely to have evidentiary support - Denials are warranted on evidence or where indicated r/ably based on lack of info/belief |
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Federal sanctions if present paper violating certifications
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- Court may order proponent to show cause why sanctions should not be imposed OR
- OPY serve motion for sanctions & if proponent does not w/draw or correct w/in 21 days file motion w/court |
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CA sanctions distinctions
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- Court assesses whether party exercised due diligence
- 21 day provision applies to OPY & court motions - Motion brought by OPY primarily for improper purpose also subject to sanctions |
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Compulsory joinder of parties
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Compulsory if:
- Complete relief cannot be given to existing parties in absence OR - Disposition in absence will impair ability to protect own interest OR - Absence would expose existing parties to multiple obligations. |
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Compulsory Joinder and Diversity
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- MUST join if party has PJ and joinder won't destroy diversity.
- If joinder not feasible, must decide if a necessary party |
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Necessary party
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- Judgment in absence would prejudice existing/absent parties
- Prejudice can be reduced by shaping the judgment - Judgment in party's absence would be adequate - P will be deprived of adequate remedy if case dismissed |
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Permissive joinder
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May join as P or be joined as D whenever:
- Some claim made by each P & against each D relating to or arising oout of the same series of events, AND - Question of Law of fact common to all parties. MUST still meet jx reqs |
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What happens if it's a necessary party and destroys diversity
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Court looks at the factors for a necessary party, and decides to dismiss or proceed. If necessary party, DISMISS.
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Joinder of Claims
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- P can join as many claims as he has against D.
- When multiple Ds or Ps, must be same T/O. CA requires common question of law or fact. - P in diversity case can aggregate all calims against D to meet $75K |
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Class Action reqs
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- Numerosity (joinder of parties impossible)
- Commonality - Typicality (class rep's interests typical of all) - Adequate representation (by class rep) |
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Other class factors - must meet one:
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- Separate actions create risk of inconsistent results, or impairs interests of unnamed parties.
- D acted/refused to act same to class & equitable relief appropriate for whole class. OR - Common Qs of law/fact predominate & class action is superior method. |
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Effect of judgment in class action
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All members bound except in common question action where members notify court they do not want to be bound.
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Notice req for class
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Only required in common question action, so members can opt out.
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Jx in Class action
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If diversity, only rep's citizenship considered.
- One rep's claim MUST meet $75K unless rare "joint" or "common" claims. - Supplemental jx over members' claims that do not destroy diversity. |
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Settlement in Class Action
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Court must approve
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Class Action Fairness Act and SMJ
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- Any class member of diverse citizenship from any D
- Aggregate amount in controversy exceeds $5M. - At least 100 members in proposed class. |
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Excluded Actions in Class Action Fairness Act
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- Primary Ds are states, state officials, or gov't entities.
- Solely federal securities claim. - Claim re: internal affairs of corporation based on law of state of incorporation. |
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Mandatory decline of jx
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- More than 2/3 class citizens of state of filing.
- D from which significant relief sought is citizen of that state AND - Principal injuries incurred in state where filed. |
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Discretionary decline of JX
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- 1/3 to 2/3 of class citizens of state where filed and
- Primary Ds also citizens of that state - Court considers whether: - Claims = matters of ntl interest - Claims gov'd by state law where filed. - State's distinct nexus with class, harm or D |
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Shareholder Derivative Suits: Can sue to enforce right of corporation that those in control refuse to assert if they prove:
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- shareholder at time of event
- action not a collusive effort to confer jx on court, and - demanded directors, or states why they did not demand |
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Shareholder Derivative suits - Jx Amount?
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Determined by the corp's damages.
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Shareholder Derivative Suits - VENUE
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Where corp could sue Ds
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Class Actions in CA
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May be maintained when question is one of a common or general interest, of many persons, or when parties are numerous, and it is impracticable to bring them all before court.
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Min Reqs for Class Action in CA
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- Ascertainable class.
- Well- defined community of interests amoun members. - Do common qs of law/fact predominate - will class action result in substantial benefit - Will rep adequately rep class? |
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Interpleader
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Started by stakeholder to require adverse claimants to deetermine which has the valid claim to the stake.
Applies if separate actions may result in double liability against stakeholder. |
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2 grounds for interpleader
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1. Rule 22 reqs: Complete diversity OR FQ
2. Section 1335 reqs: Minimal diversity between claimants and $500 in issue. |
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Intervention of Right
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Interest in subject matter of action and decision w/o intervenor may impair his ability to protect that interest.
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Permissive Intervention
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- Intervenor's claim or defense & main action have q of fact/law in common.
- CA standard: whether intervenor's interest is direct and immediate. - Must be supported by own jx ground |
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3P practice
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- D can implead person (3PD) who is/may be liable to him for any part of D's judgment against D (3PP).
- Venue need not be proper for 3PD. - 3PD can raise defenses against P's claim and liability asserted against him. |
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3PD interplead in CA
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COA in cross-complaint adding new party for any purpose must either rise out of same event as COA against D/3PP, or must assert claim/inerest in the subject of P's action against D/3PP.
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Cross-claims
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Parties on same side assert claims re: original T/O against each other.
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Federal Disclosure
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- Initial
- Expert - Pretrial |
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Intial Disclosures
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- Info re: people likely to have discoverable info the discloser may use unless solely for impeachment
- Copies/description of things discloser possesses or controls that he may use unless solely for impeachment. - insurance agreements if insurer might be liable. |
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Expert disclosure
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-ID & report qualifications, opinions, w/ basis for opinions.
- Due 90 days before trial. |
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Pretrial disclosures
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- Due 30 days before trial
- Witnesses expect to call at trial - W's depo whose testimony will be presented - List of docs/exhibits expects to offer - Must object to depos, docs & exhibits now, otherwise waived, except 402/403 exceptions. |
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General scope of discovery
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- May discovery any non-privileged relevant matter.
- As long as info sought r/ably calculated to lead to discovery of admissible evidence, info itself not req'd to be admissible. |
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CA distinctions on scope of discovery
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Info sought relevant to case'[s subject matter, and can assert right of privacy
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Atty work product
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- Fed work product discoverable only if show substantial need.
- CA has absolute work product privilege to writings reflecting an atty's impressions, conlcusions, opinions, or research. - Not discoverable except on showing that denial will unfairly prejudice party or will result in injustice. |
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Expert disclosure
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- May depose.
- if only consulted, may be discoverable in fed ct if impracticable to obtain by other means. - In CA, no rq. of disclosure of consultants. |
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Protective orders
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OK to protect from annoyance, embarrassment, or undue burden, or expense.
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Invocation of privilege
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Must describe document so OPY can determine if privilege applies.
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Supplementation of disclosures & discovery responses
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- Fed - duty to supp if new or incomplete info learned.
- CA no duty to supplement. |
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Use of depo at trial/hearing
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subject to evidence rules. May be used to impeach, or if deponent unavailable (dead or more than 100 mi. fed, 150 mi, state)
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Motion to Compel and sanctions
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If party fails to comply w/discovery, court may:
- order matters treated as admitted - ban party from supporting/opposing claims or defenses - strike pleadings, stay or dismiss case, render default judgment - Hold party/witness in contempt. |
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Fed. Discovery Sanctions
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- Immediate sanction if fail to attend own depo, answer interrogatories, disclose info, or supplement/ amend discovery w/o substantial justification.
- Party who fails to make req'd disclosures not permitted to use infor w/held as evidence unless harmless failure. - Court may also assess r/able expenses incurred. |
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CA discovery sanctions
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Failure to responde, disobeying orrder, unmeritorious objection
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Rule 26(f) conference
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Required to submit discovery plan to court. NOT required in CA.
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Federal case management
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- Scheduling conference with scheduling order.
- Final pretrial conference to formulate trial plan. - Can modify order only to prevent manifest injustice. |
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CA Case Management
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- First CMC w/in 180 days of filing.
- Fast track assigns unlimited cases to disposition goal w/in 24 mos. - There's an obligation to actively manae. |
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Types of ADR
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- Contractual arbitration
- Judicial arb - Mediation |
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Contractual Arbitration
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Valid unless ground for K revocation.
After arbitrator renders award, party can court confirm or vacate. If award confirmed, considered final, binding, and enforceable. |
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Judicial review of contractual arb
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- vacate award if fraud, partiality, not following K
- Fed allows vacate when complaining party shows arbitrator knew applicable law but chose to disregard it. - CA will not apply that test, and award not reviewed for errors of law/fact, even if errors on face of award and cause substantial injustice. |
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Judicial Arbitration
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- Neutral 3P conducts under auspices of the court
- Fed = voluntary - CA - may require if $50K or less or parties can stipulate. - Equity actions exempt from arb. - w/in 30 days of award parties may request trial de novo. |
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Mediation
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- 3P neutral helps parties reach mutually acceptable agreement.
- Conducted in confidentiality. |
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Jury Trial - Fed
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- May not make preemptory challenge based on race or gender.
- Must request, otherwise waived. - Legal claim tried first by jury, then by equitable judge. - Diversity cases get jury trial even if state would deny it. |
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Jury Trials CA
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- May not make preemptory challenge based on race, gender, sexual orientation, religion, political views.
- If distinct legal & equitable issues, equitable first. - No jury if legal incidental to equitable. - Must request jury, otherwise waive right. - Must deposit jury fees & expenses when request. |
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Involuntary dismissal
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- FED - on D's motion if P fails to prosecute or comply w/rules/ct order
- CA - On motion or sua sponte for failure to serve complaint on time or bring matter to trial. |
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Voluntary dismissal by P
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FED - w/o prejudice as matter of right if before D files answer or MSJ or by stip of all parties. Otherwise, need leave of court.
- CA - w/o prejudice if before dispositive ruling or start of trial. After start of trial, P may dismiss only w/prejudice, unless parties agree or court orders based on good cause. |
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Judgment as a matter of law (Directed verdict, non-suits)
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JML/DV allows grant of judgment if evidence is such that RPs could not disagree when viewed in light most favorable to non-moving party.
- Prerequisite for making renewed motion for JML. |
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CA JML/DV
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D may also bring motion for non-suit based on DV standard after Ps presentation of evidence or opening statement.
\- Any party may move for DV after all evidence presented in trial |
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Renewed motion for judgment as matter of law (JNOV)
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-Filed no later than 10 days after entry of judgment.
- Motion for JML must have been made during federal trial - CA has no such req. |
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Motion for new trial
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Filed no later than 10 days after judgment entered (fed) or 15 days after notice of entry of judgment (CA). Must file on time, or court has no jx.
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Ground for motion for new trial.
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- Misconduct by judge, OPY, or jury
- New evidence could not be discovered by r/able diligence. - Unfair accident/surprise during trial - excessive or inadequate damages - insufficient evidence - verdict is against the law - error in law during trial. |
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Remittur & additur (instead of granting new trial, ct offers)
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- Fed & CA: P must accept less than verdict or new trial.
- CA only - D must agree to pay more than verdict or new trial. |
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Effect of failure to move for new trial or renewed JML
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Precludedfrom raising question of evidentiary sufficiency on appeal.
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Summary Judgment
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Grant if no issue of material fact and movant entitled to JML.
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Timng for MSJ
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Fed- D anytime, P 20 days after complaint or after Ds MSJ
CA: 60 days since OPY's general appearance. |
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Can you appeal a denial of an MSJ?
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NO. But in CA you can get a writ of mandamus review.
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Attack on Judgment at Trial Court Level
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1. Relief from judgment or order.
2. Independent action in equity to set aside judgment. 3. Final judgment & appellate review. |
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Relief from judgment or order - FED
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1 - To fix clerical error.
2 - Mistake, inadvertence, surprise, or excusable neglect. 3 - Newly discovered evidence. (1-3 w/in 1 yr) 4 - Fraud, misrpe, or other misconduct of OPY. 5. Judgment is void. 6. Judgment is satisfied, prior judgment on which based vacated, no longer equitable that judgment should have prospective application 7. Any other reason justifying relief (4-7 within r/able time) |
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CA grounds for relief from judgment or order
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1. Mistake, inadvertence, surprise, or excusable neglect, judgment is void
2. Move w/in r/able time not to exceed 6 mo. 3. Must set aside when application accompanied by affidavit of atty attesting to his mistake, inadvertence, surprise, or neglect. |
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Independent action in equity to set aside judgment
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- Court in its discretion may relieve party from judgement/order or grant relief to D not notified of action or set aside judgment for fraud on court.
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Rqts for Ind. Axn in equity to set aside jment
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1. Must show likely to win if new action allowed.
2. No specific time limits, just must act once know of ground for relief. 3. Independent action rejected if motion to set aside judgment rejected on merits. |
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Final judgment - relief that may be given
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Unless default case, court may give any appropriate relief.
CA limited jx courts are limited in amount and declaratory relief. |
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Judgment on multiple claims or parties
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- Final judgment on less than all of the claims/parties ONLY upon:
1. Express determination there is no just reason for delay AND 2. Express direction for entry of judgment. CA - if judgment against one of several parties leaves no further issue for resolution as to that party it is final and immediate, appealable. No appeal can be taken from judgment on fewer than all COAs. |
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Time for Appeals
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FED - w/in 30 days of entry of judgment or after decision on post-trial motion.
CA - w/in 60 days after service of notice of entry of judgment or 180 after entry if no notice served. |
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Reviewable Orders and Judgments
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- Final and certain interlocutory
- Interlocutory orders as of right - Collateral order rule - Certification of class action |
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Interlocutory orders as of right - FED
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Injunctions, appointments of receivers, certain admiralty, patent infringement, and property possession cases.
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Interlocutory orders as of right - CA
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May appeal order made after appealable judgment, order granting motion to squash service of summons or granting motion basede on forum non conveniens, order granting new trial or denying motion for JNOV, order granting/dissoving injunction and interlocutory judgment/order directing payment of monetary sanctions over $5000.
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Interlocutory Appeals Act allows discretionary review when:
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- Trial judge certifies interlocutory order involves controlling question of law, as to which there is substantial ground for difference of opinon, and immediate appeal from order may matyerially advance ultimate termination of the litigation AND
- Court of appeals agrees to allow appeal. |
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Collateral Order Rule
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Fed - claim/issue separable & collateral to main suit, and too important to require deferring appellate review IS appealable.
CA - Can immediately appeal order denying cert of entire class. |
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Certification of class Action Appeals
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Fed - reviewable at court's discretion w/in 10 days of order
CA - can immediately appeal order denying cert of entire class. |
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Orders made non-appealable by writ
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Exceptional cases get around final judgment rule via writ of mandamus or prohibition.
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Enforceability and stays pending appeal
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Judgments are enforceable while post-trial motions pending.
FED - Stay when appealed IF bond posted unless judgment for injunction or receivership. CA - Auto stay w/ timely filing of notice of appeal. Judgments for $$, sale of property, appointment of receiver stayed only if trial court orders or if an undertaking is provided. CA appellate courts may also stay. |
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Jx of CA supreme court
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Original jx in claims for extraordinary relief by mandamus, certiorari, prohibition and habeus.
Appellate jx over CA court of appeals decisions. ---- discretionary if on petition ---- can also grant on its own mtion |
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What do you need to prove res judicata?
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Must show:
- earlier judgment valid, final, and on merits. - cases brought by same claimant against same D. - COA directly litigated./could have been litigated in prior |
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When are judgments final?
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Fed- when rendered
CA - not until conculsion of all possible appeals. |
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COA for res judicata
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Fed - arising out of same T/O
CA- primary right doctrine |
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Collateral estoppel
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Judgment for P or D is conclusive in subsequent action on a different COA btw them as to issues actually litigated and essential to judgment in first action.
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Who is bound by judgment?
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- Parties, privies to parties, and persons whose interests are represented are bound.
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5 tests to determine if person can rely on prior judgment
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1.Was issue decided in first case identical to that in the second? Issue must have been essential to decision in first.
2. Was there final judgment on the merits? 3. Did party against whopm judmgent is to be used have fair opportunity to be heard on critical issues? 4. Was party against whom collateral estoppel is being asserted a party or in privity with a party to prior proceeding? 5. Is posture of the case such that it would not be unfair or inequitable to apply collateral estoppel? IF YES TO ALL, COLLATERALLY ESTOPPED> |
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