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214 Cards in this Set
- Front
- Back
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What are the 5 functions of pleadings?
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1) Provide notice of a claim/defense
2) Guide discovery 3) Screen to identify baseless claims 4) Set out each side's view of facts 5) Narrow the issues under dispute |
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What are the three requirements for a complaint under Rule 8(a)?
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1) Jurisdictional statement
2) Short and plain statement of the claim showing pleader entitled to relief (invoke body of law + facts that trigger the body of law) 3) Demand for relief |
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What are two reasons a claim might fail under 8(a)?
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1) Bad drafting - failed to invoke body of law or stated facts ineptly
2) Law does not afford any remedy on the stated facts |
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In response to a claim, D can:
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1) Admit
2) Deny 3) Deny because lacking info; 8(b) 4) Not respond (deemed admitted; 8(d)) 5) Assert affirmative defense; 8(c) 6) Counterclaim/crossclaim 7) File a pre-answer motion/ motion to dismiss |
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What are the three pre-answer motions available for the D
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1) Motion to dismiss; 12(b)
2) Motion for more definite statement; 12(e) 3) Motion to strike; 12(f) |
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According to 12(a) how long does D have to respond to complaint?
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20 days (60 days if waived service)
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What are the 7 available motions to dismiss under Rule 12(b)?
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12(b)(1): lack of subj matter juris
12(b)(2): lack of personal juris 12(b)(3): improper venue 12(b)(4): insufficiency of process 12(b)(5): insufficiency of service of process 12(b)(6): failure to state a claim on which relief can be granted (raised any time, if with evidence treated as SJ) 12(b)(7): failure to join party under Rule 19 |
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After the pleadings are closed, but within time not to delay trial, any pary may move for ___________ 12(c)
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Judgment on the pleadings
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Under 12(d) motions under which subsections of 12 must be heard before trial, unless court orders the hearings deferred until trial?
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12(b): motions to dismiss
12(c): motion for judgment on pleadings |
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What motion would a party use in lieu of 12(e) motion for more definite statement?
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12(b)(6): motion to dismiss for failure to state a claim on which relief can be granted
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Why would a party move to strike under 12(f)?
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If language in pleading is inflammatory, prejudicial, or derogatory.
Ex: calling car "death trap" |
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Under 12(g), if a party makes a motion but omits any defense or objection available at that time, then _____________.
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The party may not make a motion based on the defense or objection it omitted.
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Under 12(h)(1) which 4 motions to dimsiss are disfavored and therefore must be raised in the first response/preanswer motion filed?
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12(b)(2): lack of personal jurisdiction
12(b)(3): improper venue 12(b)(4): insufficiency of process 12(b)(5): insufficiency of service of process |
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Under 12(h)(2) which 3 favored motions to dismiss can be raised in any pleading, motion for judgment on the pleadings, or trial?
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12(b)(6): failure to state a claim on which relief can be granted (treated as SJ when evidence provided)
12(b)(7): failure to join a party indispensable under Rule 19 Objection of failure to state a legal defense to a claim |
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Under 12(h)(3) the court can raise this motion to dismiss at any time - even in appeal.
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12(b)(1): lack of subject matter jurisdiction
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Under 8(c) if D doesn't raise an affirmative defense in his answer, then _____________.
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That defense is considered waived and can't be used.
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Some of the 8(c) affirmative defenses that mus be pled as affirmative defenses are:
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Statute of limitations
Contributory negligence Waiver Statute of frauds Illegality |
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To determine whether a D must set forth a matter as an affirm defenses, look at 8(c), case law, and the following two tests:
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1) Whether D intends to rest its defense on some fact not included in allegations necessary to support P's case
2) Whether such a defense would surprise the P |
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Under 9(b) which two averments must be stated with particularity as to malice, intent, knowledge, and other conditions of mind?
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Fraud or mistake
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Under Rule 15(a), when may a party amend a pleading?
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Once as a matter of right, any time before response is served (or if no repsonse required, w/in 20 days after served)
Or when court gives leave to amend as "justice so requires" |
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Why might a court deny a leave to amend, according to Aquaslide?
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Bad faith/dilatory motive
Prejudice Undue delay |
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If the statute of limitations has run, what requirements must the leave to amend satisfy under 15(c) and 15(a)
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15(c)(2) Amended claim/defense must arise out of the same conduct, transaction, or occurrence as original pleading.
15(a) Amended pleading must not be in bad faith, cause prejudice, or undue delay. |
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If the statute of limitations has run, what requirements must the leave to add a party satisfy under Rules 15(a), 15(c)(2), and 15(c)(3)
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15(a): Not out of bad faith, won't cause prejudice or undue delay
15(c)(2): Arises out of same conduct, transaction, or occurrence as original pleading. 15(c)(3): New party must have received notice of institution of action and not prejudiced in maintaining defense, party should know or shold have known that but for mistake action would have been against them |
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Rule 11 requires that all pleadings have _______________.
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An actual factual legal basis.
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Rule 11(b) states that by presenting a paper to the court, an attorney or party certifies that to the best of their knowledge, info, and belief, what 4 things are true:
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1) Pleading/motion isn't being presented for an improper purpose (such as to harass or delay)
2)The claims, defenses, and legal contentions are warranted by existing law or a nonfrivolous argument. 3) The allegations and other factual contentions have evidentiary support, or are likely to after investigation. 4) The denials of factual contentions are warranted on evidence, or, if identified, are reasonably based on a lack of info or belief. |
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If the court initiates an 11(c) sanction for violation of an 11(b) requirement, the party sanctioned has how much time to correct/withdraw the paper?
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21 days after service of motion of sanctions.
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If a party wishes to impose Rule 11 sanctions upon another, it must first....
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Send the opponent the Rule 11 motion and give them 21 days to correct it before filing the motion for sanction with the court.
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According to 11(d) do Rule 11 sanctions apply to discovery?
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No, because discovery is governed by Rules 26-37.
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The sanctions available under Rule 11 are limited to...
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what is sufficient to deter repetition of such conduct.
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Which 11(b) sanction can the party not be held responsible or be required to pay for?
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11(b)(2): Claims are warranted by existing law or argument is nonfrivolous
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What are the 5 general phases of discovery under Rule 26?
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1) 21 days before scheduling conference - parties have 26(f) planning conference
2) At least 7 days before scheduling conference, at or within 14 days of 26(f) meeting, parties exchange 26(a)(1) initial disclosures. 3) After scheduling conference parties serve interrogatories. 4) Parties set depositions. 5) 30-60 days before close of discovery parties serve admission requests. |
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Under Rule 26(b)(1), to be discoverable information must be:
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Relevant to a claim or defense (or subject matter if judicial permission granted), and not privileged.
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Under rule 26(b)(1) the court may grant even broader discovery of any matter relevant to subject matter if party shows:
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good cause.
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What are the four types of privileges protected under rule 26?
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1) Doctor-patient
2) Attorney-client 3) Spousal 4) Fifth Amendment |
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Under 26(b)(5) in order to assert a privilege in protection of a document, the party must:
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1) expressly claim the privilege
2) describe the nature of the document/communication so the other party may assess applicability of privilege |
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26(a)(1) requires parties to disclose what 4 kinds of information in initial disclosures?
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1) Names/contact info of witnesses it may use to support claims/defenses
2) Descriptions of docs it may use to support claims/defenses 3) Calculation of damages sought 4) Copies of relevant insurance policies |
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Under 26(e) initial disclosures must be _______________ if necessary
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supplemented and corrected.
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When may parties request additional information, such as interrogatories and depositions?
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After initial disclosures.
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Under Rule 33, who can be sent interrogatories?
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Parties only.
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Under Rule 33 what is the limit on interrogatories.
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25 without leave of court or written stipluation.
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What is an advantage of an interrogatory?
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It's cheaper.
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What are two disadvantages of interrogatories?
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Questioner can't follow up on evasive answers.
Opposing attorney answers the questions and the party just signs off. |
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Under rule 28(a), who can take a deposition?
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Officer of the court or person approved by the court.
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Under rule 28(c) who can not take a deposition?
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relatives, employees, attornies, counsels of a party or a person who is financially interested in the action.
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Who can be issued an oral deposition under 30(a)(1)?
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parties and nonparties
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What is the limit of oral depositions under rule 30(a)(2)?
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10, without leave of court or written stipulation.
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What is the time limit for each deposition under rule 30(d)(2)?
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One day of no more than 7 hours, without leave of court or written stipulation
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When may a person be orally deposed more than once according to rule 30(a)(2)?
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with the permission of the court or opponent
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What is one advantage and disadvantage of oral depositions?
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Adv - lawyer can ask many questions that force witness to answer and can follow up.
Disadv. - More expensive, time limits |
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It is most useful to file a 30(b)(6) deposition to find the person most knowledgeable about a topic when:
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you may not know who is best to depose.
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Under 30(d)(1) a witness can only be instructed not to answer and oral deposition when:
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1) It's necessary to preserve privilege
2) to enforce a limitation direct by court 3) To present a motion under 30(d)(4) when depos being conducted in bad faith or in manner which unreasonably annoys, embarrasses, or oppresses person deposed. |
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Under 30(d)(4) a party may instruct witness not to answer in an oral deposition if depos is being conducted:
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1) in bad faith, or
2) in such a manner as to unreasonably annoy, embarrass, or oppress the deponent or party |
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What is the procedure for a rule 31 written deposition?
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Attorney writes down questions and sends them to the court reporter presiding at depos, who asks questions and records witness's answers.
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Under 30(d)(1) what are the 3 requirements of objections in depositions?
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They should be:
1)concise 2) non-argumentative, and 3) non-suggestive |
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At trial, under rule 32(a)(1) depositions can be used to:
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contradict or impeach a witness.
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Under 32(a)(3), depositions of witnesses may be used by any party for any purpose at trial if:
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The witness is unavailable for some reason (dead, far away, ill, etc.)
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Under 45(a)(1)(C) how may a non-party be compelled to produce documents?
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specifically, through a subpeona.
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What is the limit of discoverable documents?
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There is no limit, a party may discover any number of documents
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What is one disadvantage to document requests?
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The volume of documents produced can be overwhelming.
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Typically, under 34(a), to whom may a party submit doc requests?
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Only the other party.
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Under 34(a) a party may request permission to enter _____________________ in order to inspect, etc.
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designated land or other property possessed or controlled by the other party.
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Under what circumstances in 35(a) may a party be required by the court to submit to a physical or mental examination?
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If the physical/mental condition of the party is in controversy.
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To whom does the rule 35(a) physical/mental exam requirement apply?
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Only parties or people in custody/control of a party.
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Under 35(a) the court will only order exam of party if moving party shows:
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good cause.
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Under 36(a) a party may serve a written request of admission of the truth of matters set forth in the request that relate to:
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statements or opinions of fact or the application of law to fact, including the genuineness of any docs described in the request.
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Under 36(a) if a partiy fails to object/answer to an admission request within 30 days after service, then:
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Everything is considered admitted.
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Under 36(a) a party may only answer to admission request by saying it lacks info/knowledge to admit/deny if:
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after a reasonable inquiry the info available is insufficient to enable them to admit/deny.
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Under 36(b) can admissions be used in later suits?
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No, only in the current suit.
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Under 37(a) what must a party prove to the judge to make a valid motion to compel disclosure or discovery?
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1) Party tried to meet and confer with other party to get info.
2) The disclosure, answer or response was evasive or incomplete. |
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If a judge grants a 37(a) motion to compel disclosure, what may he impose?
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1) A more complete diclosure
2) Expenses/fees incurred in making the motion |
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What is the prerequisite for 37(b)sanctions for failure to comply with order to compel?
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An order to provide or permit discovery must have already been made before sanctions applied.
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Under 37(c), if a party fails to disclose or makes a false/misleading disclosure, the party who did not disclose...
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is not permitted to use the undisclosed info at trial, and may also incur sanctions.
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Under 37(c), if party fails to admit genuineness of doc or truth of any matter, the court may....
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impose any expenses or fees that the other party incurred in proving the veracity of the doc.
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Under 37(d), if a party fails to attend deposition or serve interrogatory answers, objection to the questions is only an excuse if.....
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a protective order is pending on the issue objected to.
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Under rule 37 what is the range of sanctions that can be imposed?
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From awards of expenses to dismissal of an entire case or entry of a default judgment.
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Under 26(c) a party may seek a protective order to protect confidential or embarrassing info that might be relevant if they show
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good cause.
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Under Rule 35, a party moving for physical/mental exams must show
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1) condition to which exam is sought is genuinely in controversy (central to the suit, not of a peripheral witness); and
2) good cause exists for particular exam (must showe evidence to establish good cause) |
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If a person refuses to take a physical/mental exam, the court may...
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impose sanctions under 37(b)(2)
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Under the Upjohn test, attorney-client privilege covers employees of a corporation if what 4 requirements are met?
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1) Info is needed to supply basis of legal advice
2) Communication concerns matters within the scope of the employee's duties 3) Employees know that they are being questioned so that the company can obtain legal advice 4) Employees understand that the communications are confidential |
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Under 26(b)(3) privileged work product is information ______________
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prepared in anticipation of litigation.
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When is work product discoverable under 26(b)(3)?
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When the witness or relevant info is essential to the case but is no longer or available or is very difficult/burdensome to discover.
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Under 26(b)(3) what must a party seeking info protected by the work product privilege prove?
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That the info would be overly burdensome to get on their own and they can't get it anywhere else.
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When the court orders discovery of work product under 26(b)(3),what info is protected?
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mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party.
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Would the following be protected as work product under 26(b)(3): "List names and addresses of any witnesses to the accident"
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No - only requesting facts.
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Would the following be protected as work product under 26(b)(3): "List any such witnesses whom you have interviewed."
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Yes - it would reveal the party's strategy.
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Would the follwing be protected as work product under 26(b)(3): "Describe the statements of such witnesses"
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Yes, unless the witnesses are dead or otherwise unavailable.
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Are testifying expert witnesses required to be disclosed under 26(a)(1) initial disclosure rule?
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No, but 26(a)(2) requires that they be disclosed at least 90 days before trial, or if it's a rebuttal expert, 30 days after the other party's expert disclosure.
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When must testifying expert witnesses be disclosed according to 26(a)(2)?
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At least 90 days before trial, or if it's a rebuttal expert, 30 days after the other party's expert disclosure.
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Under 26(a)(2) disclosure of a testifying expert witness must include a written report of what 5 things?
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1) Statement of opinions and bases of opinions
2) Data used and any exhibits 3) Qualifications (including publications for last 10 years) 4) Compensation paid 5) List of cases in which the expert testified at trial or deposition in last 4 years |
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May a party depose any expert testifying on behalf of the other party under 26(b)(4)?
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Yes, but not a non-testifying expert, unless under 35(b) the expert conducted an exam of a witness or party or if there are exceptional circumstances uder which it is impracticable for the party to obtain facts/opinions on same subject.
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Under 26(b)(4) are non-testifying experts discoverable?
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Generally no.
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When may a non-testifying expert's opinions/known facts be retained by the other party?
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1) As provided by 35(b) - such as when expert conducted exam of witness/party
2)Upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts/opinions on same subject by other means. |
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Is the following an example of a situation in which a non-testifying expert's opinions/facts are discoverable: After boxes of fruit left behind by shipping company, P hired surveyor to examine scene. P and D received notice of event at same time. D wants to discover the findings of the surveyor.
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No - the court said the D could easily have sent own surveyor, but didn't. (Chiquita International v. M/V Bolero Reefer)
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Under rule 55(a) the clerk shall enter a default judgment when:
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the party against whom a judgment is sought fails to plead or otherwise defend.
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The clerk can enter a default judgment under 55(b)(1) when:
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The opponent does not appear and the sum of damages is certain.
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The judge enters default judgment under 55(b)(2) when:
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1) The sum of damages is not certain; or
2) The opponent appears. |
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Default judgment may be set aside for what 5 reasons under 60(b):
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1) mistake, inadvertance, surprise or excusable neglect (illness, emergencies, death in family, changed counsel)
2) Newly discovered evidence which by due dilligence couldn't have been discovered in time 3) Fraud, misrepresentation, or misconduct of adverse party 4) Judgment is void 5) Judgment has been satisfied, released, or discharged |
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What are the grounds for an involuntary dismissal under 41(b)?
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Plaintiff's failure to prosecute or comply with rules/orders of the court.
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Who may raise the issue of involuntary dismissal under 41(b)?
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Court or the adversarial party.
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Is 41(b) involuntary dismissal on the merits?
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Yes, unless the court otherwise specifies.
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When may a P get voluntary dismissal without seeking order from the court, under 41(a)(1)?
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1) Before service of D's answer; 41(a)(1)(i) or
2) At any time by stipulation signed by all parties; 41(a)(1)(ii) |
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Can party re-bring an issue if it has been involuntarily dismissed under 41(b)?
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No - it is deemed adjudicated on the merits.
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Can party re-bring an issue if it has been voluntarily dismissed under 41(a)(1)?
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Yes, unless otherwise specified by court.
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What must a party show in a motion for summary judgment under Rule 56?
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There is no material question of fact and they are entitled as a matter of law.
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After a party moves for summary judgment and makes the required showing, who has the burden of production under 56(e)?
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The adversarial party, who must set forth specific facts showing that there is a genuine issue for trial.
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What must a plaintiff moving for Rule 56 summary judgment show to win?
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P must bring forth evidence proving every element of their claim.
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In what two ways can a movant win a rule 56 motion for summary judgment?
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1) Negate an essential element of non-moving party's claims; or
2) Demonstrate that nonmoving party's evidence is inadequate. |
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Under 56(e) what are the requirments of an affidavit submitted in support of a motion for summary judgment?
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1) Must be made on personal knowledge;
2) Must set foth such facts as would be admissable in evidence' 3) Must show affirmatively that affiant is competent to testify |
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Under 56(f), may a party file an affidavit because it needs more time for discovery to present facts essential to justify opposition of the motion for summary judgment?
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Yes, as long as they state the reasons why they need more time.
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What is the goal of the rule 16 pretrial conference?
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For the parties to formulate a plan for trial.
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Who must attend a pre-trial conference under 16(d)?
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One attorney conducting trial for each party.
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Under 16(e), does the pretrial order supersede the pleadings?
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Yes.
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For what reasons may a judge (upon motion or own discretion) impose sanctions upon a party for pre-trial violations?
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1) Party/attorney fails to obey a scheduling pretrial order
2) No appearance is made on behalf of party at scheduling or pretrial conference 3) Party/attorney is substantially unprepared to participate in conference 4) Party/attorney fails to participate in the conference in good faith |
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What sanctions may a judge impose for pre-trial violations?
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Attorneys' fees, and/or sanctions under 37(b)(2)(B),(C), (D)
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What is the 7th Amendment test to determine if a party has the right to trial by jury?
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1791 Test: Party has the same right they would've had in 1791 where if it was a common law claim there was right to jury trial, and where there was chancery/equitable claim there was no right to a jury trial.
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Which 4 kinds of cases in 1791 would've been heard in common law court in front of a jury?
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1) Cases involving non-retributory money damages
2) Ejectment - action seeking ejection of owner/occupier from property 3) Replevin - actoin for repossession of personal property wrongfully taken 4) Mandamus/prohibition/certioari - mand (writ issued by higher court to compel lower court to perform duties correctly) - prohibition (prevents lower court from exceeding jurisdiction) - certiorari (directs lower court to deliver record in the case for review) |
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Which 6 kinds of cases in 1791 were heard in chancery court and therefore held no right to jury trial?
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1) Injunctions
2) Specific performance 3) Reformation/recission of K 4) Accountings 5) Class actions 6) Monetary relief that is restitutionary or incidental/intertwined with equitable relief |
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When a claim involves both legal and equitable claims/defenses, who hears it?
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The legal claims are tried first to jury who decides factual issues, then the judge hears the equitable claims (bound by jury's factual findings)
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Under 38(d), what happens if the right to a jury trial is not demanded?
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Jury trial is considered waived, unless court orders jury trial; 39(b)
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What is the time limit in which a party must demand a jury trial, under 38(b)?
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Any time after the start of the action and no later than 10 days after service of last pleading.
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Under rule 48 how many people sit on juries?
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Between 6 and 12.
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Under rule 48, must the jury verdict be unanimous or majority?
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Unanimous
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Under 28 USC Section 1861, what is the required make up of a jury?
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Fair cross-section o fth ecommunity.
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Under 28 USC Section 1862, on what grounds is a citizen forbidden from being excluded from jury service?
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Race, color, religion, sex, national origin, or economic status.
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When must challenges to jury selection pool be made under 28 USC 1867(c)?
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Before voir dire.
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What constitutes a valid challenge of a potential juror for cause?
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Partiality or bias towards one party.
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How many challenges of potential jurors for cause is each party allowed?
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Unlimited number.
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Under 28 USC 1870, how many peremptory challenges is each party allowed?
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Three
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What is a peremptory challenge of a potential juror?
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A motion to dismiss a potential juror for any reason other than gender/race discrimination.
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Under the Batson procedure, what must a party show in objection of other party's peremptory challenge for gender/race discrimination?
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A pattern of using peremptory challenges based on race or gender.
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If a party's peremptory challenge is objected to for race/gender discrim, what must they show?
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Other gender/race neutral explanations for challenge.
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What must a party show to challenge a verdict based on a juror's inaccurate voir dire answers?
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1) The juror failed to honestly answer a material question - a conscious lie.
2) The juror's correct response would have provided a basis for challenge of cause. |
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What are two main goals of a trial
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1) A rational process - keep juries from doing something irrational based on evidence
2) The cases that go to trial are close cases that need juries |
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What makes a jury virdict irrational?
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Those not supported by the evidence or justified by the law
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Under 50(a)(1) when may a party file motion for judgment as a matter of law?
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After the party has fully presented argument.
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If D asserts motions in answer, what must they do to have it ruled upon?
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File 12(c) Motion for Judgment on the Pleadings
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In Penn RR v. Chamberlain, the Supreme Court decided that if a 50 JML motion was made after both sides have been heard, the judge should examine ______________
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evidence presented by both sides.
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Under the Scintilla test, a JML should not be granted if...
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there is anything in the nonmoving party's favor.
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Under 50(b) a renewed motion for JML (jnov) how long does a party have to renew a JML request after entry of judgment?
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10 days
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A party moving for a renewed JML under 50(b) may alternatively request __X__ or join a motion for __X__ under Rule 59.
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X - new trial
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Motions for a new trial can be granted for one of two reasons, under common law:
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1) When the verdict is against the great weight of evidence, or
2) there is a miscarriage of justice or seriously erroneous result |
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Under 59(e) any motion to alter or amend a judgment shall be filed how long after entry of judgment?
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10 days
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Under the mootness doctrine, a judgment cannot be appealed when...
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circumstances have changed in such a way that relief is no longer possible. (Ex: parties settle)
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A issue may not be appealed unless it was first
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raised in court. Ex: can't appeal based on jury instructions if didn't object to them in court
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Under 28 USC 1291 an appeal can only be raised from what kind of judgment?
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Final
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When is there a final judgment?
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When there is nothing left for the trial court to decide and litigation has ended on the merits.
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What are the exceptions to the 28 USC 1291 final judgment requirement for appeals?
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1) Cohen doctrine (collateral order doctrine)
2) Rule 54(b) - multiple parties/claims 3)28 USC 1292(a) - injunctions 4) 28 USC 1292(b) - 4 factor test 5) Writ of Mandamus |
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Under the Cohen doctrine a non-final judgment is reviewable if three factors are satisfied:
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1) the order appealed conclusively determines a question
2) that question is separate from the merits; and 3) it would be effectively unreviewable on appeal from final judgment (disallowing appeal would destroy right, ex: immunity)_ |
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Under Rule 54(b) a trial court may direct entry of final judgment as to one/more (but fewer than all) claims/parties so that judgment is immediately appealable upon a showing that:
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There is no just reason for delay and there are multiple parties/claims.
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Under 28 USC 1292(a), non-final judgments are immediately appealable if a court has ruled on an ______
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injunction.
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Under 28 USC 1292(b) the following four factors must be satisfied for a non-final judgment to be immediately appealable:
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1) Order involves a controlling question of law
2) There is substantial ground for difference of opinion on that question of law 3) An immediate appeal from the order may materially advance the ultimate termination of the litigation; 4) And the trial court certifies all of the above. |
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A writ of mandamus is a seperate action against a tc judge. The party must show:
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The judge abused his discretion or refused to do his legal duty, which constituted an EXTRAORDINARY error.
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What factors are considered in determination of whether to grant a writ of mandamus?
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1) Party has no other adequate means to attain relief,
2) Harmed in a way not correctable on appeal 3) Clearly erroneous ruling as a matter of law 4) District court's error is often repeated 5) The writ raises new and important issues |
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Under 52(a) findings of fact (based on oral/written evidence) can't be reversed unless...
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they are clearly erroneous.
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Under 52(a) the court can't review findings of fact de novo, it must...
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give deference to the trial court and take their findings into account when reviewing issues of fact.
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Findings of law are reviewed under the de novo standard, meaning the appellate court...
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gives no deference to the trial court.
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Under Rule 61 and 28 USC 2111, an appellate court cannot reverse a judgment for what kind of errors?
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Harmless errors that do not affect the "subtstantial rights" of the parties.
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The purported error in an appeal must have affected _____ for it to have affected the substantial rights of the parties. (Rule 61)
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The outcome.
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If a judge thinks damages are too he high, he may give the plaintiff the option of either X or Y: remittur
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X - accepting lower damages
Y - new trial |
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Under 28 USC 2201-2202 a party may seek _______ as damages without seeking monetary damages or specific relief.
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a declaration of rights
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Under 65(b) a party may seek a ___________ which is a court order forbidding the opponent from taking some action until litigant's application for it has been heard.
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Temporary restraining order.
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A temporary restraining order (65(b)) may be granted without notice to the opposing party only if:
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1) It clearly appears from specific facts show that immediate and irreperable injury, loss, or damages will result to applicant before opponent can be heard in opposition; and
2) applicant certifies to the court that they made efforts to give notice or give reasons supporting claim notice shouldn't be required. |
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Under the Cohen doctrine a non-final judgment is reviewable if three factors are satisfied:
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1) the order appealed conclusively determines a question
2) that question is separate from the merits; and 3) it would be effectively unreviewable on appeal from final judgment (disallowing appeal would destroy right, ex: immunity)_ |
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Under Rule 54(b) a trial court may direct entry of final judgment as to one/more (but fewer than all) claims/parties so that judgment is immediately appealable upon a showing that:
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There is no just reason for delay and there are multiple parties/claims.
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Under 28 USC 1292(a), non-final judgments are immediately appealable if a court has ruled on an ______
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injunction.
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Under 28 USC 1292(b) the following four factors must be satisfied for a non-final judgment to be immediately appealable:
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1) Order involves a controlling question of law
2) There is substantial ground for difference of opinion on that question of law 3) An immediate appeal from the order may materially advance the ultimate termination of the litigation; 4) And the trial court certifies all of the above. |
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A writ of mandamus is a seperate action against a tc judge. The party must show:
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The judge abused his discretion or refused to do his legal duty, which constituted an EXTRAORDINARY error.
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What factors are considered in determination of whether to grant a writ of mandamus?
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1) Party has no other adequate means to attain relief,
2) Harmed in a way not correctable on appeal 3) Clearly erroneous ruling as a matter of law 4) District court's error is often repeated 5) The writ raises new and important issues |
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Under 52(a) findings of fact (based on oral/written evidence) can't be reversed unless...
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they are clearly erroneous.
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Under 52(a) the court can't review findings of fact de novo, it must...
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give deference to the trial court and take their findings into account when reviewing issues of fact.
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Findings of law are reviewed under the de novo standard, meaning the appellate court...
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gives no deference to the trial court.
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Under Rule 61 and 28 USC 2111, an appellate court cannot reverse a judgment for what kind of errors?
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Harmless errors that do not affect the "subtstantial rights" of the parties.
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The purported error in an appeal must have affected _____ for it to have affected the substantial rights of the parties. (Rule 61)
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The outcome.
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If a judge thinks damages are too he high, he may give the plaintiff the option of either X or Y: remittur
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X - accepting lower damages
Y - new trial |
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Under 28 USC 2201-2202 a party may seek _______ as damages without seeking monetary damages or specific relief.
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a declaration of rights
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Under 65(b) a party may seek a ___________ which is a court order forbidding the opponent from taking some action until litigant's application for it has been heard.
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Temporary restraining order.
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A temporary restraining order (65(b)) may be granted without notice to the opposing party only if:
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1) It clearly appears from specific facts show that immediate and irreperable injury, loss, or damages will result to applicant before opponent can be heard in opposition; and
2) applicant certifies to the court that they made efforts to give notice or give reasons supporting claim notice shouldn't be required. |
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Under the Cohen doctrine a non-final judgment is reviewable if three factors are satisfied:
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1) the order appealed conclusively determines a question
2) that question is separate from the merits; and 3) it would be effectively unreviewable on appeal from final judgment (disallowing appeal would destroy right, ex: immunity)_ |
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Under Rule 54(b) a trial court may direct entry of final judgment as to one/more (but fewer than all) claims/parties so that judgment is immediately appealable upon a showing that:
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There is no just reason for delay and there are multiple parties/claims.
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Under the Cohen doctrine a non-final judgment is reviewable if three factors are satisfied:
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1) the order appealed conclusively determines a question
2) that question is separate from the merits; and 3) it would be effectively unreviewable on appeal from final judgment (disallowing appeal would destroy right, ex: immunity)_ |
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Under 28 USC 1292(a), non-final judgments are immediately appealable if a court has ruled on an ______
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injunction.
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Under 28 USC 1292(b) the following four factors must be satisfied for a non-final judgment to be immediately appealable:
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1) Order involves a controlling question of law
2) There is substantial ground for difference of opinion on that question of law 3) An immediate appeal from the order may materially advance the ultimate termination of the litigation; 4) And the trial court certifies all of the above. |
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Under Rule 54(b) a trial court may direct entry of final judgment as to one/more (but fewer than all) claims/parties so that judgment is immediately appealable upon a showing that:
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There is no just reason for delay and there are multiple parties/claims.
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A writ of mandamus is a seperate action against a tc judge. The party must show:
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The judge abused his discretion or refused to do his legal duty, which constituted an EXTRAORDINARY error.
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|
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Under 28 USC 1292(a), non-final judgments are immediately appealable if a court has ruled on an ______
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injunction.
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What factors are considered in determination of whether to grant a writ of mandamus?
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1) Party has no other adequate means to attain relief,
2) Harmed in a way not correctable on appeal 3) Clearly erroneous ruling as a matter of law 4) District court's error is often repeated 5) The writ raises new and important issues |
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Under 28 USC 1292(b) the following four factors must be satisfied for a non-final judgment to be immediately appealable:
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1) Order involves a controlling question of law
2) There is substantial ground for difference of opinion on that question of law 3) An immediate appeal from the order may materially advance the ultimate termination of the litigation; 4) And the trial court certifies all of the above. |
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Under 52(a) findings of fact (based on oral/written evidence) can't be reversed unless...
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they are clearly erroneous.
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A writ of mandamus is a seperate action against a tc judge. The party must show:
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The judge abused his discretion or refused to do his legal duty, which constituted an EXTRAORDINARY error.
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Under 52(a) the court can't review findings of fact de novo, it must...
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give deference to the trial court and take their findings into account when reviewing issues of fact.
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What factors are considered in determination of whether to grant a writ of mandamus?
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1) Party has no other adequate means to attain relief,
2) Harmed in a way not correctable on appeal 3) Clearly erroneous ruling as a matter of law 4) District court's error is often repeated 5) The writ raises new and important issues |
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Findings of law are reviewed under the de novo standard, meaning the appellate court...
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gives no deference to the trial court.
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|
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Under Rule 61 and 28 USC 2111, an appellate court cannot reverse a judgment for what kind of errors?
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Harmless errors that do not affect the "subtstantial rights" of the parties.
|
|
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Under 52(a) findings of fact (based on oral/written evidence) can't be reversed unless...
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they are clearly erroneous.
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|
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The purported error in an appeal must have affected _____ for it to have affected the substantial rights of the parties. (Rule 61)
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The outcome.
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Under 52(a) the court can't review findings of fact de novo, it must...
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give deference to the trial court and take their findings into account when reviewing issues of fact.
|
|
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If a judge thinks damages are too he high, he may give the plaintiff the option of either X or Y: remittur
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X - accepting lower damages
Y - new trial |
|
|
Findings of law are reviewed under the de novo standard, meaning the appellate court...
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gives no deference to the trial court.
|
|
|
Under 28 USC 2201-2202 a party may seek _______ as damages without seeking monetary damages or specific relief.
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a declaration of rights
|
|
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Under Rule 61 and 28 USC 2111, an appellate court cannot reverse a judgment for what kind of errors?
|
Harmless errors that do not affect the "subtstantial rights" of the parties.
|
|
|
Under 65(b) a party may seek a ___________ which is a court order forbidding the opponent from taking some action until litigant's application for it has been heard.
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Temporary restraining order.
|
|
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The purported error in an appeal must have affected _____ for it to have affected the substantial rights of the parties. (Rule 61)
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The outcome.
|
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A temporary restraining order (65(b)) may be granted without notice to the opposing party only if:
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1) It clearly appears from specific facts show that immediate and irreperable injury, loss, or damages will result to applicant before opponent can be heard in opposition; and
2) applicant certifies to the court that they made efforts to give notice or give reasons supporting claim notice shouldn't be required. |
|
|
If a judge thinks damages are too he high, he may give the plaintiff the option of either X or Y: remittur
|
X - accepting lower damages
Y - new trial |
|
|
Under 28 USC 2201-2202 a party may seek _______ as damages without seeking monetary damages or specific relief.
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a declaration of rights
|
|
|
Under 65(b) a party may seek a ___________ which is a court order forbidding the opponent from taking some action until litigant's application for it has been heard.
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Temporary restraining order.
|
|
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A temporary restraining order (65(b)) may be granted without notice to the opposing party only if:
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1) It clearly appears from specific facts show that immediate and irreperable injury, loss, or damages will result to applicant before opponent can be heard in opposition; and
2) applicant certifies to the court that they made efforts to give notice or give reasons supporting claim notice shouldn't be required. |
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A Temporary restraining order expires after how long under 65(b) unless it's extended for good cause or agreement by both parties?
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10 days or less
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A court order temporarily commanding or preventing an action, issued before or during trial to prevent an irreparable injury from occurring before court has chance to decide case, under 65(a) is a ...
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preliminary injunction
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May a preliminary injunction be issued without notice to adverse party if good cause is shown under 65(a)(1)?
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No.
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What is the common law, 4 factor test for granting a preliminary injunctoin?
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1) Plaintiff will suffer irreparable injury if injunctive relief isn't granted,
2) Plaintiff will likely prevail on merits, 3) Defendant won't be harmed more than plaintiff helped by injunction 4) Granting injunction is best in public interest |
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What is the alternative common-law test for granting a prelim injunction?
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1) P will suffer irreparable injury if injunctive relief isn't granted
(a) Harm to P is sufficiently serious (b) Balance of hardships tips in P's favor 2) P will likely prevail on merits (a) Fair chance of success on merits (b) Serious questions are raised 3) In balancing equities D won't be harmed more than P helped by injunction 4) Granting injunction is in public interest |
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Under the due process clause of the 14th Amendment, each party has right to ________ and ______ before being deprived of property.
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notice and the opportunity to be heard
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In what situations may a party be deprived of property without notice and opportunity to be heard required under 14th Amendment?
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1) When there is immediate danger that the property will be destroyed/concealed, or
2) Where there is a great need for cessation of a behavior as a government interest (ex: towing car, closing down salmonella restaurant) |
