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156 Cards in this Set
- Front
- Back
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PJ |
1. Statisfy state statute (vary by state) 2. satsify constitution |
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in personam jurisidiction |
1. P sues to impose personal obligation on D |
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PJ constitutional analysis |
1. clear = a. domiciled in forum b. consents or c. voluntarily present when served 2. unclear = step process a. contact b. relatedness c. fairness |
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PJ - contact |
1. purposeful availament (D's voluntary act) a. if cause effect in forum = can be met b. ie - try to make money there, used roads there, marketed there, etc. 2. foreseeability: must be foreseeable that D could get sued in fourm |
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PJ - relatedness |
1. Does P claim arise from D's contact w/ forum? a. yes = specific PJ = fairness analysis b. no = must have general PJ |
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general PJ |
1. at home in forum (domiciled) 2. coporation domiciled - a. where incorporated b. where principal place of business (PPB) 3. = can be sued to claim that arose anywher in world |
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PJ - fairness/reasonable analysis |
1. only w/ specific PJ 2. factors: a. Burden on D and witnesses (sever disadvantage in litigation) - i. relative wealth of parties not determinative b. State's interest (always if P citizen of forum) c. P's interest |
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In rem and Quasi in rem jurisidiction |
1. Power over D's property in forum 2. property must be attached by court at outset of case 3. D's contacts w/ forum must eet constituional test for inpersonam |
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Subject matter jurisidiction (SMJ) |
1. Court's power over case 2. State courts have general SMJ (hear anything) a. except: fed law require brought in fed court (patent, bankruptcy, fed securityies/antitrust) 3. fed court = limited SMJ = only hear if a. arising under b. diversity of cit. |
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Diversity of citiznship/alienage |
1. b/w citizen of different state (diversity) or a. b/w citizen of state and citizen of foreign country (alienage) b. more than $75k |
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complete diversity rule |
no diversity if any P citizen of same state as any D |
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alienage |
1. if not USC = alien (even if have green card) 2. exceptoin a. no alienage if: green card alien domiciled in same US state as other litigant 3. also if one is a USC but domiciled in other country = no alienage + no diversity |
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citienship of person |
1. US state of domicile 2. person = only one but always have one (est. citizenship in state) a. changing domicile = i. physical presence there (must have arrived) + ii. intent to make that permanent home |
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Timing of diversity |
1. Test for diversity is when the case is filed |
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Citizenship of corporation |
1. every state/country where incorporated AND ALSO 2. ONe state/country where PPB |
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Location of PPB |
1. nerve center test 2. where direct, coordinate, and control corporate activities |
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citizenship of unicorporated association |
1. partnership or LLC 2. citizenship of all its members/partners |
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citizenship of decedents, minors, incompentents |
1. representative citizenship irrelevant 2. use citizenship of decdent, minor, incompetent |
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amount in controversy |
1. more than 75k 2. not include cost (litigation expenses not attny fees) or interest on claim (but if suing to recover interest as claim = counts) 3. count whatever claimed in good fe unless a. clear to legal certainty that can't recover more |
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What if wins less than 75K |
1. may be required to pay D's litigation costs 2. usually winner recovers costs from loser |
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Aggregation |
1. P vs. D = aggregate all claims (as many even if not related) 2. 2 P vs. D = no aggregate 3. P vs. joint tortfeasor Ds = aggregate (use total value of claim ONLY OF RELATED CLAIMS) |
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equitable relief: amount in controversy |
1. either or a. P's viewpoint (decrease value of P's property by more than 75k) b. cost D more than 75k to comply w injunction |
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Cases court not hear even if meet diversity/alienage |
1. divorce 2. alimony 3. child custody 4. probate/estate |
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Federal question case |
1. P's clai itself must arise under federal law a. not enough if federal issue raised by complaint 2. test = is P enforcing a federal right? yes = FQ |
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Additional claims SMJ analysis |
1. additional = SMJ? if so then done 2. original has SMJ + qualifies for supplement 3. purpose = all claims needs SMJ |
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supplemental jurisdidiction |
1. common nucleus of operative facts w/ original claim = a. arises from same transaction or occurence underlying case b. courts discretion 2. Unless: a. Diversity b. claim by P c. unless: i. Mulptile P's ii. one P not meet amount in controversy |
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supplemental jurisdiction: discretionary factors |
1. state law is complex 2. state law issues would predominate case 3. underlying claim (that got SMJ) was dismissed early in case |
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removal rules |
1. Only D can do 3. must do w/in 30 days of service a. start anew w/ service on D2 at later time b. if case becomes removeable start anew (party dropped) 4. all D's who have been served must join in removal 5. excpetions to which can be removed: a. diversity i. any D citizen of forum OR ii. more than one year after case filed in state court A. unless finding of P acted in bad faith by joining D to prevent removal |
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where removal to |
1. state to fed 2. federal district embracing state court where case was filed |
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Removal: process |
1. D files notice of removal in fed (state grounds - SMJ) 2. D attaches all docs served on him in state action 3. D serves copy of notice of removal on adverse parties THEN 4. files copy of notice of removal in STATE COURT |
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Removal nuance: states not limite amount reocoverable to what stated in claim |
1. Fed court hold hearing2 2. burden on D to show by PREPONDERANCE that amount exceeds 75k |
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Remand |
1. improper for reason other than lack SMJ: a.must move to remand w/in 30 days after notice of rmemoval filed in FED. 2. If remand due to lack SMJ = move anytime a. if D removes w/ instate D = NOT SMJ problem = must move w/i 30 days |
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what law applies? |
1. Federal law on point (const./statue/FRCP/FR Evid.)? yes = fed rule if valid a. FRCP valid if arguably proceduarl (always wins) 2. State law if issue substantive on 4: a. elements of claim/ defense b. statute of limitations (tolling rules) c. conflict/choice of law rules 3. if not one of four = Fed judge determines if issue substantive if so = state |
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What law applies: fed judge decide if issue substantive |
1. some factors (unlear how to weigh) a. outcome determinative (if outcome differ based on use fed/state = substantive = state law) b. balance of interests (fed vs. state interest) c. avoid forum shopping: if cause parties to go to fed = use state law |
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federal common law |
1. no General fed common law 2. can do common law in certain areas: a. Fed statute w/ gap (statute of limitation) -- no room for state law b. international relations, admirality, disputes b/w states, right to sue federal officer for violating one's federal rights |
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Venue: choice |
1. P can put any district where: a. all D's reside b. substantial part of clai arose 2. if D not reside in US = venue ok in any district 3. IF all D's reside in different districts of forum state = a. any district where any D resides |
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where do D's reside for venue |
1. human = where domiciled 2. business (coorporated or not) = all districts where a. Subject to PJ for case |
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transfer of venue |
1. can only transfer to plce where case could have been filed originally a. must be proper venue and have PJ over D (without waiver of D) b. unless = all parties (including P consent) then = can transfer to anywhere even improper venue 2. Discretionary = if proper original = can order based on convenience/ and interest of justice (. burden on person requesting transfer) a. if improper original = transfer in interest of justice or dismiss |
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transfer: which law apply |
2. transferee applies law that transferor would have applied 3. unless valid forum selection clause - then apply transferee law |
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Transfer: factors court looks to |
1. public: what law applies, community burdened w/ jury service; desire to keep controversy local 2. private (important): convenience - where evidence and witnneses are 3. existence of valid forum selection clause |
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forum non conveniens |
1. Makes more sens in other court (center of gravity in case) 2. Other more convenient court in different judicial system (foreign) = transfer impossible 3. other court = available and adequate (enough to get day in court, not matter if not get jury trial, etc.) 3. Court can dismiss or stay (hold in abeance = idea is that P will file in other court) a. if P resident of present forum - dismissal hardly ever granted |
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notice of process |
1. summons = formal court notice of suit and time for response 2. copy of complaint |
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who can serve process |
1. nonparty 2. at least 18 |
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service of process |
1. personal service (papers given to D anywhere) 2. substituted service: a. D's usual abode + b. serve on someone of suitable age/discretaion + resides there 3. service on D's agent (or in scope of agency ie registered agent, amanaging agent, officer of coorp.) 4. any way permitted by state law of state where: a. Fed court sits OR B. service is made c. both must be reasonably calculated to provide service (constitutional requirement |
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waiver by mail |
1. Mail to D: a. copy of complaint b. 2 copies of waiver c. prepaid means of returning form 3. D has 30 days to mail waiver = waive formal service a. not mean waive any defenses 4. P files waiver form received from D in court |
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consequences of waiver/refusal of waiver |
1. Pay costs of formal service if not have good cause for waiving 2. if waive = 60 days to repond instead of 21 |
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return of service |
1. person who serves file report w/ court detailing how service donw: a. if server = civilian = affidavit 2. if fials to file report = not affect validity of service |
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service of other docs |
1. ok by email if party agrees 2. if in mail = a. deemed served when mailed b. other party gets 3 extra days to respond |
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pleadings |
1. complaint 2. response (if answer) |
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complaint |
1. filing commences actions 2. requirements a. state grounds of SMJ i. plead enough facts supporting a plausible claim) ii. plausibility determined by judge's own experience and common sense iii. fraud/mistake/special damages = plead w/ particularity or specificity (higher) c. demand for relief |
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D's respons |
1. done by motion or answer 2. done w/in 1 days of service (unless waived then 60) |
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motions |
1. not pleadings - requests for court order 2. issues of form a. motion for more definite statement b. motion to strike (removes immaterial/scandalous things from claim) |
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Rule 12b defenses |
1. done in either motion to dismiss or in answer 2. 7 types: a. lack of SMJ b. lack of PJ c. IMproper venue d. improper process (problem w/ papers) e. improper service of process f. failure to state a claim g. failure to join indispensable party |
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Rule 12b waivailbe |
1. lack of pj 2. improper venue 3. improper process 4. improper service of process ==== MUST BE PUT IN FIRST RULE 12 REPONSE (MOTION/ANSWER) or else wiaved NOte: a. any other defense can be brought throughout trial b. SMJ = never waived (if found = dismiss or if started at state level = remand) |
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Answer |
1. respond to allegation a. admit b. deny (if not done clearly = admit) i. D never eemed to admit damages c. lack sufficient info a. if answer in your control = duty to investigate and find 2. raise affirmative defenses a. new fact in case that = D win (affirmative defenses - must plead or risk waiver) |
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counterclaim |
1. vs. opposing party (D vs. P) 2. part of D's answer (P responds w/in 21 days) 3. types: a. permissive b. compulsory 4. must have SMJ or Supplemental |
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compulsory counterclaim |
1. same transaction and occurance as P's 2. waived unless : a. file in pending case or b. filed in another case c. OR case dismissed and not need to file answer (if have to file answer and fail to include = waived) 3. |
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permissive counterclaim |
1. not arise from Transaction and occurence as P's claim 2. not required to file |
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cross claim |
1. claim vs. co-party 2. must arise from same TO as underlying action 3. not compulsory 4. must have SMJ or supplemental 5. after cross claim filed other party can respnd w/ counterclai |
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additional claims |
1. once file counterclaim or x-claim = can join additional a. even if claim nothing to do w/ others 2. still need SMJ or supplemental |
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right to amend |
1. P once w/in 21 days after D serves response 2. D right to amend 21 days after serve his answer |
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amend when no right to amend |
1. court decides 2. granted if justice requires: factors: a. delay b. prejudice c. futility of amendment |
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variance |
1. evidence at trial not match what was pleaded a. move to amend complaint to conform to evidence at/after trial |
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amendment after statute of limitations has run (relation back |
1. join new claim = a. amended pleadings relate back if concern same conduct or transaction or occurence as original pleading 2. Change D after statute run = a. concernse same conduct TO as original b. new party knew of case w/in 90 days of filing AND c. new D knew that, but for mistake, she would ahve been named originally 3. def = amended deemed filed at time of filing (avoid statute of limitations) |
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supplemental pleadings |
1. things that happened after pleading was filed 2. never right, always discretionary |
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Rule 11 |
1. all docs except discovery 2. when lawyer or pro se signs docs = certifies that to best of knowledge/belief after reasonable inquiry that: b. legal contentions warranted by law (nonfrivoluos argument for law change) c. factual contentions supported by evidence (can come from likeliness of further investigation) 3. continues when present position to court (take position in document) 4. if violate can sanction: party, attny, or firm a. meant to deter - not punish (don't pay to other party usually, can be classes etc.) |
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Rule 11 process |
1. serve motion on other party for 21 days 2. if not fix problem = motion filed w/ court 3. sua sponte = a. court issues OTC |
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required disclosures |
1. intitial disclosures 2. expert witnesses 3. pretrial required disclosure |
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intial disclosures |
1. 14 days w/in conference (unless stipulated//or court order) 2. ID persons who have discoverable info may use to support claim (give name and tele # + subjects on which they have info.) 3. docs and thins = use to support claims a. includes pics, recordings, and electornically stored info. b. includes tangible things c. if not in custody/control = not required 4. computation of monetary relief + supporting docs 5. insurance coverage 6. failure = d. remedy = unless substantially justified/ harmless = excluded) |
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expert witness disclosures |
1. later in case time directed by court= 2. ID EW who may be used at trial a. if just to help prepare case = no need 3. ID EW and written report about: a. opinions will express b. basis for opinions c. facts used to form opinon d. qualifications e. how much paid 4. after disclose = opposing can depose but must pay reasonable fee set by court + subpoena 5. remedy = can't use EW unless justified/harmless nondisclosure |
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EW disclosure and work product |
1. early drafts of EW disclsoure report 2. comms b/w lawyer and SW |
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EW definition |
1. Because of special skill/training 2. can give opinion in testiomny 3. hired to render opinion in this case |
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Pretrial required disclosure |
1. no later than 30 days before trial 2. give detailed information about trial evidence a. ID of witnesses (live or deposition) b. documents/esi/things to be introduced at trial |
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when can party first request discovery |
after rule 27f cnference 2. or stipulation or court order |
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deposition |
1. usually ora/can be written 2. under oath 3. recorded 4. testify from present recollection 5. can get nonparty (should subpoena - no need for party) a. farthest can make non travel = 100 (unless agreed) 6. 10 max, once per person; can't longer 7 hrs one day a. unless court order/stipulation |
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use of deposition at trial |
1. impeach deponent 2. any purpose if deponent is adverse party 3. any purpose if deponent unavailable for trial |
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interrogatories |
1. under oath 2. parties only 3. 30 days from service to respond 4. 25 max (including subparts) 5. if answer in business record and = burden on both = can hand over records 6. at trial can't use own answers to interrogatories - others ok as per evidence rules |
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requests to produce |
1. hand over or permission to enter property and inspect 2. respond in writing 30 days of service a. state material will be produced or b. object 3. parties only 4. form of material = request party specifies and other can object |
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subpoena duces tecum |
requires deposed to bring requested material to deposition |
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medical exam (physical or mental) |
1. need court order a. show person's health actual controversy b. good cause 2. must be party or in custody/legal control of party (no include employee) 3. party requesting = chooses dr. 4. examined can request to see exam but a. = waives privilege abt testimony of all examinations of medial condition = have to produce reports of own drs abt medical condition |
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request for admission |
1. parties only 2. admit/deny 3. if not know must say "made reasonably inquiry and not find enough to admit/deny" 4. if no response w/in 30 days = admit |
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discovery under oath |
1. every discovery request/response signed by counsel certifying: a. warranted b. not for improper purpose c. not unduly burdensom |
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duty to supplement |
1. after respond to discovery = must supplement as things change |
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scope of discovery |
1. can discovery: a. anything relevant to claim/defense i. reasonably calculated to lead to admissible evidence AND b. proportional to the needs of the case c. not matter if harmful |
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compensatory/punitive damages and discovery |
1. compensatory = not relevant as far as damages can't discover 2. punitive = relevant in order to punish D = discover |
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discovery: ESI (electronically stored info) not accessible |
1. court finds esi not reasonably accessible 2. other party shows = good cause 3. court order production and allocate expense b/w parties |
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privilege and discovery |
1. can object to discovery on basis of evidentiary privilege |
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work product |
1. material prepared in anticipation of litigation a. generally protected from discovery
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qualified work product |
1. not absolute work product (ie witness statement) 2. discoverable if: a. substantial need b. no otherwise available |
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absolute work product |
1. not discoverable a. mental impressions b. opinions c. conclusions d. legal theories IN ANTICIPATION OF LITIGATION 2. if party requests own statement = not protected and discoverable |
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privilege log |
1. if withold discovery or seek protective order = a. done expressly + b. describe materials in detail 2. list materials protected by date/author/recipient/and privilege/protection 3. enough material that judge can decide if protected |
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inadvertently produce privileged material |
1. notify other party propmtly 2. other party must return/sequester/destroy as you direct 3. unlessdecision by judge of waiver |
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protective order |
1. certify that tried in good fe to get info. w/out court involvement a. court can: deny/limit/permit it 2. based on: a. annoyance, embarrasment, undue burden, expense b. or cumulative and not proportional to case |
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partial response to discovery request: remedy |
1. requesting party = motion to compel answers 2. two steps a. order to compel (plus costs + attny fees) b. if violates order to compel = merits sanctions + costs (attny fees) i. possibly held in conetmp |
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no response to discovery remedies |
1. merits santcion + plus costs 2. no need order to compell |
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mertis sanctions choice avilable to judge |
1. establish facts as true 2. striek pleadings of disobedient party 3. disallow evidence 4. dismiss P's case (if in bad faith) 5. default jugement (bad faith) |
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remedy: failure to preserve ESI |
1. if done in good faith = a. if took reasonable steps to preserve b. court order curing harm c. no merits sanctions unless bad faith/intentional |
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proper P/D |
1. arise from same TO 2. raise at least one common question 3. check for SMJ |
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Necessary/indispensable party |
1. Absentee who: (any of following) a. Whiout A court can't give complete relief among existing parties (w/out more suits) b. interest may be harmed if he not joined or c. A claims interest that subjects a party to risk of multiple obligations 2. jointtortfeasors never necessary |
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joinder analysis |
1. necessary 2. can Absentee be joined? (yes = court order joinder) a. PJ over you b. joining won't mess up diversity 3. If can't join = a. proceed w/out A b. dismiss entire case |
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joinder: how court decide to proceed or dismiss if A can't join |
1. factors: a. alternative forum available (state crt?) b. likelihood of harm to A c. can court shape relief to avoid that harm to A? |
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impleader |
1. Defending party brining in someone new (Third party defendant TPD) 2. usually for indemnity (has to shift liability) 3. right to implead w/in 14 days of serving answer - after need court perm. 4. after TPD joined = P can assert claim if: a. same TO as underlying case b. TPD can also have claim vs. P if same TO 5. SMJ = based on claims (so if D vs. TPD and P from same state as TPD not destroy diversity unless claim b/w TPD and P |
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INtervention |
1. nonparty brings self into case 2. must be timely 3. intervention of right a. A's interest harmed if not joined + b. not adequately represented in case 4. permissive = a. A's claim/defense have one common question b. discretion w/ court i. usually ok unless = delay or prejudice someone 5. watch SMJ |
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class action |
1. must demonstrate all: a. numerosity (too many for practibale joinder) b. commonality = some issue in common to all class members = resolution will = answer for all c. typicality = rep's claims are typical of those in class d. rep adequate (fair and adequate rep of class 2. then must fit one of three types |
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types of class action |
1. prejudice (avoid harm to class members/non-class party = if limited funds and will get depleted = all get a portion 2. seeking injunction/declaratory judgment = D treated class members a like 3. damages: a. common questions predominate individual questions b. class action is superior method to handle dispute (mass tort) |
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when become class action |
1. when court grants motion to certify the class 2. court must: a. define the class and class claims, issues, or defenses b. appoint class counsel c. if for damages = notify class members (reasonably identifiable that they are in class: i. they can opt out ii. they'll be bound if no opt out iii. they can enter separate appearance through counsel |
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Who pays to give notice in class action |
1. represenative |
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settle class action |
1. need court approval 2. court gives notice to class members to get feedback of settlement 3. if damages = may give members chance to opt out |
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Class action: SMJ |
1. rep's citizenship 2. amount = rep's claim must exceed 75k |
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class action fairness act (CAFA) |
1. gives SMJ if: a. at least 100 members b. if any class membe is diverse from any D c. aggregate claims of class exceed $5,000,000. |
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preliminary injunctive relief |
1. no ex parte 2. burden on applicant to show all: a. likely to suffer irreparable harm b. likely to win on merits of underlying case c. threatened harm to applicant outweighs harm to other party if injunction given d. in the public interest 3. must post bond 4. can consolidate hearing on motion/trial 5. must state terms in specificity (what and why) 6. court must make specific findings of fact and separate conclusions of law 7. immediately appealable |
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Temporary restrianing order (TRO) |
1. before preliminary injunction can do this until hearing on preliminary Injunction 2. can do ex parte if: a. Applicant files paper under oath b. clearly show that w/out TRO = suffer immediate and irreparable harm if not have c. lawyer certifies in writing his efforts to give oral/written notice to D/D's lawyer 3. must post bond to cover other sid's cost if wrongful 4. Must state terms in specificity 5. served on D asap a. D can move to dissolve/modify TRO 6. effective for 14 days (can extend for good cause for another 14) |
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volunatary dismissal |
1. P has right to take voluntary dismiss by file notice to dismiss a. must do so before D serves responses/motion for summary 2. if timely = dismissed w/out prejudice once (after that w/ prejudice) |
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default |
1. D not respond to compalint in time (21 days) after service 2. P must move for default judgment 3. = D has not right to respond 4. notation by court clerk |
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default judgment |
1. court clerk if: all a. D made no response at all b. claim for sum certain $ c. claimant gives affidavit of sume owed + d. D not a minor/incompetent 2. if can't above = apply to court itself a. judge will hold hearing and decide b. D only gets notice of hearing if he appeared in the case c. can only recover what pleaded 3. D can set aside for good cause (excusable neglect) |
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FRCP 12b6 |
1. motion to dismiss for failure to state a claim 2. court ignores legal conclusions: a. only looks to allegations of fact (must support plausible claim) b. if facts true, would P win a judgment? c. not look to evidence only face of complaint 3. if make motion after D answered = MOtion for judgment on pleadings |
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FRCP 56 |
1. motion for summary judgment 2. party moving must show: a. no dispute on material fact b. entitled to judgment as matter of law 3. always discretionary 4. no later than 30 days after close of discovery 5. can be for partial judgment 6. based on evidence in light most favorable to nonmoving party (stuff done under oath - interrogatories, affidavits, etc.) 7. pleadings to see if failed to deny allegation = fact |
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when pleading treated as evidence |
1. only if verified under oath |
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overcome 56 motion |
1. any evidence to dispute material fact 2. unless = evidence that discredits P's version of facts (videotape) |
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Rule 26f conference |
1. at least 21 days before scheduling conference 2. parties meet and confer 3. discuss production of discovery 4. present to court detailed discovery plan |
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scheduling order |
1. court enters order cut-offs for joinder/amendment/motions/etc. 2. roadmap for litigation |
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pretrial conference |
1. determines issues tried/evidence and witness 2. supersedes pleadings 3. = no suprirses at trial |
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jury trial |
1. 7th amendment 2. right to jury in civil action at law over $20; but not at equity a. if involve both = jury decides facts undelrying damages; not equity claim 3. not apply to state court 4. must dmeand jury in writing no later than 14 days after service of last pleading raising jury triable issues; if not = waived |
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choosing jury |
1. for cause removal = no limit 2. peremptory = 3 per side a. can only be use in race/gender-neutral manner |
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make up of jury |
1. at least 6 maximum 12 2. uninmous vote unless agreed otherwise |
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jury instructions |
1. jury decides facts but instructed on law by judge 2. paries submit proposed instructions to judge (at close of all evidence or earlier) 3. before final argument = court tells parties if accepts/rejects a. parties must be able to specifically object and reject proposed b. if not do this before jury given = can't appeal i. if failure to raise but contained plain error that effects substatntial rights = court can consider |
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types of verdicts |
1. general = who wins and what relief a. clerk enteres judgment 2. special = jury answeres specific questions about fact a. judge reaches legal conclusion based on facts b. judge approves and clerk enters 3. general w/ special interrogatories = a. jury gives general verdict b. answers specific questions (ensure considered important issues) c. if verdict shows jury not follow instructions/internally inconsistent = judge can reject (tell jury to reconsider or order new trial |
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juror misconduct |
1. set aside verdict and order new trial 2. must be based on: a. external matters (bribed, outside investigation to make decision) b. nonjurors can give personal knowledge evidence c. juror can't testify about things occuring/statements during jury deliberations i. can testify to extraneous prejudicial info. or outside influence 3. not set aside if harmless |
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nonjury bench trial |
1. fact finder = judge 2. judge records finding of fact (on record or in writing) 3. must record conclusions of law sepearate from findings of fact 4. judge must enter judgment |
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motion for judgment as matter of law (JMOL) |
1. in jury verdict 2. based on evidence presented at trial 3. reasonble jury has no legally sufficient basis to find 4. view evidence in light most favorable to non-moving 5. can move after otherside has been heard at rial |
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renewed motion for judgment as matter of law (RJMOL) |
1. same as JMOL but after tiral 2. jury reached conlusionthat reasonable people could not have reached 3. = judge enteres judgment for party that lost jury verdict 4. evidence in light most favorable to non-moving 5. w/in 28 days after entry of judgment 6. MUST move for JMOL at proper time at trial (if not = waive) |
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motion for a new trial |
1. move w/in 28 days after judgment 2. some (nonharmless) error at trial = should start over: a. judge gave erroneous jury insruction b. new evidence tha couldn't have been gotte before due diligence c. misconduct: juror/party/lawyer d. serious error of judgment e. inadequate/excessive damage/against weight of evidence (if excessive = use state law only) 3. would get RJMOL but forget to raise JMOL |
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Remititur |
1. P suffered minor damages but gets too much money 2. Must give P choice of: b. leser amount of money decided by judge 3. ok in both fed and state court |
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additur |
1. P suffered serious harm but jury awarded little 2. Must give D choice: a. pay amount of money decided by judge b. new trial 3. ok in state; but uncostitionla in fed (violates 7th A) |
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additur/remititu stanard |
1. damages figure that shocks the concious 2. judge can either order new trial or do additur /remmittitur |
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offer of judgment |
1. at least 14 days before trial/ damages hearing after found liable 2. D offers settlement amount and P rejects 3. if P is awarded less than settlement = a. liable to D for costs incurred after offer was made |
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motion for relief from order/judgment: |
1. ask trial court to set aside order/judgment 2. clerical error - anytime 3. mistake/excusable neglate - reasonable time (never more than 1 year ie default) 4. new evidence that not able discover w/ due dilgence in me for motion for new trial- reasonable time (never more than 1 year) 5. judgment void (no SMJ) - reasonable time (no max) |
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final judgment rule |
1. can appeal to appealate only from final judgment a. final = does trial court have anything to do on merits of case? 2. file notice of appeal in trial court 3. w/in 30 days after entry of final judgment |
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interlocutory review |
1. can appeal even though not final 2. reviewable as right: a. granting/modifying/refusing injunctions |
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interlocutory appeals act |
1. allows appeal of nonfinal if: a. trial judge certifies that involves issue of controlling law b. substantial ground for difference of opion AND c. court of appeals agrees to hear (at least 2 judges) |
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collateral order exception |
1. appelate court has discretion to hear ruling on issue if: a. distinct from merits of case b. involves important legal question c. essentially unreqviewable if parties must wait to final judgment (claim immunity from suit) |
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trial decides final judgment on one issue before final judgment: appeal |
1. when multiple parties or multiple claims 2. trial court can expressley direct etnry of final judgment if 3. express finding that there is no just reason for delay |
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appeals and class action |
1. appeals has discretion of order granting/denying certification of class action 2. must seek review of appelate w/in 14 days of order 3. not stay trial court actions unless appelate says so. |
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extraordinary writ (mandum or prohibition) |
1. proceeding in court of appeals 2. compel trial judge to make/vacate particular order 3. not substitute for appeal 4. trial court must be violating clear legal duty |
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standards of review by appelate |
1. question of law = de novo (content of jury instruction) 2. question of fact = clearly erroneous 3. jury trial question of fact = reasonable peeople not make that finding 4. discretionary matters = abuse of discretion (decide to give jury instruction/not) 5. only overturn if harmless error |
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preclusion: what law applies |
1. use preclusion law of judicial system that decided 1st case |
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claim preclusion |
1. res judicata 2. only can sue on claim once a. brought by same claimant vs. same D b. ended in valid final judgment on the merits i. on the merits unless based on: jurisidiction/venue/indispensible parties 3. based on same claim a. majority = same T/O b. minority: property and PI = different primary rights = not precluded |
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issue preclusion |
1. collateral estoppel 2. case 1 ended in valid, fainal judgment on merits 3. same issue was actually litigated and determined in case 1 4. that issue was essential to judgment in case 1 (finding on issues was basis for judgment) 5. against whom: a. someone party to case 1 or in privity 6. by whom: a. party to case 1 (or represented by a party) b. nonmutual issue preclusion = not party in case 1 |
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privity |
1. party in case 1 represented someone not a party in case 1 |
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nonmutual defensive issue preclusion |
1. not party to case 1 2. D in case 2 3. ok so long as opposing had full chance to litgate in case 1 |
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nonmutual offensive issue preclusion |
1. not a party to case 1 2. P in case 2 3. most states = no 4. modern trend and fed = ok if it is not unfair: a. full and fair opportunity to litigate in case 1 b. opposing had incentive to litigate strongly in case 1 c. You couldn't join easily in case 1 d. no inconsistent findings on the issue (multiple cases call came out same) |
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when action commenced |
1. FQ = when claim filed 2. diversity = state rule applies |
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process immunity |
1. immune if done sole purpose for being in state is to be a witness |
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Rule 41b |
1. involuntary dismissal = with prejudice: 2. failure to prosecute case 3. failure to comply with FRCP 4. failure to comply w/ court order |
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when trial court decision can be enforced |
1. generally immediately 2. can stay for 14 days pending interlocutory appeals |
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what motions can't be extended timelength |
1. RJMOL 2. new trial 3. amend judgment |
