Term
| What type of information is discoverable under the relevent standard? |
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Definition
| A party is allowed to obtain evidence to support or negate issues in the case, not allowed to create new issues through discovery. It has to prove what you have claimed or what your defenses of the case are. |
|
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Term
| Does information that is relevent to the claims and defenses need to be admissible as evidence? |
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Definition
| No, you can use heresay information and stuff that might not be admissible at trial. |
|
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Term
| A problem with the old terms "relevent to the subject matter" (rule 26B) |
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Definition
| you had to give the party favorable and unfavorable information under the old standard. |
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Term
| The word THAT in information "that" the party may use, does this apply to information the parties have that you may use or does it refer to individuals. The word THAT refers back to witnesses and not to information. |
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Definition
| If you are not going use a witness then you DON'T have to disclose them in the initial disclosures. |
|
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Term
| What does the term USE mean? Use it when? Public use or use it in your head to help you with your background in the case? |
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Definition
| If you are going to "use" the information you have, "use" means public use. Only disclose things in early disclosure that you will "use" public use. |
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Term
| The exemption for initial discovery under impeachment give example. |
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Definition
| The witness says he heard other witness say something different than what he did say, this witness information goes to impeaching the other witness, not to the claims and defenses in the case, so the witness does not need to be disclosed in early disclosure. |
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Term
| After a deposition, the person can review the transcript and change it, what is the effect of doing this? |
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Definition
| If they say something, then change it when they read the court reporters file, you can use it to point out there inacuracies and make them look bad in court. |
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Term
| What are the three questions you always ask when you are tyring to subpoena a non-party for a deposition. |
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Definition
| What court has to issue the subpoena? How far can you make the witness come for a deposistion? Where can a subpoena be served? |
|
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Term
| how do you get an interroagatory to the other side? what does rule 6d have to do with this? |
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Definition
| Rule 33, mail them. Rule 6D, if you mail something you have to add 3 days time for the mail. |
|
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Term
| What court has to issue the subpoena under rule 45. |
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Definition
| The district court where the deposition is going to take place. |
|
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Term
| How far can you make the non-party witnesses come for a deposition under rule 45? |
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Definition
| 100 miles from where the witness resides, regularly transacts business or is employed. |
|
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Term
| Where can a subpoena be served? 45B2 |
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Definition
| Anywhere in the district where is was issued or within 100 miles of where it is going to take place. |
|
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Term
| How do you keep track of what documents you've sent to the other side? |
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Definition
| You can number the documents |
|
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Term
| how may days do you have to repsond to a request to produce? |
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Definition
| 30 days (+3 if by mail). This is just to respond not for actually, |
|
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Term
| What is the presumptive limit on interogatories? |
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Definition
| 25, but more may be granted by the court. |
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Term
| A party has 30 days to object to a request for documents and a non-party has 14 days to object to subpoena duces tecum. (non-party gets treated worse). |
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Definition
| You can serve a subpoena on a party if you want to get the documents faster! they have 14 days to object rather than 30 days to respond. Fabulous |
|
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Term
| 26A1 - does not require disclosure of FACTS (t / f) |
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Definition
| True, person, documents, calculations (not facts). You get facts through interrogatories rule 33 |
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Term
| If you want documents from a party what do you do and what rule? |
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Definition
| Rule 34, send a request to produce. For a non-party you send a subpeona duces tecum under rule 45. |
|
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Term
| how do you take the deposition of someone that works for a company? |
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Definition
| Rule 30B6 you can depose a business and they have to designate one or more officers who consent to testify on their behalf. A knowledgable person (can be anyone the business wants to testify on their behalf including their attorney). |
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Term
| 45 C3 if you are a party, you can be compelled to go more than 100 miles for the trial and anywhere in the state. What about non-witness? |
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Definition
| A non-witness can say..the burden and expense of me going more than 100 miles is to great, please squash the subpoena. Then they don't have to go! |
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Term
| What are the three questions for subpoena to a trial? |
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Definition
| What court issues? District where it will be held. Where served? Anywhere in the central district, or anywhere within 100 miles of where it will be held. If there is a state statute that allows the distict to serve anywhere in the state, then the federal court can do this as well. This is how trial's differ from depositions. How far? party - anywhere in that district. non-party - anywhere in that district or they can object. |
|
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Term
| what are the steps to follow under Zubulake if you are an attorney representing the party who may have edocs. |
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Definition
| 1. litigation hold 2. find out who the key players are and how the information is stored 3. recommunicate the litigation hold through out the process. |
|
|
Term
| An interrogatory – is signed by the party and becomes a sworn statement and can be used as evidence at trial. |
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Definition
|
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Term
| You can use a deposition of a party or an adverse party at trial when? |
|
Definition
| at anytime, anywhere, for any purpose as long as it complies with the rules of evidence. |
|
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Term
| when can you use a deposition of a non-party at trial? |
|
Definition
| If they would have to travel over 100 miles to come (even though they may have to travel further if you were to subpoena them to come to trial). |
|
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Term
| the hickman rule exists side by side with rule 26b rule and is still good law? |
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Definition
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Term
| If a party asks in an interogatory where any statements taken and there were but the attorney took them. |
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Definition
| Attorney taking them does not mean that you can claim work privilege, you have to answer the interrogatory yes... statements taken. |
|
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Term
| can you send a requst for production to the parties asking for a copy of the witness statements if your attorny was the one that took them? Hickman, supose you show you need the documents, what device do you use here? |
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Definition
| How do you make an attorney come to a deposition? (he is ia non-party) Use a subpoena duces tecum if you want the attorney to come to a depo and bring documents. An attorney is not a party to the litigation, if the attorney took the statements, you have to serve him. Now you probably just serve a production of docs and the attorney would have to bring produce the docs. BUt you can't get an attorney to come to a deposition, only the people, an attorney is a non-party. |
|
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Term
| what does hickman stand for? |
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Definition
| material prepared by an attorney in anticipation of litigation is protected. except when the party making the request shows necessity for that material (tangible stuff). Mental recolections, (interview with persons where there were no notes taken, or an auto accident where the attorny goes to the scene of the accident and makes observations) in anticipation of litigation, these recolections are not discoverable period. hickman applies to attorney's an no body else. tangilbe stuff and intangible stuff. The court used the standards of rule 26 for the basis of the decision of hickman (work product not discoverable). this encourages the attornies to be industries and do their own research! it doesn't protect things GIVEN to the attorny, you don't turn it into work product by giving it to the attorney. |
|
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Term
| what is not protected under 26 B3? that is protected under hickman. |
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Definition
|
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Term
| 26 B 3 is broader than hickman because it protects things prepared in anticipation by who? |
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Definition
| parties, officers or anyone (hickman is just attornies). wider group of people and a narrow group of materials. necessity of the case and inability to get it from somewhere else (exception to 26b3) Even if the exception applies, the court needs to be careful under 26b3 to protect the attornies or representatives mental impressions (but you don't find the word parties mental impressions) so mental impressions of a party can still be turned over under the exception but not the mental impressions of the attorney. |
|
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Term
| if a witness asks you for a copy of there statement so they can give it to the other party, but it was prepared in anticipation for litigation then what? |
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Definition
| you have to always give a party a copy of their statement. |
|
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Term
| suppose you are in federal court sitting in the state of PN and the PN court allows you to discovery more than what 26b3, what happens? |
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Definition
| It is a rule of federal civil proceedure, it is on point and in conflict with the state law.. the hickman and 26 B3 will be used ALWAYS ALWAYS. |
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Term
| WHAT IS ABSOLUTELY PROTETED FROM DISCOVERY? AND WHAT IS CONDITIONALLY PROTECTED. |
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Definition
| THE MENTAL IMPRESSIONS, OPINIONS CONCLUSIONS AND LEGAL THEORIES OF AN ATTORNEY. ALL OTHER EVIDENCE IS CONDITIONALLY PROTECTED. |
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Term
| THE TEST WHETHER A PERSON IS AN EXPERT OR NOT AND IF YOU NEED TO DISCLOSE THEM. |
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Definition
| actors or views of the occurences that give rise to the suit - these are experts who are parcipiant witnesses. YOU HAVE DISCLOSE THE PARCIPIANT INFORMATION AT THE PRETRIAL DISCLOSURE FROM YOUR EXPERT (COULD YOU GET IT WITH OUT HIRING HIM) AND YOU CAN DISCLOSE THE EXPERT PART OF IT 90 DAYS BEFORE TRIAL WITH THE EXPERT DISCLOSURE 26a2. |
|
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Term
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Definition
| 30 DAYS BEFORE TRIAL AT THE PRETRIAL DISCLOSURES. What if the poeople came up with a new witness that they didn't disclose in the early or supplimental disclosures? You better have a damn good reason or you not going to get to get to use the person at trial. |
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Term
| 26a1 applies to parcipiant witnesses you may use at the trial |
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Definition
| treating doctor at the hospital (what did you see when they came in?) Gas pressure valve case |
|
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Term
| at the time of early disclosure, you do not have to disclose expert disclosures as a part of early disclosures, what must you disclose at the expert disclosure? |
|
Definition
| 26A2 a report, reason for the opinions, infomation the person used in forming the opinion, cases the lawyer has testified at for the past 4 years. (what else would you want to know that they don't give you, what if the case is settled? You don't find out about all the reports that the expert made but didnt take to trial.) What if he used but did not rely on it, info that you USED not relied on. work product you give to the expert will be disclosed (true). |
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Term
| how much time does a party have to come up with an expert to rebut the expert you have disclosed? |
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Definition
| 30 days to get a witness prepared, report made and reported to the other party. |
|
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Term
| what are the four types of experts under ager. Question in Ager was could anyone find out about the experts that were retained but not used. 26b4b - doesn't say you can't get the NAME of expert witnesses just the opinion or facts. The court decided the could not get the names of those witnesses why? unless it is impracticable for the party to get experts of there own. If you can't get the names, how are you doing to make a case for the exception? If there are only a few experts, maybe everyone you call says.. I've been contacted by the other side sorry.(thats a way for you to find out if they have been retained buy not used) if you revealed these parties names, there might be fewer experts willing to consult, experts don't want their names out their. |
|
Definition
| 1. experts the party retained and expects to use at trial 2. retained but not expected to be used. 3. not retained but informally consulted decided not to use him. 4. people not employed (expertise)they are already experts in the field (not retained or paid) if you may use that person you better disclose them in your early disclosures. |
|
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Term
| why don't you let people opt out of a b1 class action? |
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Definition
| inconsistent results - don't know how to conduct them selves on a going forward basis this would defeat the purpose of inconsistent results. |
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Term
| pretrial disclosures when and what? |
|
Definition
| 26a3 30 days before trial (witnesses 2 kinds, ones you expect to testify and one that may testify at trial (these all better have been on early disclosures 26a1 or supplimental 26e). 2. designation of those witnesses who the party expect to give by deposition and if not taken stereographically, a transcript of the pertinent parts. (if it is on video you have to give the pertinant parts) despite the words in this rule, you have to designate all the importanat parts of any deposition no matter how it is taken. 3. identification of documents we expect to offer and ones we may offer. (these better be a part of early disclosures or supplimental or everybody knew the doc was out there). |
|
|
Term
| when you don't want to turn something over and claim a privilege, what do you do? |
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Definition
| Claim the privilege under 26B5 "expressly make the claim, I'm claiming work product privilege" and describe the documents them selves with out revelaing what is in the document (enough for them to assess the claim). What happens if the other party turns over a privileged doc to to you? you better notify them and follow rule 26B5B. |
|
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Term
| how do you make a motion to terminate or limit the examination. |
|
Definition
|
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Term
| objecting to answer based on rule 30 c doesn't include exceeding the scope, what do you do and what does 30 c cover? |
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Definition
| objection may be made on the grounds that 1. preserve privilege 2. enforece a court order 3. make a motion under 30d3. |
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Term
| 26g is a hide the ball sanction rule as in phisans. what is the point of phisins? |
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Definition
| where there is a signature of an attorney, and a hide the ball, you can also get more than attorney's fees, this is a special rule for discovery sanctions and violations. |
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Term
| rule 11 does it apply to discovery sanctions? No why? |
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Definition
| it doesn't apply to discovery, only to the attorney failing to sign or provide information, certifications, they believe those certain things after a reasonable inquiry. |
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Term
| 26 g doesn't cover all circumstances, what doesn't it cover? |
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Definition
| the attorny's representing either party in a deposition doesn't sign anything so there is noting to apply the rule 26g concept to. This doesn't apply to when the other party just completely fails to respond to a discovery request period (discovery offenses). |
|
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Term
| when you bring a slow boat motion, all you can get is your attornies fees for bringing the order and an order to compel. |
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Definition
|
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Term
| what are your three choices when a court compells discovery? |
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Definition
| 1. produce it or not produce it. If you don't produce it the court can a. hold you in contempt, contempt orders are appealable while an order compelling discovery is not. |
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Term
| What are the reasons you can object to a person answering a deposition question? |
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Definition
| Rule 30c2 three things, privilege, enforce order of the court, or to make a 30d3 motion. |
|
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Term
| What are all the things that a party must give in intial disclosure? And when are they due? |
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Definition
| names of witnesses you may use, doc, tanglible things, computations, insurance claims. 14 days after the 26 f conference. |
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Term
| What are unacceptable excuses for not complying to initial disclosures? |
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Definition
| If you could have found it out, you are liable for it, failure to investigate information that was then reasonably available not an excuse. |
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Term
| no sanctions under 37 for lost e docs due to routine good faith operation. |
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Definition
|
|
Term
| 30c2, don't answer the question in a "suggestive way" or what is the sanction? |
|
Definition
| Don't do that again attorney.. bad boy. |
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Term
| What happens when 30 days goes by and they didn't respond to a discovery request what do you do? You not going to get serious sanctions if the party was just late or forgot, you can call them (if it was curable) and meet and confer. What types of offenses are not curable? |
|
Definition
| if they forgot to suppliment witnesses or documents (then they try to bring them in at trial) not curable. Failure to admit - is not curable, if they don't admit something, you can't change your answer. |
|
|
Term
| when do juries decide questions of law? |
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Definition
|
|
Term
| What type of law does a Jury decide? |
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Definition
| QUESTION OF LAW, Questions of fact when there has been a waiver of right to jury trial or when no right to jury trial. |
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Term
| to the extent a jury trial is required in a state trial it is because of two things. |
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Definition
| a state statute says so or if a state is hearing a federal issue is litigated in the state court and the statute under which that federal rule arises requires a jury trial, then you get the jury trial in state court. |
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Term
| The 7th amendment is not applicable to the states via the 14th amendment right? |
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Definition
| Right.. there are 10 amendments that are applicable to the states. |
|
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Term
| 6th amendment - in all criminal prosecutions the accused shall enjoy a speedy trial w/ jury. 7th in cases at common law the right to a jury trial shall be perserved. (you look back to see if as of 1791 in England, you look back to see if it was in equity or law court. |
|
Definition
| right, also art 3 sec 11 mentions jury trials. |
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Term
| Legal or Equitable claim? |
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Definition
| Contract breach, negligence, (damages) jury gets to determine facts. Duty of fair representation look at the nature of the issues or rights being asserted in the case and the nature of the remedies in the case. This is how you tell if it should be tried to a jury or a judge. |
|
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Term
| the right of a jury trial is waivable how? |
|
Definition
| If you don't assert your right to a jury trial in a timely manner. A jury trial right belongs to both defendant and a plaintiff. |
|
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Term
| how do you tell if a claim is equitable or legal? |
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Definition
| Look to the underlying claim to determine the nature of the action. Declaratory relief action (equitable action), paton holder says.. patent is invalid he says and he wants. If it is a breach of a patent = jury trial, if it is interpretation of a patent = no jury. Dirivitive action done the same way. seek out the underlying claim. |
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Term
| dairy queen case stands for two things. |
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Definition
| the notion that some remedies that were thougth to be equitable in nature will be legal if the underying claim is legal claims. AND if you wind up with legal claims and equitable claims in the same case, the legal claims will always get tried first because issue preclusion, the decision of the judge on the equitable may deprive the party of a right to a Jury trial so we do legal claims first. |
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Term
| if the underlying claim in a "abate a public nuisance" says that fines shall be assessed up to 10million per day is this jury or no jury? |
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Definition
| Tull case, this fine is a penalty assessment, penalties were historically legal so you get jury. |
|
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Term
| congress has power to pass out jurisdiction .. arising under, diversity, CAPA.. maybe congress can choose the jurisdiction of the courts to hear jury trials. |
|
Definition
|
|
Term
| how do you attack a jury question? |
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Definition
| 1. was the claim around in 1791? SWA most like a negligence claim. 2. if no then what is it most analagous to? |
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Term
| rule 12 motion you can introduce evidence? |
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Definition
| no, solely on the pleadings, if you sneak evidence in it is converted to a rule 56. Rule 12, you take all the allegations as true and say.. plaintiff can not have a claim becuase the complaint can not be supported by the evidence presented in the pleadings. |
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Term
| motion for summary judgment evidence comes from. |
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Definition
| 1. affidavits 2. sworn pleadings in the case (it will never likely involve live testimony) all the discovery tools can be submitted. |
|
|
Term
| what are the three ways to despose of a case before it gets to a jury? |
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Definition
| 1. summary judgment rule 12, 2. summary judgment with evidence rule 56, ?? |
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Term
| you can move for summary judgment on all or part of a claim |
|
Definition
|
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Term
| you can rely soley on the sworn pleadings to move for summary judgment. |
|
Definition
| true, don't have to have affidavits |
|
|
Term
| who can move for summary judgment? |
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Definition
| any plaintiff (20 days after you file a complaint) or defendant (at anytime). |
|
|
Term
| What is the standard for granting a motion for summary judgment. |
|
Definition
| If there is no genuine issue of material disputed fact, (critical to plaintiffs claim or critical to defendants defense). |
|
|
Term
| what is the test to determine if there is a material issue of genuine fact? |
|
Definition
| Could any reasonable Jury find that material fact in support of the party against whom the summary judgment is sought. If a reasonable jury could find that fact in support of the party of whom summary judgment is sought, NO Summary Judgment is granted. |
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Term
| in the state court, if you establish there is a material fact, you start over on all the issues. How is federal court different? |
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Definition
| Federal court, if you have established 4 of 5 elements on a breach of contract and the 5th element, there is an issue of material fact, all that will be addressed is that one issue, SJ granted on the rest of them. |
|
|
Term
| burden of proof can be three things |
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Definition
| perponderance of the evidence, clear and convincing and beyond a reasonable doubt (criminal) civil case that is similiar is no reasonable jury could find otherwise. |
|
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Term
| if the moving party carries the burden of proof, this is what type of movement? |
|
Definition
| Offensive summary judgment. |
|
|
Term
| when the moving party does not carry the burden of proof |
|
Definition
|
|
Term
| How does the responding party respond when they are responding to an offensive summary judgment. |
|
Definition
| the defendant or the responding party can respond by calling into question the evidence submitted by the moving party, the judge can say.. let the jury decide the credibity. |
|
|
Term
| A party opposing summary judgment can not just say look at my answer. |
|
Definition
|
|
Term
| where there are competing inferrences in the evidence, you draw the inferrence in favor of the responding party. |
|
Definition
|
|
Term
| what is decided at the time a motion for summary is decided? |
|
Definition
| if there is no material dispute, questions of law are decided, what facts are we going to have left in this case. |
|
|
Term
| the moving party has the initial burden of production |
|
Definition
|
|
Term
| a moving party that does not carry the buden of proof can win a motion for summary judgment in 2 ways |
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Definition
| 1. completely negate an essential element of the defendants case. (addickies said there was some unexplained gaps in the proof so moving party didn't get to first base.) 2. if you are the moving party making a defensive motion, you better make sure you negate all of the essential elements of the plaintiff's case or you won't win. |
|
|
Term
| what happened in motsichita? |
|
Definition
| plaintiff's claim or theory of the case was implausible. moving party was defendant, responding party was manufacturers. moving party had the burden of production, if the responding parties story is implausible, then the responding party must come up with more evidence than before to support their claim. The responding party must produce enough evidence to overcome the implausibility of its case. |
|
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Term
|
Definition
| if the plaintiff's case is weak, we will dismiss it now and not wait. |
|
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Term
|
Definition
| defensive motion by defendant against plaintiff who carried the burder of proving defendant acted with actual malice. Anderson |
|
|
Term
| the party making the motion (moving party) has the initial burden of production. |
|
Definition
| must produce enough evidence that a reasonable jury could find for that party. (same for defensive or offensive) then the burden shifs to the responding party.. the difference is, a responding party can attack the credibility of the evidence presented by the moving party if the SJ was an offensive motion. The responding party has to come forward still with facts pointing out the weakness of the credibility. "don't believe a word they say" is not facts. "the only affidavit the party has was by a purjery person" facts. Anderson held plaintiffs burden of prroof line was less than clear and convincing so the the moving party on a defensive motion had to push even further past that line with the initial bop. |
|
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Term
| Always ask, what is the disputed or non desputed material fact? Celotex |
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Definition
| defensive motion (moving party submitted in support of BOP, celtex didn't submit any affidavits, they sent an interrogatory to the plaintiff and asked to identify any witnesses the plaintiff has with information about your exposure to asbestos. (plaintiff answered and said I have no one.) defendant celotex had the initial burden of production and presented the interogatories. a party who doesn't have the burden of proof that is the moving party can attack the other party by negating an essential element of the other parties case (addickies) OR like in celetex the moving party just pointed out that the other party wouldn't be able to meet their burden of proof (pointed out the interogatories). celetex was just pushing the line back you have no witnesses (look at my interogatory) so the ball is back in your court. look at 56 a or 56e2 with or with out affidavits (an interogatory response is sufficient for a party to meet its burden of production). |
|
|
Term
| who had the initial burden of production, who had the burden of proof, did the moving party meet the burden of proof, did the responding party meet their burden of proof? |
|
Definition
| DId they get the inforamtion into the reasonable jury area. |
|
|
Term
| motion to dismiss rule 12, 56 paper motion summary judgment with evidence. plaintiff can file 20 days after submit claim and def can at any time. A party can make a motion for jmol only after the other party has presented all its evidence. |
|
Definition
|
|
Term
| after the case is submitted to the jury, if you didn't make a jmol motion you can't make a jnov motion, this is a renewal of the jmol motion. |
|
Definition
| any denial of a jmol is subject to review later. as a jnov. |
|
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Term
| the standatd for granting a jmol motion is the same as SJ |
|
Definition
| 1. there is no evidenciary basis that a reasonable jury could find for the _____. The plaintiff's job here is sorta like meeting a burden of production. It must produce enough evidence that a reasonable jury could find for it. One of the parties must move for the jmol, judge can't do it on his own and the parties must specify the grounds for the jmol. I move for a judgment of law becuase no reasonable jury could find for the plaintiff because there are no damages. |
|
|
Term
| you have to make a jmol motion on certain grounds and you can only make a jnov motion later on the same grounds. |
|
Definition
| true! contract consideration verses damages, two separate grounds! |
|
|
Term
| jmol can be grated with respect to a claim, defense, all or part of these, must be made before case is submitted to jury and specify what grounds. |
|
Definition
| you have 10 days after the judgment to renew the jmol as a jnov (if you don't do it you probably commited malpractice.) judge can (when you request the jnov motion) deny it and let the juries verdict stand, order a new trial or grant the jnov (jury was wrong, I'm going to grand jnov) wiat judge you have to also grant a conditional motion for a new trial. Just in case the court of appeals disagrees with you judge granting me the jnov, I want a conditional new trail as a back up plan! : ) |
|
|
Term
| interpretation of a contract or patent is an equitable claim, whether it has been violated or infringed is a legal claim and demands a jury. |
|
Definition
|
|
Term
| you take the jury with all of their opionins and prejudices. |
|
Definition
| jury going out and doing own investigation, not cool. |
|
|
Term
| the grant of a new trial are based on what? |
|
Definition
| The test for new trial is whether the finding of the jury with respect to the ??? is against the great weight of the evidence, test for jnov, is no reasonable jury could find. the question about who's lying should be a jury questions so the judge will sometimes not grant a jnov but will grant a new trial. |
|
|
Term
| RS judgments used in federal courts. |
|
Definition
| single transaction or series of related transactions |
|
|
Term
| what are the four different claim rules |
|
Definition
| SWA single wrongful act, all evidence rule, primarty rights act. |
|
|
Term
| what is an example of when parties will be in privity with each other for claim preclusion? |
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Definition
| executor - estate, trustor - beneficiary - previous landowner, new land owner. |
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Term
| Valid final judgement on the merrits? does the court have pj and sj? |
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Definition
| when judgment is entered, even if the appeals haven't been exhausted. |
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Term
| what happens if B wins case against A, A sues B on second suit and B assets claim preclusion and case is dismissed, Then A wins the appeal on the first case? What can A do. |
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Definition
| A can reinstate the claim |
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Term
| day one personal injury is filed, day 5 second action is filed. What should B do? |
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Definition
| A DEFENDANT SHOULD FILE A NOTICE OF ACTION PENDING REGARDING THIS CLAIM, EVEN IF ONE IS IN STATE AND ONE IS IN FEDERAL. THE COURT WILL STAY THE SECOND ACTION WHERE THE DEFENDANT IS A PARTY. |
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Term
| A V. b FOR PERSONAL INJURY, a RECOVERS 100000 DOLLARS, b DOESN'T HAVE ANY MONEY IN THAT STATE, WHAT CAN A DO? |
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Definition
| A FILES AN ACTION ON THE JUDGMENT IN ANOTHER STATE. HE IS NOT PRECLUDED FROM DOING THIS.. THESE ARE TWO SEPARATE CLAIMS. |
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Term
| A V. B ( A WINS 100000 AGAINST B IN CALI) B SUES A IN NY FOR BREACH OF A SEPARATE CONTRACT A WANTS TO ASSERT A COUNTERCLAIM IN THAT CASE, CAN'T DO IT CAUSE THE PERSONAL INJURY HAS ALREADY BEEN DECIDED. BUT A CAN ASSERT THE JUDGMENT AND SAY B OWES ME 100000 DOLLARS SO MY PAYMENT SHOULD BE REDUCED. |
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Definition
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Term
| wHAT ARE EXAMPLES OF JUDGMENT ON THE MERRITS? WHAT IS NOT? |
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Definition
| JURY VERDICT, TRIAL, SUMMARY JUDGMENT, DIRECTED VERDICT, DEFAULT, DISSMISSAL W PREJUDICE, DISSMISAL FOR DISCOVERY ABUSE, DISMISSAL FOR FAILURE TO PROSECUTE . NOT? DISMISSED ON 12B6 IF DISMISSED WITH PREJUDICE. |
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Term
| RULE 41 B. WHAT ARE FINAL JUDGMENTS ON THE MERRITS? WHAT IS NOT? |
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Definition
| A DISMISSAL FOR FAILURE TO PROSECUTE IS CONSIDERED TO BE ON THE MERRITS, A DIMISSAL FOR FAILURE TO COMPLY WITH THE RULES IS ON THE MERRITS, DEFAULT JUDGMENT (FAILING TO SHOW UP) ON THE MERRITS. 12B6DISSMISAL W/ PREJUDICE not- VOLUNTARY DISMISSAL UNDER 41A IS NOT ON THE MERRITS AND LACK OF PJ, VENUE, FAILURE TO JOIN OR DISMISSAL W/OUT PREJUDICE. FILING AN ACTION PREMATURELY IS JURISDICTIONAL DISMISSAL. ACTION THAT GETS DISMISSED FOR FAILURE TO FILE AN AFFIDAVIT OF MERRIT?? JURISDICTIONAL. |
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Term
| A V. B IN FED COURT B FILES A 12B6 MOTION, COURT GRANTS, 30 DAYS LEAVE TO AMEND W/OUT PREJUDICE. A HAS A CHOICE DO I AMEND OR DON'T I. |
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Definition
| IM NOT GOING TO AMEND MY COMPLAINT, IM GOING TO GO FILE IN ANOTHER STATE WHERE PEOPLE ARE MORE FREINDLY, DOESN'T AMEND. B NOW ASSERTS CLAIM PRECLUSION AGAINST A'S NEW COURT, DOES B WIN? B WINS BECAUSE A HAD 30 DAYS LEAVE TO AMEND IN CALI AND DIDN'T DO IT, WHEN THE 30 DAYS GOES BY CASE GETS DISMISSED W/ PREJUDICE (NOT A DEFAULT), BECAUSE IT GOT DISMISSED WITH PREJUDICE, A IS PRECLUDED FROM BRINGING THAT CLAIM AGAIN IN NY. (SAME THING) BUT BEFORE THE 30 DAYS EXPIRES, A VOLUNTARILY DISMISSES THE COMPLAINT UNDER RULE 41A, ANYTIME BEFORE THERE IS AN ANSWER ON THE CLAIM, A PLAINTIFF CAN VOLUNTARILY DISMISS THE CASE UNDER 41A. PROBLEM SOLVED. THE POINT IS, A DISMISSAL W/ OUT PREJUDICE CAN BECOME W/ PREJUDICE IF A DOESN'T DO WHAT HE IS SUPPOSED TO DO. |
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Term
| CLAIM PRECLUSION CAN BE WAIVED. ITS AN AFFIRMATIVE DEFENSE, IF YOU DON'T ASSERT IT TIMELY (AT THE FIRST OPPORTUNITY) YOU MAY HAVE BEEN DEEMED TO WAIVE IT. |
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Definition
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Term
| A V. B PERSON INJURY ON DAY 1, A V. B ON DAY 5, SAME CLAIM, B HASN'T FILED ANYTHING (NOTICE OF OTHER CLAIM PENDING) WHAT IS THE EFFECT? |
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Definition
| IF YOUR A DEFENDANT, AND YOU THINK THAT THIS ACTION SHOULD NOT BE PROCEEDING, YOU SHOULD HAVE NOT CONSENTED OR YOU MIGHT NOT GET CLAIM PRECLUSION. |
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Term
| A V. B IN FED CT. PERSONAL INJURY, BEFORE A OBTAINS THE JUDGMENT FOR PD IN NEVADA. CAN B ASSERT CLAIM PRECLUSION? |
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Definition
| NO, BUT HE CAN GIVE NOTICE OF OTHER CASE PENDING AND NOT CONSENT TO HAVING TWO ACTIONS GOING ON AT THE SAME TIME. |
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Term
| WHAT IS THE EFFECT OF NOT SERVING A COMPLAINT WITHIN THE TIME REQUIRED TIME IN A STATE COURT IN THE FIRST ACTION? |
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Definition
| IT WOULD DEPEND ON WHAT NEVADA SAID WAS THE EFFECT OF NOT SERVING IT IN TIME. (IF YOUR IN FEDERAL COURT FIRST, NOT AN ISSUE 41B SAYS INVOLUNTARY DISMISSAL) BUT FED COURT MUST LOOK TO STATE COURT RULES TO SEE WHAT THEY WOULD DO. |
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Term
| A V. B CALI A asserts pI basis is negligence. B says I wasn't and A was negligent. (no counter claim) B sues A in Cali for same thing. PI (first claim decided and A won) claim preclusion? |
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Definition
| B used as a defense that A was negligenct (but he didn't bring it as a counterclaim) most jurisdictions say defending on a claim is like bringing it in a cliam and B would be precluded from the second action. Rule: asserting as a defense is like bringing a claim for claim preclusion. it also depends on how Cali treats the use of neg as a defense. |
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Term
| the federal court in a diversity case looks to the state preclusion law and applies the law of what ever state that court sits in. |
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Definition
| TRUE daucher.. the first mistake he made all year. |
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Term
| RS judgments 15 if two judgments entered on the same claim. in two actions then what one do they follow? |
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Definition
| If B allows the second claim to go to judgment, B has waived it so they follow the case number 2 rulling instead of number 1 case. |
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Term
| section 26 RS judgments consent. |
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Definition
| if A sues B and that case if moving along and in the second suit B doesn't raise the objection, he waives it. If your a defendant... you have to provide notice of other action pending objection. File it in the second action, not the first one! The second court will stay the proceedings until the first case is settled. |
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Term
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Definition
| A brings an action against B for PD, got judgment, then finds out he was hurt, second action will be precluded. What can A do to avoid not being able to bring the claim when he later gets evidence? You can WAIT, don't bring the Property damage claim until later when you see if you are hurt. / |
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Term
| New evidence, new remedies, new grounds, new theories do not give rise to new claims! |
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Definition
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Term
| If the defendant wins a case, it will be assumed that every ground the plaintif raised against the defendant was litigated, decided and essential. |
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Definition
| A defendant will not be assumed to raise every single defense the party has. Defendant only needs to win on one issue. |
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Term
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Definition
| where a jury comes back and finds for one party or another with out stating the reason. IN an auto case A. v. B. B defends on the grounds that B was not negligent, A was cont. negligent. Jury finds for B. General verdict doesn't say which issue was essential to the case. Specific verdict says what grounds they were negligent on. |
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Term
| Rule 60 B, I have new evidence |
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Definition
| Have to show that the evidence could not have been discovered at the original trial, may I reopen the case? |
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Term
| how do you decide if the decision was essential to the judgment? |
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Definition
| Could they appeal from the judgment? If not then it wasn't essential, could the court have decided the same verdict and rule the opposite on that particular claim or defense? If yes then it wasn't essential to the judgment. |
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Term
| A party who has not had there day in court actually or constructively will not be precluded from bringing the issue. |
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Definition
| True! non mutual issue preclusion, Identity of interest, adequacy of representation, control of the litigation, were they in cahoots, relationship, could they have easily joined? Someone who settles to avoide the preclusive effects of case #1 would probably be precluded from bringing the issues again. |
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Term
| what are the factors you look at for issue preclusion? |
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Definition
| 1. Is it the same issue 2. Was it actually litigated 3. acutally decided 4. valid final judgment 5. essential to the judgment. |
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