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98 Cards in this Set
- Front
- Back
[NJ Ct. System - Structure]
3 situations where NJ Sup Ct can take an appeal as a right 1 |
-Issue of federal or NJ constitution
-Dissent in appellate division -Death Penalty |
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[NJ Ct. System - Structure]
What is the term for the type of jurisdiction that NJ Superior Courts of Law and Chancery have? 1 |
ORIGINAL Jurisdiction
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[NJ Ct. System - Structure]
Division of cts that take equitable cases? Division of cts that take legal cases? 1 |
Equitable cases: Superior Ct, Chancery Division: General Equity
Legal Cases: Superior Ct., Law Division: Civil |
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[NJ Ct. System - Legal vs. Equitable Claims]
What must be shown first before granting equitable remedies? 2 |
Inadequacy of any remedy at law
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[NJ Ct. System - Legal vs. Equitable Claims]
Distinguish legal claims from equitable ones 2 |
Equitable: Injunctions
Legal: $ |
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[Subject Matter & Personal Jurisdiction - Subject matter]
What type of jurisdiction do NJ cts have over federal law? What does this term mean? 2 |
NJ cts have CONCURRENT jurisdiction over federal law claims
(except for cases reserved only to federal cts, like bankruptcy) |
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[Subject Matter & Personal Jurisdiction - Subject matter]
Would a Plaintiff rather file a federal claim in NJ ct or federal ct, and WHY? 3 |
NJ Court b/c more liberal rules, including only 5/6 jurors in a civil case needed to find a verdict
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[Subject Matter & Personal Jurisdiction - Subject matter: Removal]
When may a D, brought into NJ state court, remove to federal court? 3 |
Only is NO named D is a citizen of NJ (the forum state)
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[Subject Matter & Personal Jurisdiction - Subject matter: Erie]
When in federal court, what law applies when adjudicating over a state law claim? 3 |
Erie Doctrine:
State law applies, EXCEPT federal procedural law applies |
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[Subject Matter & Personal Jurisdiction - Subject matter: Erie]
When in NJ state court, what law applies when adjudicating over a FEDERAL law claim? 3 |
"Reverse" Erie Doctrine:
Federal law applies, but NJ Rules of Ct. apply, NOT the FRCP |
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[Subject Matter & Personal Jurisdiction - Personal Jur]
When Per Jur is valid, and there is a judgment, what is the effect of the judgment? 4 |
-Judgment may be satisfied out of D's property
-Issue and Claim Preclusion takes effect for all issues actually litigated -Judgment is given full faith and credit in all states |
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[Subject Matter & Personal Jurisdiction - Personal Jur: Bases]
What is the extent of NJ's long arm statute? 4 |
TRICK QUESTION:
NJ does NOT have a long arm statute: it allows personal jurisdiction to the full extent allowed under the US Constitution through due process |
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[Subject Matter & Personal Jurisdiction - Personal Jur: Bases]
Without going into the exceptions and nuances, what are the 4 ways in which personal jurisdiction is automatic? 4-5 |
-Service of process while person is physically present in NJ
-Waiver (failed to object) -Consent in K -Domiciled/Incorporated in NJ |
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[Subject Matter & Personal Jurisdiction - Personal Jur: Bases]
What exception to the FEDERAL rules for physical presence service to gain per jur does NOT apply in NJ? 4 |
In NJ, personal service while person in is in NJ is ALWAYS effective (except if by fraud)
INCLUDING if person was in NJ b/c of another judicial proceeding (Federal rules have immunity if person is in the state for another judicial proceeding) |
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[Subject Matter & Personal Jurisdiction - Personal Jur: Bases]***
In order for there to NOT be waiver to per jur, how to assert lack of per jur? 5 |
Must specifically assert lack of per jur in either:
-preanswer motion to dismiss, or -Answer ****BUT, if D objects to per jur in the answer MUST FOLLOW UP with a MOTION within 90 days of the answer |
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[Subject Matter & Personal Jurisdiction - Personal Jur: Bases]
When will Consent to per jur in a K NOT be enforced in NJ? 5 |
(i) Freely agreed (not K of adhesion)
(ii) Reasonable AT TIME OF LITIGATION |
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[Subject Matter & Personal Jurisdiction - Personal Jur: Bases]
If there is not "automatic" per jur, what is the alternative way to establish personal jurisdiction? 5 |
Minimum contact + fair play and substantial justice
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[Subject Matter & Personal Jurisdiction - Personal Jur: Basis}
What's are the basic elements for Per Jur? 5 |
Minimum contacts
-Purposeful availment -Foreseeability Fair Play and Substantial Justice -Relatedness -Convenience -State's interests |
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[Subject Matter & Personal Jurisdiction - Personal Jur: Min contacts Analysis]
What is the "touchstone" of purposeful availment? 5 |
Activity directed toward the forum state
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[Subject Matter & Personal Jurisdiction - Personal Jur: Min contacts Analysis]
What is the test for foreseeability? 6 |
D could reasonably anticipate being hailed into ct in that forum
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[Subject Matter & Personal Jurisdiction - Personal Jur: Min contacts Analysis]
What are the two tests for stream of commerce causes to establish minimum contacts? 6 |
-Puts product in stream of commerce & manufacturer has an expectation that it would reach the forum state
-Additional conduct directed at the state (more than expectation it would get there) |
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[Subject Matter & Personal Jurisdiction - Personal Jur: Min contacts Analysis]
What is enough to satisfy the stream of commerce test in NJ? 6 |
-Puts product in stream of commerce & manufacturer has an expectation that it would reach the forum state
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[Subject Matter & Personal Jurisdiction - Personal Jur: Fair play & Substantial Justice Analysis]
What does the "relatedness" test of the fair plain and substantial justice prong establish for personal jurisdiction? 6 |
The scope of jurisdiction relating to other claims that me brought against the D in the same case
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[Subject Matter & Personal Jurisdiction - Personal Jur: Fair play & Substantial Justice Analysis]
What are the two results of the "relatedness" sub-prong? 6 |
GENERAL JURISDICTION = lots of contacts = P may assert ANY claim against D b/c there is per jur for any of them
SPECIFIC JURISDICTION = Only some contacts = Only personal jurisdiction enough to allow claim arising out of this specific contact |
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[Subject Matter & Personal Jurisdiction - Personal Jur: Fair play & Substantial Justice Analysis]
What are the remaining factors to be balanced for personal jurisdiction under the 'fair play' prong? 7 |
-Burden on D
-Forum state's interests -Convenience |
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[Subject Matter & Personal Jurisdiction - Personal Jur: ...]***
What alternative objection to the forum may a D seek, even if Per Jur is proper? 7 |
Motion for Forum Non Conveniens
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[Subject Matter & Personal Jurisdiction - Personal Jur: Forum Non Conveniens]***
What is the test to grant a motion for Motion for Forum Non Conveniens? 7 |
-Trial in NJ would be oppressive/manifestly inappropriate
(This is VERY hard to show if P is from NJ) |
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[Venue - General Rules]
What does venue encompass for the purposes of NJ Civ Pro? 8 |
Only what county an action can be brought in
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[Venue - General Rules]
What is the proper venue, generally? 8 |
-Any county in which the cause of action arose
-Where any party resides, OR -Where the summons was served |
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[Venue - General Rules]
Where is a Corp a "resident" for venue in NJ? -- |
-ANY county it's doing business in, AND (note: this means there can MORE than 2 counties)
-County where it has its registered office |
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[Venue - Transfer of Action]
Where can a NJ court transfer venue? 8 |
ONLY to another county w/i the state -- NOT to another state
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[Venue - Waiver of objection]
When must a party object to improper venue? 9 |
Must objection no later than 10 days after the time for service of the last responsive pleading
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[Commencement of Civil Action - Generally]
When is a civil action commences in NJ (stopping the SOL from running) 9 |
When the COMPLAINT is filed -- NOT when summons is served
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[Commencement of Civil Action - Service of Process]
What two things must be served to perfect service? 9 |
Summons and complaint
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[Commencement of Civil Action - Service of Process]
When may a D waive service? 10 |
Generally NJ does NOT provide for waiver of service, except D's atty may accept service instead of D, and may file an acknowledgment
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[Commencement of Civil Action - Rules of Pleading]
What is NJ's complaint pleading standard (and compare it to the federal standard) 10 |
NJ = Notice Pleading
Federal = "Plausibility" standard under Twombly |
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[Commencement of Civil Action - Rules of Pleading]
What does R11 provide for, and what are its exceptions? 10 |
Requires good faith pleading
NJ have a 28 days safe harbor period -- federal is 21 days |
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[Commencement of Civil Action - Rules of Pleading]
What are the 3 elements that must be in the complaint? 11 |
-State of the facts
-Statement re: entitled to relief -Demand for judgment |
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[Commencement of Civil Action - Rules of Pleading]
What specific rule re: damages pleading does NJ have? 11 |
Must demand money damages GENERALLY, without specifying amount
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[Commencement of Civil Action - Rules of Pleading]
What actions must be plead with specificity? 11 |
-Fraud
-Mistake |
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[Commencement of Civil Action - Rules of Pleading]
What special requirement does NJ require for malpractice cases? How long do u have to file this? 11 |
W/i 60 days after answer, P must support case with an affidavit of merit by an expert
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[Commencement of Civil Action - Rules of Pleading]
What is NOT allowed in an answer, that would allowed in federal courts? 11 |
General denial of all claims (in NJ must go para by para)
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[Commencement of Civil Action - Rules of Pleading]
What are the six 12(b) defenses that MAY be raised by special preanswer motions? 11-12 |
-Lack of Sub Matter Jur
-Lack of Per Jur -Insufficiency of process -Insufficiency of service -Failure to state a claim on which relief may be granted -Failure to join a necessary party |
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[Commencement of Civil Action - Rules of Pleading]
What are the three defenses that REQUIRE a follow-up motion w/i 90 days if the defenses are raised in an answer, as opposed to a preanswer motion? 12 |
-Lack of Per Jur
-Insufficiency of process -Insufficiency of service |
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[Commencement of Civil Action - Rules of Pleading]
When are counterclaims allowed? 12 |
They are ALWAYS allowed -- for any action
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[Commencement of Civil Action - Rules of Pleading]
When are counterclaims mandatory? 12 |
When arising out of the same transaction or occurrence
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[Commencement of Civil Action - Rules of Pleading]
When may a party file a cross-claim (against a co-party) 12 |
ANYTIME -- unlike federal rules, does NOT need to be the same T/O
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[Commencement of Civil Action - Rules of Pleading]
How many times may a P in NJ amend the complaint before the answer is filed? 12 |
INFINITE
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[Commencement of Civil Action - Rules of Pleading]
What is the rule for when a P may amend the complaint after D has answered? 12 |
May amend as many times as he wants within 90 days after answer is served
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[Commencement of Civil Action - Rules of Pleading]
What special rule does NJ recognize for relation-back of amendments? What is the effect of the rule? 13 |
NJ allows for the "fictitious party" relation back
Allows for relation-back even if a person doesn't know of the case after the SOL has ended |
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[Commencement of Civil Action - Rules of Pleading]
What does pleading a "fictitious party" require? 13 |
-Must list "John Doe" specifically
-Exercise due diligence to seek true identity of John Doe -Move to substitute the party promptly upon discovery -The joined party will not suffer prejudice |
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[Parties - Permissive Joinder]
What is the test for allowing joinder? 13 |
-Transaction connection (Same T/O)
-Share ANY question of law or fact |
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[Parties - Impleader]
When is impleader allowed? When does it occur? 14 |
ONLY occurs when one party's liability will be limited b/c ANOTHER party would be liable to pay due to an indemnity.
Party is known as the THIRD-PARTY DEFENDANT |
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[Parties - Interpleader]****
What is Interpleader? 14 |
It's when a party brings an action in court to ask which party is right, when he would be subject to double liabilities
The claimants are forced to litigate amongst themselves |
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[Parties - Class Actions]
What are the basic standards for a (b)(3) class action? 14 |
-Numerousity(too many for jointder)
-Typicality (class rep. injury is typical of all) -Common issues of law and fact -Class rep. is fair representative (b)(3) requirements -Comm ground predomination -Superior method of adjudication |
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[Discovery - Distinctions]
Which discovery methods are automatic in NJ? 15 |
NONE -- no automatic disclosures
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[Discovery - Distinctions]
What limits are there of the number of interrogaties? Depositions? 15 |
NO limits in NJ
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[Discovery - Scope]
What is the scope of discovery in Federal ct. vs. in NJ 15 |
Federal: Related to claim or defense
NJ: Any matter relevant to the subject matter |
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[Discovery - Scope]
Brief statement of the work-product rule 15 |
No discovery of materials prepared in anticipation of litigation, unless showing of:
-Substantial need -undue hardship BUT, opinion work product is always always protected |
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[Discovery - Scope]
When must a party disclose an expert in discovery in NJ? 15 |
Only when the expert witness will be testifying
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[Discovery - Scope]
What is the test for protective orders? 15 |
Prevent:
-Harassment -Undue Burden |
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[Discovery - Types]
What is the effect of a failure to respond to a request for admissions? 16 |
They are ALL deemed admitted
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[Discovery - Types]
If admissions are deemed admitted, may they be rebutted at trial? 16 |
NO - they are a JUDICIAL ADMISSION that cannot be rebutted
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[Discovery - Types]
What is the most favored form of discovery and why? 16 |
Depositions, b/c can ask follow-up questions
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[Discovery - Types]
What procedure is need to force a PARTY to attend a depo? 16 |
Only a notice of depo
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[Discovery - Types]
What procedure is need to force a NON-PARTY witness to attend a depo? 16 |
Subpoena
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[Discovery - E-Discovery]
What is the test for excusing non-production of e-discovery? 18 |
-Info is not reasonably accessible b/c undue cost or expenses
-Can be rebutted by other's need -Inadvertent deletion in regular course can excuse |
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[Termination w/o Trial - Default]
What is needed to set aside default when no judgment has yet been entered? 18 |
Good cause (excusable neglect, mistake)
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[Termination w/o Trial - Default]
When may a Default JUDGMENT be set aside? 18 |
ONLY w/i 1 year
Must state: -Meritorious defense -Inability to appear due due to accident or other reasonable cause OR STATE that Judgment is VOID b/c lack of per jur |
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[Termination w/o Trial - Involuntary Dismissal]
What is Involuntary Dismissal, and when is it granted? 19 |
It's when one side fails to prosecute action w/ reasonable diligence
In NJ, this is w/o prejudice In federal ct, an involuntary dismissal is treated as an adjudication on the merits |
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[Termination w/o Trial - Voluntary Dismissal]
What is required for a Voluntary dismissal? 19 |
If BEFORE answer filed: any time
If AFTER answer is field: With ct's permission or with opp party's consent |
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[Termination w/o Trial - Summary Judgment]
Test for summary judgment? 19 |
-No genuine issue of material fact
-Movant is entitled to judgment as a matter of law (No legally sufficient evidentiary basis) |
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[Trial by Jury - Right to Jury Trial]
For what types of civil claims does a person have a right to jury trial, and what claims does a person not? 19 |
Legal claims = jury
Equitable claims - No jury |
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[Trial by Jury - Right to Jury Trial]
What is the "equitable clean-up doctrine"? 20 |
Court in equity may decide any ancillary legal claims w/o a jury WITHOUT VIOLATING the right to jury trial
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[Trial by Jury - Right to Jury Trial]
When must a trial demand be made by? 20 |
W/i 10 days of original pleading
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[Trial by Jury - Right to Jury Trial]
How many jurors are required in a civil action? How many must find for the P for the P to win? 20 |
6 civil jurors
only 5/6 in NJ (federal 6/6) |
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[Trial by Jury - End-of-trial and Post-trial motions]
What is the test for NJ's Directed Verdict (called Judgment as a matter of law in federal ct) 21 |
No legally sufficient basis for a reasonable jury to find for the non-moving party
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[Trial by Jury - End-of-trial and Post-trial motions]
What is the prerequisite for asking for NJ's JNOV (judgment notwithstanding the verdict --- called renewed judgment as a matter of law in federal ct)? 21 |
Previously asked for directed verdict
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[Trial by Jury - End-of-trial and Post-trial motions]
What is the test for NJ's JNOV (judgment notwithstanding the verdict --- called renewed judgment as a matter of law in federal ct)? 21 |
Same standard as directed verdict:
No legally sufficient basis for a reasonable jury to find for the non-moving party |
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[Trial by Jury - End-of-trial and Post-trial motions]
What other motion will a party typically make at the same time as JNOV? 21 |
Motion for new trial
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[Trial by Jury - End-of-trial and Post-trial motions]
What's the test for granting a motion for new trial? 21 |
Jury's finding is against the manifest weight of the evidence
Ct cannot merely substitute its judgment for that of the jurors |
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[Trial by Jury - End-of-trial and Post-trial motions]
What's the difference b/w a JNOV motion and motion for new trial? 22 |
JNOV:
-Reviewed de-novo -Immediate judgment New Trial -Less extreme -Only results in new trial |
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[Trial by Jury - End-of-trial and Post-trial motions]
Does NJ have remittitur, additur, or both? 22 |
both
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[Judgment - Generally]
When is a judgment rendered? 22 |
Judgment does NOT exist under formally entered by the court or clerk
(NOT just b/c jury says so) |
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[Judgment - Motion for Relief]
When may a party be relieved from final judgment? 23 |
-Mistake, neglect
-Newly discovered evidence -Fraud -Judgment has been satisfied -Judgment is void b/c lack of per jur |
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[Future Effect - Claim Preclusion]***
What is NJ's term for claim preclusion? 23 |
the "entire controversy doctrine"
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[Future Effect - Claim Preclusion]
What does the "entire controversy doctrine" rule? 23 |
ALL parties that ARE joined to an action (no one HAS to join any parties except if indispensable party), MUST assert ALL claims they may have about the same transaction/occurrence (can't save for a later trial -- take care of all of it NOW)
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[Future Effect - Issues Preclusion]
What rule does NJ follow for issue preclusion? 24 |
Does NOT require mutuality
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[Future Effect - Issues Preclusion]
What TYPE of issue preclusion does NJ therefore allow? 24 |
Allows for OFFENSIVE issue preclusion
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[Future Effect - Issues Preclusion]
What is OFFENSIVE issue preclusion? 24 |
When one "P1" sues D and P1 wins, P2 -- who was in the same transaction/occurrence, CAN ALSO sue D, and preclude D from re-litigating, and P2 will also win
BUT, this requires: -Same T/O -D fully litigated against P1, and had every reason to protect his interests |
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[Injuctions]
When are Temp. Restraining Orders (TROs) issued? 24 |
-For emergency situations
-Done with ONLY ONE PARTY (both don't have to be there) TEST: -Irreparable injury, loss, or damages -Likelihood of success on the merits |
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[Declaratory Relief]
When is declaratory relief used? 25 |
To determine the scope of rights & obligations (requires clear threat of suit)
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[Declaratory Relief]
If declaratory relief is appropriate, what other type of pleading is also appropriate? 25 |
Interpleader (party would otherwise be subject to multiple inconsistent obligations)
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[Appellate Review]
First step in appellate analysis 26 |
Was issue preserved for appeal through objection
NOTE: there is an exception for 'plain errors' for fundamental rights |
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[Appellate Review]
What type of rulings are subject to de novo review? 26 |
Legal rulings (sum jud, JNOV, etc.)
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[Appellate Review]
What type of rulings are subject to abuse of discretion review? 26 |
Discovery issues
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[Appellate Review]
What type of rulings are subject to a "clearly erroneous" standard? 26 |
Factual findings
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[Appellate Review]
What is the last step in any appelate review analysis? 26 |
Whether, even if there was error, the error was nonetheless not outcome determinative, and therefore constituted harmless error
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