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158 Cards in this Set
- Front
- Back
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Personal Jurisdiction (two step analysis) |
1) Satisfy a State Constitution 2) Satisfy the Constitution (Due Process) |
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Personal Jurisdiction (standard) |
Minimum Contacts, with Forum, do not offend traditional notions of fair play and substantial justice |
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Personal Jurisdiction (Minimum Cases - the Obvious Cases) |
1) Domiciled in the Forum 2) Consents Or 3) is Voluntary presenet, in the forum when served with process |
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Personal Jurisdiction (Contact) |
Contact must result from purposeful availment - (D's Voluntary Act) Must be foreseeable that Defendant could get sued in that forum D must reach out to the forum; don't need to set foor in the forum to purposefully avail |
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Personal Jurisdiction (Relatedness) |
Does Plaintiffs claim arise from Defendants contact from the forum? If yes--->PJ even if not much contact with forum (specific PJ) |
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Specific PJ versus General PJ |
Specific PJ - P's claim arose closely from D's contact with Forum General PJ - at home in the form Home = Where Domiciled |
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Corporation at Home (General PJ) |
1) Where Incorporated 2) Principal Place of Business |
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Personal Jurisdiction (Fairness)** |
For Specific PJ only, Fairness Factors: 1) Burden on D and witnesses (not guaranteed to be most convenient) -- relative wealth of parties NOT determinative 2) State's interest -- --always weighed if Plaintiff is a citizen of the forum - state wants to provide home for citizens, if being harmed by out of staters |
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Summary of Const. Test for PJ** |
Contact - Purposeful Availment - Foreseeability Relatedness - General versus Specific Fairness (Specific Only) -Burden/Convenience -State's Interest -Plaintiff's Interest |
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In Rem and Quasi in Rem Jurisdiction |
Power over D's property in forum - D's contacts still must meet PJ |
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Subject Matter Jurisdiction (SMJ)*** (defined) |
Court's power over the case; (PJ is over person) State courts have general SMJ; Feds not |
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Subject Matter Jurisdiction (Fed Requirements) |
1) Complete Diversity of Citizenship 2) Federal Question |
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SMJ (Diversity of Citizenship) |
1) Citizens of Different States (or Country) AND 2) Amount in Controversy exceeds $75,000 |
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SMJ (Complete Diversity)* |
No good if any P citizen of same state as any D |
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SMJ (Alienage) |
P (Spain) sues D (Ny) in Fed court - cool P (permanent green card alien in AZ) sues D Citizen in AZ, NO SMJ, by statute P (US Citizen domiciled Japan) sues D (CA) in fed court - no alienage, no diversity, not citizen of any state, so no diversity |
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Establishing Domicile? |
1) Physical Presence there AND 2) Intent to make that your permanent home - intent = job, buying house, joining orgs * Domicile determined when case filed -DC treated as a state |
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Citizenship of Corporation for SMJ* |
1) Every state or county where incorporated AND 2) Principal Place of Business --PPB = nerve center, main officers directors control operations Corps can have 2/+ state citizenships |
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Citizenship of Unincorporated Associations (LLC, LLP, Partnership) |
Citizenship of all of its members ex: XYZ partnership, citizens 18 states, XYZ all 18 states - include GPs and LPs for LLC |
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Citizenship of Minors, Decedent or Incompetent |
Use Citizenship of Minor, Decedent or Incompetent NOT the executor, that is irrelevant |
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Amount in Controversy |
Must exceed $75,000 -75,000 does NOT count -whatever P claims in good faith OK, unless clear certainty can't recover more than 75k what ultimately wins NOT relevant, it is what pleads |
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Amount in Controversy (Aggregation) |
Can aggregate claims if 1P against 1D - can be factually unrelated; and can aggregate unlimited amount of claims Ex: P sues D for $40,000 breach and $50k for tort, so $90k total - this counts cool |
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Amount in Controversy (Joint Claims) |
Can not invoke Diversity if only can get over $75k by combining P1 and P2 CAN invoke diversity if joint tortfeasors, P sues X, Y, and Z adds up to $75,001 |
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Amount in Controversy (Injunctions) |
If meet either of 2 theories, amount in controversy met: 1) P viewpoint: does blocked view decrease value of P's prop more than 75k 2) D's viewpoint, would it cost D more than $75k to comply with injunction |
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Exclusions in Federal Court |
Federal Court, even if meet requirements WILL NOT hear cases on: 1. Divorce 2. Alimony 3. Probate 4. Child Custody Will hear other family law cases like abuse, just not above 4 |
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Federal Question Cases (Citizenship and Amount in Controversy) |
Neither are relevant - don't' need diversity or exceed $75k amount in controversy |
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Federal Question (well pleaded complaint) |
P's claim must arise under federal law - Ask is plaintiff enforcing a federal right ? - if yes -->FQ -ex: P's civil rights violated under Fed employment law--> FQ -if no-->can't go to under FQ ex: Stone sues Epstein for failing to build a home, he says EPA says can't build there, she says law doesn't apply --> NO FQ, because law deprives her of a right, not enforcing right |
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SMJ and Additional Claims |
Each Additional Claim must have SMJ UNLESS Satisfied Supplemental Jurisdiction |
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Supplemental Jurisdiction (Test) |
Case is already there with proper SMJ; Test 1) Common Nucleus of Operative Facts - satisfied if same Transaction/Occurrence (T/O) 2) Limitation - Claims Cannot invoke supplemental juris even if meet test; in diversity cases by plaintiff |
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Supplemental Jurisdiction (Test - Limitation) |
In a diversity case, claims by P can't invoke supplemental jurisdiction -doesn't apply to FQ -exception to limit: P1/P2 (VA) sue D(PA) diversity case; P1 $100k claim; P2 $50k claim, can come in bc SCOTUS says so |
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Supplemental Jurisdiction (Mandatory?) |
Discretionary by the court, never has to take - can deny if underlying acse dismissed early in case OR -state law more complex |
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Removal **(Defined) |
Defendant sued in state court, removes to a federal trial court |
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Removal (Timing) |
D must remove within 30 days of service |
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Removal (Rules) |
D can remove a case that meets requirement for diversity/FQ (exceptons next card) All Defendants (Who were served process) must join int he removal Plaintiffs can never remove Can only remove where state and fed distirct overap ex: can't remove from San Diego to SF |
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Removal Exceptions to Removal Rules |
If a Diversity Action, then: 1) No removal if any D is a citizen of the forum state (instate rule) AND 2) No removal more than 1 year after case was filed in state court |
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Removal (Mechanics) |
D simply "does it"- no permission needed- states grounds for removal, states why SMJ |
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Remand (mechanics) |
P has 30 days to make a motion to remand -arguing that improperly in federal court P can make motion improper SMJ at anytime |
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Choice of Law --Erie Doctrine - Steps |
1)* Is there some Federal Law (or FRCP) on point, directly conflicting with state law? --yes-->apply federal law (supremacy) --no-->Step 2 2) No fed law on point, Apply State Law, if issue determined to be substantive, 4 substantive state laws (apply state law) --1) conflict (or choice) of law rules ** - -2) elements of a claim or defense --3) state statute of limitations --4) rules for tolling statutes of limitations 3) If no fed law on point, and not substantive issue, must determine whether "substantive" - factors weighed: outcome determinative, balance of interests, avoid forum shopping |
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Federal Common Law |
Erie means NO General federal common law, so contracts, torts, property is state law - fed courts must apply state substantive law in diversity But areas fed courts can make up federal common law - fill in the gaps, international relations, admiralty, disputes between states |
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Venue - (basic idea) * |
Exactly Which Federal Court is proper |
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Venue (Plaintiffs Choices) |
May choose any district where: 1) all D's reside OR -- if D's in same state, venue proper where an of them reside ** --ex: Newton (D. NV) sues D1 (ND CA) and D2 (ED Cal) - can sue in either ED CA or ND CA 2) a substantial part of claim arose doesn't matter where plaintiff resides same rules apply diversity or FQ |
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Venue (where reside people and corporations) |
People reside where domiciled Corporations reside where PJ |
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Transfer of Venue **(procedure and rules) |
Fed Court (Transferor) transfers venue to another federal court (transferee) can only transfer to court which had proper PJ and Venue -- D can't waive unilaterally to improper venue; can if both parties agree |
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Factors Deciding If Will Transfer |
Public: what law applies, what community should be burdened with jury service, desire to keep local controversy in local court Private*: convenience, where evidence and witnesses are |
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Forum Selection Clause |
Parties Can contract for a specific forum, than venue rules don't apply |
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Improper Venue (Remedy) |
Can transfer in interest of Justice OR Dismiss the Case |
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Forum Non Conveniens (Rule and rationale) |
Court chooses to dismiss or stay (hold in abeyance) the case Dismiss/Stay case, because more convenient court is different judicial system - based on public/private factors, requires strong showing (what community should be burdened, where evidence is) -other court must be available/adequate
FNC dismissal won't happen if P from forum state |
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Service of Process (general idea) |
entitled to info that being sued, must be served with: 1) summons (formal court notice) + 2) copy of complaint = process Summons + Complaint = process |
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Who Can Serve Process |
Anyone over 18 years |
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How is Process Served? (Methods) |
1) Personal service - anywhere 2) Substituted Service - if: -- D usual abode and --serves someone of suitable age/discretion --who resides there (no relaton req.) 3) Served on D's agent (registered agent, managing agent) 4) methods permitted by state law |
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Waiver by Mail (Process) |
1) Mail D copy of complaint and two copies of waiver form, w prepaid means of returning form 2) If D executes/mails waiver form, within 30 days, waives service of process D earns 60 days (as opposed to 21 under service) if waive |
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Waiver by Mail (Failure to Waive) |
If D fails to return waiver form, P then must serve D D must pay costs of service |
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Return of Service |
Person filing service, file report with court showing how service was made, If don't file harder to prove service was made |
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Service of Other Documents |
Other documents mail to opposing parties lawyer - can mail, email (if party agrees) If mail interrogatories get 30 days + 3 days, because of mail |
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Complaint (Requirements) |
Commences an Action Requirements: 1) Statement of grounds of SMJ 2) Shot/Plain Statement of claim, showing entitled to relief 3) Demand for relief sought (damages, inj) does not need to allege PJ/Venue |
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Complaint (What must be in there - standard) |
Plead facts supporting a plausible claim -Iqbal/Twombly -Judge uses experience to determine plausibility |
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Complaints in Need of Special Particularity |
1) Fraud 2) Mistake 3) Special Damages Must give more details |
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Defendant's Response |
Required to either respond by: 1) motion 2) by answer D must do within 21 days after service of process If waived service get 60 days |
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Rule 12 (b) defenses *** |
1) lack of SMJ (never waived) 2) lack of PJ 3) improper venue 4) improper process (problem with papers0 5) improper service of process 6) Failure to state a claim 7) failure to join indispensable party |
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Motions D can file after compalint besides 12(b) |
1) motion for more definite statement (rare) 2) motion to strike, removes immaterial or scandalous stuff |
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Rule 12(b) waivable defenses |
12(b) are waivable, must assert in 1st motion or in answer 2) lack of PJ 3) improper venue 4) improper process (problem with papers 5) improper service of process |
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Defendant, The Answer(Requirements) |
Must respond to allegations in complaint, by 1) Admit 2) Deny (must deny or may fry) 3) State you lack sufficient info to admit/deny -- have a duty to investigate things in your control |
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Defendant - Affirmative Defense |
Raise affirmative defenses in the answer, new facts, must plead it; |
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Counterclaims (Kinds and Definitions)** |
A claim against an opposing party, once somebody asserts a claim against you, you are opposing parties. Counterclaim is part of D's answer 1) Compulsory and 2) Permissive * must assess whether claim has proper SMJ |
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Counterclaim (Compulsory)* |
Only compulsory claim** - no other claim is compulsory arises from same T/O as P's claim - unless you have already filed the case, your claim is waived not required to file if get case dismissed |
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Permissive Counterclaim |
Not compelled to file it does not arise from same T/O as P's claim, you may sue in separate case |
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Crossclaim |
Claim against a co-party, must arise same T/O as underlying action Not Compulsory, could sue separately Need SMJ on the cross claim |
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Filing a cross claim against someone filed cross claim against you |
Is a counter claim ex: Draper and Sterling both P's - Sterling cross claims Draper; if Draper sues sterling it is a counter claim once sued become opposing party --> becomes crossclaim |
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Additional Claims |
Can add as many claims as you want, once counterclaim or cross claim, does not have to relate --- needs SMJ still |
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Amended Pleadings |
Plaintiff has right to amend once within 21 days after D serves first Rule 12 response D has right to amend once within 21 days after serving his answer |
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Right To Amend? After 21 days |
No right to amend - seek leave of court to amend "if justice so requires - look at 1) delay 2) prejudice 3) futility of amendment |
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Variance |
Where evidence at trial, does not match what was pleaded - amend to match pleading But if D/P objects can not vary pleading --Evidence inadmissible |
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Amendment After Statute of Limitations has Run (Relation Back) |
Amended pleadings can relate back if they concern same conduct, transaction, or occurrence as original pleading - treat amended pleading as though filed, when original was filed, avoids SOL problem ex: P files complaint, process served July 1, SOL runs July 10; August P seeks leave to amend,to add new claim, if granted right to amend then , will be filed as if July 1 pleading |
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Change Defendant after Statute Has Run |
This will relate back if: 1) it concerns same T/O 2) New party knew of this case, within 90 days of filing 3) also knew that but for mistake, would have been named originally |
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Supplemental Pleadings |
Set forth things happened after pleading file always discretionary whether add pleading or not |
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Rule 11** |
Applies to all documents except discovery; Lawyer/Pro se signs documents, certifies that to best of her knowledge & after reasonable inquiry: 1) Paper is not for an improper purpose and 2) Legal contentions are warranted by law (or non-frivlous argument for law change) 3) Factual contentions and denials of factual contentions have evidentiary support every time present in court, continue cert. |
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Rule 11 Sanctions |
Can be ordered against attorney/firm Purpose is to deter not punish *can not make motion for sanctions immediately - serve motion on other parties, but can't file it -- party in violation has safe harbor for 21 days Court can raise sua sponte |
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Discovery -Required Disclosures |
Must produce, even though no one asks for it 1) Initial Disclosures (witnesses, things, computation, insurance) 2) Expert Witnesses (identity and Report) 3) pretrial req. disclosure: (trial evidence) |
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Initial Disclosures (what disclosed) |
1) Initial Disclosures: must provide, within 14 days of Rule 26(f) conference, unless court order/stipulation, must disclose -a) Identities of persons support your claims or defenses (if dont cant use at trial) -b) Documents things support claims defenses (include photos, and electronic stuff) -c)Computation what asking for monetary relief d) insurance coverage: d must disclose any insurance that might cover judgment |
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Expert Witnesses |
Must identify expert witnesses who may be used at trial AND written report Don't have to disclose "consulting expert," if don't intend to use for trial EW can't be part of the case |
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Pretrial required disclosure |
No later than 30 days before trial must, give: 1) identity of witnesses testifying or by depot 2) documents/esi/things to be introduced |
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Discovery Tools |
1) Depositions - Live testimony 2) Interrogatories 3) Requests to produce 4) medical exam 5) Request for Admission |
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Depositions |
Live testimony, under oath, testify from present recollection, no homework required can serve party + non-party *to depose engineer defective car, but don't know who design, can serve opponent w notice of depot+ describe matters of examination - then that party must find that party Limit: can't take more than 10 depos, or depose same person twice, w/out court approval |
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Use of Depositions At Trial |
1) Impeach the deponent (always) 2) Any purpose if deponent is an adverse party 3) any purpose if there is deponent is unavaible for trial (unless made that person unavailable) |
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Interrogatories |
Written Questions, under oath to parties only -has 30 days from service - must answer with info reasonably available to you; must do homework |
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Requests to Produce |
Requests that someone make available for review copying documents, including ESI Must respond in writing within 30 days of service, stating material will be produced parties only; but can get info from non-parties through subpoena |
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Medical Exam (physical or mental) |
Must get court order to force medical exam of a party only (if thing bus dirver negligent but sue bus company, can't get medical exam of driver, make him a party) Party seeking order chooses physician Can request copy of report, BUT then waive privilege to prior medical info |
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Request for Admission |
Written Request that parties admit things - parties only If D fails to deny specifically within 30 days, deemed to admit it |
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Discovery Rule 11 Equivalent |
All discovery parties sign certifying that 1) it is warranted 2) it is not interposed for improper purpose 3) it is not unduly burdensome |
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Scope of Discovery (Standard) |
Standard - Anything relevant (broader than admissible) to claim or defense, proportional to needs of case *example: discoverable even if is hearsay in court, provided it reasonably would lead to admissible evidence |
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Disclosure Harmful Info* |
Something harmful doesn't have to be disclosed, in required disclosures. Is discoverable in the regular discovery tools |
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Privilege |
Can object to discovery, based on evidentiary privilege -- ex: confidential communications between attorney client |
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Work Product* |
Trial preparation materials - material prepared in anticipation of litigation Doesn't have to be prepared by a lawyer; counts if prepared by party or any rep of party |
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Qualified Work Product and Absolute Work Product |
Qualified work product, discoverable even though work product, if: 1) substantial need 2) not otherwise available Absolute Work Product, Protected, Opinion Work Product -1) mental impressions -2) opinions 3) conclusions 4) legal theories |
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Identities of People Found through investigation |
Is Discoverable - no matter how much spent on it |
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Assertion of Work product or privilege |
Must claim protection expressly and describe the materials in detail (called a privilege log) |
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Enforcement of Discovery Rules |
1) protective order - embarrassing 2) Partial response to discovery Request 3) No Response to Discovery request |
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Protective Order |
Responding party thinks discovery, undue burden, embarrassment, undue burden or expense, Must "meet and confer" without court involvement If do that, court can 1) deny discovery 2) limit it 3) permit it on certain terms |
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partial Response to discovery request |
Responding party answers some questions, but objects to others Requesting party can make motion to compel, court will decide whether objections legitimate |
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No Response to Discovery Request |
Sanctions, responding party doesn't attend depot, or respond to interrogatories |
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Sanctions |
Must certify that tried in good faith to get other side to answer, if Partial response: 1) move order compelling answer unanswered 2) if party violates order, "merits sanctions" plus costs and attorneys fees - held in contempt No Response - merits sanctions plus costs , no need for motion to compel |
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Disciplinary Measures Available to Judge |
Merits Sanctions - Establishment order, strike pleadings of disobedient party - disallow evidence from disobedient party (as to issues of discovery) -dismiss plaintiffs case (if bad faith) -default judgment against defendant (bad faith) |
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Co-Plaintiffs and Co-Defendants |
1) Can sue together if arise from same T/O 2) And raise at least 1 common question |
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Neccessary and Indispensable parties |
Court may force nonparty in to join case; if nonparty is neccessary/required
Neccessary party is (meets any of tests) 1) W/out can't give total relief existing parties 2) Absentee's interest may be harmed if not joined (most common) 3) Claims an interest that subjects a party (usually D) to a risk of multiple obligations ex: Rich claims bought stock jointly with me, ABC Corp to have stock reissued jointly with him, I would be harmed if not part of the suit |
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Joint-tortfeasores |
Never neccessary |
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Joining Party (Process) |
1) Is party neccessary? Yes--> 2) Can absentee be joined? Is it feasible --feasible if a) PJ over A b) doesn't mess up diveristy 3) if can't be joined - 1) proceed without absentee - 2) dismiss whole case --- dismiss if absentee indispensable |
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C= Existing Parties I = New Party |
C = counter claim, cross claim, I = indispensable party, intervening party, impleader |
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Impleader** |
Third party is bringing in someone new; new party is third party defendant (TPD) D can do it if trying to get TPD to pay part of his own liability - for indemnity and contribution NOT deflecting ex: P hurt in bar fight, P sues patron, says patron beat hm up, but he said it was bouncer; patron can't implead bouncer, because deflecting liability ex2: P hires D fix house, hires sub, sub damages house, P sues D, D can implead the sub, trying to indemnify him |
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Steps for Impleading |
1) D files 3rd party complaint, naming TPD 2) Serve process on the TPD right to implead within 14 days of serving answer; after need court permission |
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Impleading and SMJ |
Must assess SMJ for impleading 1) diversity or FQ P is not a party to the impleading ex: P(MO) sues D(KN) in fed court for $100k, D impleads TPD (MO) - there is diversity between D and TPD so it is fine (P not a party) |
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Intervention |
Non-party brings self into case (need SMJ) Intervention right if: 1) absentee's interest may be harmed 2) Interest not adequately represented now Permissive intervention, if: A's claim/defense at least one common question; usually ok unless cause/delay prejudice |
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Class Action* Initial Requirements |
Need all four for a class Numerosity - too many members for joinder Commonality - some issue in common to all class members Typicality -Rep's claims typical those of class Representative Adequate: Class representative will fairly adequately represent class |
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Class Action (Three Types) |
Type 1) Prejudice - class treatment necc. to avoid harm (prejudice), either to class or non-class Type 2) Class seeks injunction or declaratory judgement because D treated class members alike (ex: employment discrimination) Type 3**) Damages 1) common question predominates over individual questions and 2) class action superior method to handle the dispute (ex: mass tort)
Plaintiff chooses |
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Certification of Class |
Must list in complaint that applying for a class, but court must 1) certify it and 2) define the class and 3) appoint class counsel |
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Type 3 Class Notificaiton |
Court must notify all class members in class - individual notice, to all reasonably identifiable members - notice says: a) they can opt out b) they'll be bound if they don't c) they can enter a separate appearance through counsel *only in type 3 |
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Bound by judgement |
All members, except those that opt out of type 3 |
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Notice for Settlement |
Gives notice to class members to get their feedback on whether case should be settled/dismissed decision up to court |
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Class Actions and SMJ |
For Citizenship, use only reps citizenship ignore members of the class Representatives claim must exceed $75,000 |
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TRO |
Ex parte TRO proper only if: 1) - applicant files under oath, TRO will suffer immediate & irreparable harm, if wait for other side 2) Applicant's lawyer, certifies in writing efforts to give notice D's or why such notice shouldn't be given If issue TRO must be given notice , describe in detail what D must do/refrain from -- D can move to dissolve |
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Preliminary Injunction (Factors) |
Burden on Applicant to show: 1) -He is likely to suffer irreprable harm if injunction not issued 2) He likely to win on merits of underlying case 3) Balnce of hardships favors him (issuing injunction better than not) 4) Injunction is in the public interest *discretionary right to injunction |
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Preliminary Injunction and Appeal |
Immediately Appealable |
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Voluntary Dismissal |
So can file again, P right to voluntary dismissal byfiling "notice of dismissal" before D serves answer or w/out prejudice (can only do 1 time) *can't refile the case if dismissed with prejudice |
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Default Judgment |
D does not respond to complaint in time (21 days after service or 60 days from mailing) Default: notation by court clerk on docket sheet on case - Plaintiff must then move for judgment default on day 22; cuts off D's right to respond |
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Clerk versus Court in Default |
Clerk can enter default if: -D made no response at all-Claim itself if for sum certain $ -Claimaint gives affidavit of sum owed -D is not minor or incompetent --if not true, must apply to court itself If judge holds hearing, discretion, notice D only if appeared in case - can only recover what is in claim |
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12(b)(6) Motion *** |
If fails to state a claim-->dismissed Court: ignores P's legal conclusions, only looks at allegations of fact, asking if facts true, would P win a judgement? facts must support a "plausible" claim |
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Motion for Summary Judgement FRCP 56*** |
P stated a claim, in litigation stream, but maybe no need for trial. Party moving for SJ (burden), must show: ** 1) there is no genuine dispute on a material fact 2) entitled to judgement as a matter of law |
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SJ Timing |
No Later than 30 days after close of discovery |
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evidence and SJ |
-views evidence light most favorable 2 --nonmover -evidence is anything under oath -pleadings don't cont (unless verified under oath) - if D didn't deny allegation in pleading, can count -evidence must be first hand, doesn't matter if credible person or not, but can't be hearsay |
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Rule 26(f) Conference) |
21 days before scheduling conference, parties meet/confer - Must present court a detailed discovery plan |
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Pretrial Conferences* |
Court may hold pretrial conferences" to process case and foster settlement Pretrial conference sets out witnesses, evidence everything supersedes pleadings * |
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Suits law and Equity* |
Jury at trial at law; not at equity - if has both, jury decides facts underlyng damages claim, not equity |
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7th Amendment |
Jury trial does not apply to state court must demand jury in writing, no later than 14 days after service of last pleading hard min 6 - max 12; unanimous verdict needed |
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Jury Selection |
No Limit on "For Cause" Strikes of jurors 3 peremptory challenges; must be used in race and gender neutral manner* |
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Jury Instructions |
Parties submit instructions ot judge at close of evidence - can object to instructions before they are used - must do so to raise on appeal (unless plain error effecting substantial rights) |
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Types of Verdicts |
General - just says who wins and relief - Clerk of court enters Special - jury answers specific questions about facts in dispute, judge reaches legal conclusions based on facts General Verdict w Special Interrogatories: Jury gives general verdict, answers specific questions submitted to it, ensuring answer crucial questions No Judgement - if no judgement court can ask to reconsider or order new trial |
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Juror Misconduct * |
verdict won't be set aside if Verdict may be "impeached" based on external matters if jurors bribed or investigated matter on own - Non jurors can give first hand evidence of such things A Juror can't testify things occurring during deliberation - except to show extraneous prejudicial info or outside info - intrinsic matter, juror on drugs, can't testify on - extrinsc they can |
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Bench Trial |
Judge must record separate findings of fact and law
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Motion for Judgement as Matter of Law (JMOL)** |
Based on evidence presented at trial - reasonable people could not disagree about result move for it after other side heard at trial looks at evidence in light most favorable to non moving party (like SJ but at trial) |
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Renewed Motion for Judgement As Matter of Law (RJMOL) ** |
Same as JMOL but after trial after jury verdict -move for it within 28 days of judgment -** must have moved for JMOL at proper time in trial to get RJMOL |
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Motion for New Trial* |
Can order new trial, anything (not harmless error) common ex: 1) new evidence couldn't have gotten before with due diligence 2) inadequate excessive damages *if party didnt move for JMOL at trial, barred for RJMOL, can still move for new trial |
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Remittitur |
Playing Hardball with Plaintiff - Court finds damages figure, "shocks the conscience" give P a choice: take a lesser amount or new trial - must give P choice, court can't just lower |
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Additur |
Playing hardball with D Court finds damages figure, "shocks the conscience" give D a choice: Pay a greater amount or new trial Uncsont federal, ok in states |
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Offer of Judgement |
At least 14 days before trial, D offers to pay $50,000, settle P's claim; P can accept ; if rejects and goes to trial, if P gets less, liable for delta between offer and judgement |
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Motion for Relief From Order of Judgment |
Set aside order of judgement entered, because: - clerical error - mistake, excusable neglect - new evidence that could not have been discovered with due diligence -judgement is void |
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Final Judgement Rule* |
Can Appeal only for final judgements - decided merits of entire case - Question asked, does trial court have anything left to do on merits -file notice of appeal in district court, within 30 days after entry of final judgement |
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Interlocutory appeal* |
Right interlocutory appeal: 1) preliminary injunct., injunction 2) interlocutory appeals act - issues of law 3) collateral order - can hear collateral matter 4) More than one issue - trial judge can certify 1 issue final adjudication 5) class action - can appeal class cert 6) writ of mandamus - appeal original jurisdict |
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Interlocutory Appeals Act |
Interlocutory Appeals Act: appeal of non-final : a) trial judge certifies involves controlling issue of law b) there is substantial ground for diff opinion c) court appeals agrees to hear it |
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Collateral Order Exception |
Collateral Order exception: Appellate court has discretion hear ruling on issue if: a) distinct from merits of case b) involves important legal question c) is essentially unreviewable if parties await final judgement |
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More than one claim and Interlocutory appeal |
More than 1 claim present; district court can direct final judgement on one claim and contirnue to hear others |
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Class Action and Interlocutory |
Appellate Court can review certification of a class |
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Extrordinary Writ |
Writ of mandamus or prohibition - original proceeding in court of appeals |
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Standard of Review (Appellate ) |
Questions of Law: De novo, no deference Jury Instructions language: de novo Questions of Fact, affirm, unless reasonable people couldn't make those findings Discretionary matters: only will see if abused discretion Whether to give a certain instruction is - abuse of discretion No reversal required if error harmless |
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Choice of Law, preclusion law* |
Case 1 and Case 2 different jurisdiction --> Case 2 applies preclusion law of judicial system that decided Case 1 |
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Res Judicata (Claim Preclusion)* |
Only get to sue on a claim once, requirements 1) brought by same claimant against same D 2) Case 1 ended in valid final judgment on merits (is on merits unless: jursidiction, venue, indispensible parties) 3) Case 1 and Case 2 asserted the same claim - Maj (Fed law): claim same T/O - Min. separate claims for prop damage & personal injuries |
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Collateral Estoppel (Issue Preclusion)* |
1) Case 1 ended valid, final judgement on merits 2) Same issue actually litigated and determined in case 1* 3) Issue essential to judgement in Case 1, finding on this issue, basis for judgment 4) Against whom -- must be used against somebody who was party to case 1 or in privity with party (ex: class members) bc Due Process 5) By Whom can it be asserted |
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Nonmutual issue preclusion |
When someone not part of Case 1, called nonmutual issue preclusion |
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Nonmutual defensive issue preclusion |
The one using it was not a party to Case 1 and the Defendant is in Case 2 ex: Brittania and I are in car accident; Celaena sues B, B wins final judgement on merits; then Celaena sues me; I use collateral estoppel ( that is nonmutual deffensie issue preclusion Celaena had right to litigate* Feds say ok |
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Offensive Nonmutual issue preclusion |
Person asserting it is plaintiff
Same facts as Defensive, except I sue Celaena for car damage (offensive nonmutual issue preclusion) -
Feds now allow offensive non-mutual collateral estoppel, if not unfair - Celaena had full/fair opp to litigate case 1 -Celaena had incentive to litigate strongly - you ould not have joined easily in case 1 - no inconisistent findings |
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interpleader |
Plaintiff in possession of property claimed by multiple parties; plaintiff may require multiple defendants to litigate themselves to decide who owns it |
