Term
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Definition
| Federal courts can only hear cases that arise out of diversity of citizenship OR federal question |
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Term
| Diversity of Citizenship (Subj matter jdx) |
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Definition
The case is either between
(a) “citizens of different states” (diversity) OR
(b) “a citizen of a state and a citizen of a foreign country” (alienage)
AND
The amount in controversy exceeds $75,000. |
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Term
| Citizens of different states (Subj matter jdx) |
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Definition
| Complete diversity rule - all the pl and all the def must be citizens of different states |
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Term
| Citizenship for individual (Subj matter jdx) |
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Definition
State of domicile
- Presence in state AND
- Intent to make it her permanent home
**Only one domicile** |
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Term
| Citizenship for corporation (Subj matter jdx) |
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Definition
(1) state where incorporated AND
(2) the one state where the corporation has its principal place of business (PPB)
- direct, control, and coordinate corp activity (nerve center)
**Corporation can have two citizenship (c.f. humans cannot)** |
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Term
| Citizenship for Unincorporated Association (Subj matter jdx) |
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Definition
| Use the citizenship of all members (that includes general and limited partners). |
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Term
| Citizenship for decedents, minors, or incompetents (Subj matter jdx) |
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Definition
| Use their citizenship, not the citizenship of their representative. |
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Term
| Amount in controversy (Subj matter jdx) |
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Definition
- Good faith claim must exceed $75,000
Note: Whatever the plaintiff claims in good faith is OK unless it is clear to a legal certainty that she cannot recover more than $75,000. If Pl rec'd less, may have to pay fees.
Aggregation of all the claims of Pl against Def OK; thus, OK to add two or more claims to meet the amount requirement. |
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Term
| Satisfying amount in controversy in claim for equitable relief (Subj matter jdx) |
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Definition
Plaintiff's viewpoint: does the blocked view decrease the value of plaintiff's property by more than $75,000?
Defendant's viewpoint: would it cost defendant more than $75,000 to comply with the injunction? |
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Term
| Federal Question (Subj matter jdx) |
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Definition
| Complaint must show a right or interest founded substantially on a federal law (e.g., federal constitution, legislation). The claim “arises under” federal law. |
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Term
| “Well pleaded complaint” Rule (Subj matter jdx) |
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Definition
The P’s claim itself must “arise under” federal law. So we look at the claim and ignore other material P might have alleged.
Ask: Whether Pl is enforcing a federal right. If yes, then FQ OK. |
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Term
| Supplemental Jdx (Subj matter jdx) |
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Definition
Once a case is in federal court, can get additional claims (non-diversity or FQ) into federal court with supp jdx.
Test: The claim must share a “common nucleus of operative fact” with the claim that invoked federal subject matter jurisdiction. Always met by claims that arise from the same transaction or occurrence (T/O) as the underlying claim.
Limit: CANNOT use Supp Jdx to overcome lack of diversity; OK for diversity and amount in controversy
Ct discretion NOT to hear if
- FQ dismissed early
- State law claim complex
- State law claim predominate |
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Term
| Removal (Subj matter jdx) |
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Definition
A defendant sued in state court might be able to “remove” the case to federal court.
When: w/in 30 days
Who: Defendants; all defs must join in removal
What: Cases that would meet diversity or FQ, EXCEPT
- D is a citizen of the forum (in state D rule) AND
- More than one year after the case filed in fed ct
Where: To fed dist embracing the state court
Def who files a PERMISSIVE counterclaim in state prob waives rt to remove; prob not waive if COMPULSORY.
If removal was improper, the federal court can “remand” to state court. |
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Term
| Erie Doctrine (Subj matter jdx) |
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Definition
In diversity cases, the federal court must apply state SUBSTANTIVE law; federal PROCEDURAL law
ANALYSIS
(1) Is there a federal law on point that directly conflicts with the state law?
- If so, apply the federal law, as long as it is valid.
(2) If no federal law on point, is this an easy one? Substantive and MUST follow state law if...
- Elements of claim or defense
- SOL
- Rules for tolling SOL
- Conflict (or choice) of law rules
(3) If not (1) or (2), but judge wants to ignore state law, then run the following test and come to rsnbl concl
- OUTCOME DETERMINATIVE: would applying or ignoring the state rule affect outcome of case? If so, it's probably a substantive rule, so should use state law.
- BALANCE OF INTERESTS: does either federal or state system have strong interest in having its rule applied?
- AVOID FORUM SHOPPING: if the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, should probably apply state law. |
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Term
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Definition
Exactly which federal court Pl can file.
Pl may lay venue in any district where
- ALL defs reside
- A substantial part of the claim arose
SPECIAL RULE in cases where all defendants reside in different districts of the same state, plaintiff can lay venue in the district in which any of them resides.
Reside
- Humans = domicile
- Business = where subject to personal jdx |
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Term
| Transfer of Venue (Venue) |
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Definition
Fed dist ct can only transfer to a district where case COULD HAVE BEEN FILED
- To a proper venue that has personal jdx over the Def
If venue in orig dist PROPER, that ct has discretion to transfer based on
- PUBLIC - what law applies, cmty should be burden with jury service, keeping local controversy in local ct
- PRIVATE- convenience of party, wit, and evid
- Transferee ct applies choice of law rules of orig ct
If venue in orig dist IMPROPER, CT may transfer in interest of justice or dismiss |
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Term
| Forum Non Conveniens (Venue) |
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Definition
When there is another court that is far more sensible than the present one
Considerations
- PUBLIC - what law applies, cmty should be burden with jury service, keeping local controversy in local ct
- PRIVATE- convenience of party, wit, and evid
Almost never granted if P is resident of the present forum.
Other court must be “adequate.” |
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Term
| Service of Process (Service) |
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Definition
Must give notice to D. Deliver to D
- a summons (formal court notice of suit and time for response) and
- a copy of the complaint
Serve within 120 days of filing or case dismissed without prejudice |
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Term
| Who can serve process? (Service) |
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Definition
| Any nonparty who is at least 18 years old. |
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Term
| How process served (Service) |
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Definition
- Personal service. Papers given to D personally.
- Substituted service. Process is left with at Def's usual abode with someone of suitable age and discretion who resides there
- Service on D's agent. Process can be delivered to D's agent. -
- State law. In addition, in federal court we can use methods of service permitted by state law of the state where the federal court sits or where service is effected.
- Waiver by mail. Mail (regular mail is OK) to D a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form.
** Def waives formal service, gets 60 days from the mailing to respond to the complaint (Waives NO DEFENSES)
** Def fails to waive formal service, pays Pl's cost of service |
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Term
| Immunity from Service (Service) |
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Definition
| Immune from service if you are instate to be a witness or party in another civil case |
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Term
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Definition
Requires atty to sign certifying that to the best of your knowledge and belief, after reasonable inquiry:
- The paper is NOT IMPROPER PURPOSE,
- LEGAL CONTENTIONS WARRANTED by law (or nonfrivolous argument for law change), and
- Factual contentions and denials of factual contentions have EVIDENTIARY SUPPORT (or are likely to after further investigation).
**Continuing certification every time you "present" a position to court** |
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Term
| Rule 11 Violations (Pleadings) |
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Definition
Sanctions may be levied (they are discretionary) against attorney, firm, or party to deter repeat bad conduct
- Safe Harbor - If another party violates Rule 11, serve the motion on other parties but cannot file it. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed.
- NO safe harbor if the court raises Rule 11 problems “sua sponte” - demanding that a party show cause why there should be no sanctions |
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Term
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Definition
Filing commences an action.
- Statement of grounds for subject matter jurisdiction;
- Short and plain statement of the claim, showing entitled to relief;
- Demand for relief sought.
Claim under "notice pleading"
- Must allege facts supporting a plausible claim
- To determine plausibility, the judge uses her own experience and common sense
Fraud, mistake, and special damages must be plead with particularity - MORE DETAILS |
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Term
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Definition
Rule 12 requires D to respond in one of two ways:
(1) by motion or
(2) by answer |
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Term
| Motions (Rule 12) (Pleading) |
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Definition
Motions are not pleadings; they are requests for a court order.
ISSUES OF FORM:
- (1) Motion for more DEFINITE STMT – pleading so vague D can't frame a response (rare);
- (2) Motion to STRIKE, which is aimed at immaterial things, e.g., demand for jury when no right exists; any party can bring.
Rule 12(b) DEFENSES (rise by either mot or answer):
- (1) lack of subject matter jurisdiction;
- (2) lack of personal jurisdiction;
- (3) improper venue;
- (4) insufficiency of process (problem with the papers);
- (5) insufficient service of process;
- (6) failure to state a claim;
- (7) failure to join indispensable party.
#2, 3, 4, and 5 are "WAIVABLE" - MUST BE PUT IN THE FIRST RULE 12 RESPONSE (MOTION OR ANSWER) OR ELSE THEY'RE WAIVED. |
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Term
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Definition
Respond or raise affirmative defense.
RESPOND
- (1) admit;
- (2) deny;
- (3) state that you lack sufficient information to admit or deny [can't be used if the information is public knowledge or is in defendant's control]
**Failure to deny can constitute an admission on any matter except damages**
RAISE AFFIRMATIVE DEFENSES
These inject a new fact into the case, that will allow D to win. e.g. SOL, statute of frauds, and res judicata.
Timing: Serve within 21 days after service of process. But if D made a Rule 12 motion, and it is denied, she must serve her answer within 14 days after court rules on motion. |
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Term
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Definition
This is a claim against an opposing party, e.g., D v. P. In federal court, it is part of D’s answer. Types
COMPULSORY - arises from the same T/O as P's claim. MUST BE FILED IN THE PENDING CASE, OR IT'S WAIVED. The claim cannot be asserted in another action. **THIS IS THE ONLY COMPULSORY CLAIM**
PERMISSIVE - does not arise from same T/O as plaintiff's claim. You may file it with your answer in this case or can assert it in a separate case. |
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Term
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Definition
Claim against a co-party. It must arise from the same T/O as the underlying action.
**Always permissive** |
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Term
| Amending pleadings (Pleading) |
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Definition
Right to amend:
- Plaintiff has a right to amend once within 21 days after Def serves her Rule 12 response
- Defendant has a right to amend once within 21 days of serving his answer.
Leave of court:
If “justice so requires" i.e. whether delay, prejudice, or it's futile
Variance - Motion to confirm pleadings to show what evidence was presented at trial |
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Term
| Relation Back - Join New Claim(Pleading) |
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Definition
Amendment after the statute of limitations has run (“relation back”) - treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.
Rule: Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading. |
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Term
| Relation Back - Change Defendant (Pleading) |
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Definition
Amendment after the statute of limitations has run (“relation back”) - treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.
Rule: Amendment relates back if
(1) It concerns the same conduct, transaction, or occurrence as the original;
(2) The new party knew of this case within 120 days of its filing; AND
(3) She also knew that, but for a mistake, she would have been named originally. |
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Term
| Required disclosures (Discovery) |
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Definition
This material must be produced even though no one asks for it
- Initial disclosure
- Experts
- Pretrial documents |
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Term
| Initial disclosures (Discovery) |
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Definition
Within 14 days of the Rule 26(f) conference, must
- identify persons and give copies (or description) of documents or electronically stored info likely to have discoverable information that the disclosing party may use to support its claims or defenses
- computation of damages and insurance for any judgment. |
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Term
| Expert - Required disclosure (Discovery) |
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Definition
| Must identify experts who may be used at trial, written report containing opinions, data used, qualifications, compensation, etc. |
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Term
| Pretrial - Required disclosure (Discovery) |
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Definition
| No later than 30 days before trial, must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition. |
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Term
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Definition
- Deposition (Party AND Non-Party)
- Interrogatories (Party)
- Request to produce (Party and Non-Party)
- Physical or mental exam (Party)
Request for admission (Party)
- Every discovery request and response is signed by counsel certifying
(1) it is warranted,
(2) not interposed for improper purpose, and
(3) not unduly burdensome.
Duty to supplement responses if things change |
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Term
| Depositions (Discovery Tools) |
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Definition
What: Deponent gives sworn oral answers to questions by counsel (or pro se parties).
Who: Party AND Nonparty
- Nonparty should be subpoenaed; Party need not be subpoenaed - notice is enough
- Subpoena could be “duces tecum,” which requires the deponent to bring material (e.g., documents) with her.
Amount: 10 depositions or depose the same person twice without court approval or stipulation. Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.
Use at trial:
(1) impeach the deponent;
(2) any purpose if the deponent is an adverse party;
(3) any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence.
Notice of subpoena to a business may require it to designate the right person for deposition. |
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Term
| Interrogatories (Discovery Tools) |
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Definition
What: Questions propounded in writing to another party, to be answered in writing under oath.
Who: Party Only
When: Must respond with answers or objections within 30 days.
Amount: Cannot serve more than 25 without court order or stipulation. |
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Term
| Requests to produce (Discovery Tools) |
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Definition
What: Requests to another party (or to non-party if accompanied by subpoena) requesting that she make available for review and copying various documents or things, including electronically stored info (ESI), or permit entry upon designated property for inspection, measuring, etc. Specify form in which ESI is to be produced (hard copy or electronic).
Who: Party AND Non-party
When: Must respond within 30 days of service, stating that the material will be produced or stating objection. |
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Term
| Physical or mental examination (Discovery Tools) |
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Definition
What: Only available through court order on showing that party's HEALTH is in ACTUAL CONTROVERSY and GOOD CAUSE (i.e., you need it and can't get it elsewhere). Party seeking the order chooses the suitably licensed person to perform the exam.
Who: Party Only
**Person examined may obtain copy of report simply by asking for it, but by doing so waives his doctor-patient privilege re reports by his doctors re that condition. |
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Term
| Request for Admission (Discovery Tools) |
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Definition
Who: A request by one party to another party to admit the truth of any discoverable matters. Must admit or deny; can indicate lack of information only if indicate you've made a reasonable inquiry. Failure to deny tantamount to admission; can amend if failure not in bad faith.
**Used to authenticate documents**
Who: Party Only
When: Must respond within 30 days of service. |
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Term
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Definition
Anything relevant to a claim or defense - It includes things that are “reasonably calculated to lead to the discovery of admissible evidence.
- THIS IS BROADER THAN ADMISSIBLE EVIDENCE! |
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Term
| Not Discoverable (Privilege or WP) |
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Definition
- Communication protected by PRIVILEGE
- WORK PRODUCT or "trial prep material" - any material prep by party or rep of party in anticipation of litigation
**Absolute protection of WP: mental impressions, opinions, conclusions, and legal theories
** Not absolute protect, can get if other party show SUBSTANTIAL NEED and NOT OTHERWISE AVAILABLE
To claim privilege or WP - must expressly and particularly describe the materials and list docs in PRIVILEGE LOG |
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Term
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Definition
Testifying Expert:
- Parties are required to produce information about experts who may be used at trial without request from party
- A party may take deposition of any expert “whose opinions may be presented at trial.”
- Draft reports of experts identified in required disclosures are work product.
Consulting Expert:
- Retained in anticipation of lit, but will not testify; NO discovery absent exceptional need |
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Term
| Enforcement of discovery rules |
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Definition
- Protective order - Responding party seeks protective order
- Sanctions -***The party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement.*** |
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Term
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Definition
- Partial violation - Receiving party answers some and objects to others
- Full violation - Receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production |
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Term
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Definition
RAMBO SANCTIONS (choices available to judge):
- Establishment order (establishes facts as true)
- Strike pleadings of the disobedient party (as to issues re the discovery)
- Disallow evidence from the disobedient party (as to issues re the discovery)
- Dismiss plaintiff's case (if bad faith shown)
- Enter default judgment against defendant (if bad faith shown) |
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Term
| Partial violation (Discovery Violations) |
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Definition
Two steps
(1) Can get an order compelling the party to answer the unanswered questions, plus costs (including attorney’s fees) of bringing motion.
(2) IF the party violates the order compelling him to answer, RAMBO sanctions plus costs (and attorney's fees re the motion) and could be held in contempt for violating a court order. |
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Term
| Full violation (Discovery Violations) |
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Definition
| RAMBO plus costs (and attorney's fees for bringing the motion). No need to get an order compelling answers first – you go directly to RAMBO |
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Term
| Proper Parties - co-plaintiff |
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Definition
| Arise from the same transaction or occurrence AND raise at least one common question |
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Term
| Proper Parties - co-defendants |
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Definition
Arise from the same T/O and AND raise at least one common question.
**NOTE: Make sure to assess subject matter jdx** |
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Term
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Definition
JOINDER RULES THAT START WITH
- "C" – ARE CLAIMS BETWEEN PRESENT PARTIES.
- "I” INVOLVE JOINING SOMEONE NEW TO THE CASE
Present Parties:
- Counterclaim
- Crossclaim
New Party:
- Impleader
- Intervention
- Interpleader |
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Term
| Joinder - Necessary and indispensable parties (Must and Can?) |
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Definition
STEP 1: An absentee MUST be force to join a case if they are NECESSARY:
(1) Without A, the court cannot accord complete relief among existing parties (worried about multiple suits);
(2) A's interest may be harmed if he is not joined (practical harm); or
(3) A claims an interest which subjects a party (usually D) to multiple obligations.
STEP 2: If necessary, is joinder FEASIBLE
(1) There is personal jdx
(2) Joinder will not destroy diversity
STEP 3: If joinder not possible, ct can proceed w/o A or dismiss entire case
Factors:
(a) Is there an alternative forum available (maybe a state court)?
(b) What is the actual likelihood of harm to A?
(c) Can the court shape relief to avoid that potential harm to A? |
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Term
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Definition
What: A defending party wants to bring in someone new (third-party defendant (“TPD”) for indemnity and contribution.
- After TPD joined, Pl can assert claim and TPD can assert counterclaim arising from same T/O as underlying case.
- Must assess Subject Matter Jdx for these claims
Time: There is a right to implead within 14 days after serving answer; after that, need court OK. |
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Term
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Definition
What: Absentee wants to join a pending suit. She chooses to come in either as plaintiff or as a defendant. Court may realign her if it thinks she came in on the “wrong” side.
TYPES -
Intervention of RIGHT: A's interest may be harmed if she is not joined and her interest is not adequately represented now.
- If necessary, then automatically have a right to intervene
PERMISSIVE intervention: A's claim or defense and the pending case have at least one common question.
- Discretionary with court; OK unless delay or prejudice
Time: Application to intervene must be “timely.” |
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Term
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Definition
What: One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency.
(Stakeholder v. Claimants)
TYPES - In each, the stakeholder is not sure who really owns the property (maybe she thinks she does) and wants to avoid multiple liability or suits. In each, the court can enjoin claimants from suing elsewhere.
RULE 22:
- Diversity - Stakeholder must be diverse from EVERY claimant
- Amount - Exceed $75,000
- Service - treated as regular service
- Venue - like regular case
STATUTORY:
- Diversity - One claimant must be diverse from one other claimant (don't care about stakeholder's citizenship).
- Amount - Exceed $500
- Service - nationwide service (so no personal jurisdiction problems over claimants in U.S.)
- Venue - District where any claim resides |
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Term
| Class Action Initial Requirements |
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Definition
- Numerosity: Too many class members for practicable joinder;
- Commonality: There is some question of law or fact in common to class;
- Typicality: Rep's claims/defenses typical of those of the class; and
- Representative is adequate: Rep will fairly and adequately represent class. |
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Term
| Type of Class Action Case |
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Definition
TYPE 1: “Prejudice” – class treatment necessary to avoid harm either to class members or to party opposing class. e.g. many claimants to a fund. Individual suits might deplete the fund, leaving some without remedy. RARE
TYPE 2: injunction or declaratory judgment (not damages) sought because class was treated alike by other party. e.g. Employment discrimination
TYPE 3: “Damages”
- (1) common questions predominate over individual questions; AND
- (2) class action is the superior method to handle the dispute.
e.g. Mass tort could be an example |
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Term
| Type 3 Class Notice Requirement |
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Definition
The court must notify class members that they are in a class. This means individual notice (usually by mail) to all reasonably identifiable members. The notice tells them various things, including: - (a) they can opt out;
- (b) they’ll be bound if they don’t; AND
- (c) they can enter a separate appearance through counsel.
Class representative pays. |
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Term
| Who is bound by class action decision? |
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Definition
| All class members, except those who opt out of a Type 3 class action. |
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Term
| Class Action and Subject Matter Jdx |
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Definition
FQ: The class could invoke FQ jurisdiction by asserting a claim arising under federal law.
Diversity: For citizenship, consider only the rep (ignore other class members’ citizenships).
Amount: The rep's claim must exceed $75,000.
***So: as long as the rep is diverse from all defendants, and as long as the rep’s claim exceeds $75,000, it’s OK.*** |
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Term
| Class Action Fairness Act |
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Definition
This grants subject matter jurisdiction separate from diversity of citizenship jurisdiction.
Fed ct can hear a class action (of at least 100 members) if
- ANY class member (not just the representative) is of diverse citizenship from any defendant and
- if the aggregated claims of the class exceed $5,000,000. |
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Term
| Types of Pre-trial Adjudication |
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Definition
- Voluntary Dismissal
- Default and Default Judgment
- Failure to State a Claim
- Summary Judgment |
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Term
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Definition
May be allowed on court order (and P may have to pay D’s costs).
- P may voluntarily dismiss “without prejudice” before D serves her answer or a motion for summary judgment.
- If P dismisses the second case by written notice, it is with prejudice |
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Term
| Default and Default Judgment |
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Definition
Default - notation by the court clerk on the docket sheet of the case. Showing the clerk that D has failed to respond within 21 days after being served with process.
Default Judgment - Get judgment to enforce and recover money and other remedies on the default if
- D made no response at all
- The claim itself if for a sum certain in money;
- Claimant gives an affidavit (sworn statement) of the sum owed; AND
- D is not a minor or incompetent.
Cannot exceed what the Pl demanded in compl.
Def can set aside Default or Default Judgment by showing of good cause and viable defense |
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Term
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Definition
D moves to dismiss for failure to state a claim. Tests only the sufficiency of P's allegations. The court ignores legal conclusions and looks at allegations of fact.
Ask: If these facts were true, would the plaintiff win a judgment
If after Def answer, same mot would be called a MOTION FOR JUDGMENT ON THE PLEADINGS |
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Term
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Definition
Moving party must show
(1) there's no genuine dispute on a material fact and
(2) that she is entitled to judgment as a matter of law.
Standard: The court VIEWS THE EVIDENCE IN THE LIGHT MOST FAVORABLE TO THE NONMOVING PARTY. If the evidence shows there is no dispute of fact then MSJ!
c.f. 12(b)(6) => no evidence; msj => evidence
The parties proffer the evidence, usually affidavits or declarations, deposition testimony or interrogatory answers – these are under oath, so they can be considered as evidence here. |
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Term
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Definition
| Unless court order says otherwise, at least 21 days before scheduling conference (or scheduling order is due), parties discuss claims, defenses, and settlement. Must form discovery plan, including issues about how electronically stored info will be produced, and present it to court in writing within 14 days. |
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Term
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Definition
The court may hold “pretrial conferences” to process the case and foster settlement.
Final pretrial conference determines issues to be tried and evidence to be proffered.
This is recorded in a pretrial conference order, which supersedes the pleadings - it is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. |
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Term
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Definition
Seventh Amendment (which applies ONLY in federal court - not state court)) preserves the right to jury in “civil actions at law,” but not in suits at equity.
If case is both law and equity, the jury to decide the facts underlying the damages claim, but not the equity claim
- Try jury issues first
Timing: Must demand jury trial in writing no later than 14 days after service of the last pleading raising jury triable issue. |
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Term
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Definition
For cause - no limit (e.g., bias, prejudice, juror is related to a party).
Preemptory - Each side only gets three
- Must be race and gender netural |
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Term
| Motion for judgment as a matter of law (JMOL) |
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Definition
This is an exceptional order, the effect of which is to take the case away from the jury.
When: After the other side has been heard at trial
- Def: at close of Pl evid and at close of all evid at trial.
- Pl: only at close of all evid.
Standard: Reasonable people could not disagree on the result
**Court views evidence in the light most favorable to the nonmoving party**
**Every time there is JMOL, think RJMOL too!** |
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Term
| Renewed motion for judgment as a matter of law (RJMOL) |
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Definition
SAME AS JMOL BUT COMES UP AFTER JURY VERDICT
– If RJMOL is granted, the court enters judgment for the party that lost the jury verdict! Move within 28 days after entry of judgment.
Standard: same as with motion for JMOL. (So, if granted, the jury reached a conclusion reasonable people could not have reached.)
**IF YOU DID NOT MOVE FOR JMOL AT TRIAL, YOU CANNOT BRING THE RJMOL MOTION.** |
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Term
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Definition
Judgment entered, but errors at trial require a new trial.
GROUNDS:
(1) prejudicial (not harmless) error at trial MAKES JUDGMENT UNFAIR (e.g., wrong jury instruction; evidentiary ruling);
(2) new evidence that could not have been obtained with due diligence for the original trial;
(3) prejudicial misconduct of party or attorney or third party or juror (e.g., juror conducted independent investigation of accident);
(4) judgment is against the weight of the evidence (serious error of judgment by jury);
(5) excessive or inadequate damages.
Timing: Move within 28 days after judgment. |
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Term
| Motion to set aside judgment |
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Definition
- Clerical error: Anytime
- Mistake, excusable neglect: Reasonable time (never more than 1 year)
- New evidence that could not have been discovered with due diligence for a new trial motion: Reasonable time (never more than 1 year)
- Judgment is void (e.g., no SMJ): Reasonable time (no maximum) |
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Term
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Definition
Right to appeal only from final judgments. That means the ultimate decision by the trial court of the merits of the entire case.
Timing: File notice of appeal in trial court within 30 days after entry of final judgment |
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Term
| Interlocutory (non-final) review |
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Definition
May be appealable even though not final judgments.
Interlocutory orders reviewable as of right: orders granting, modifying, refusing, etc. injunctions; appointing, refusing to appoint receivers; findings of patent infringement where only an accounting is left to be accomplished by trial court; orders affecting possession of property, e.g., attachments.
- Interlocutory Appeals Act. Allows appeal of nonfinal order if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and the court of appeals agrees to hear it |
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Term
| “Collateral order” exception (Interlocutory review) |
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Definition
Appellate court has discretion to hear ruling on an issue if it
(a) is distinct from the merits of the case,
(b) involves an important legal question, and
(c) is essentially unreviewable if parties must await a final judgment (e.g., claim of immunity from suit, such as a state=s claim under the Eleventh Amendment that it is immune from being sued in federal court. (Not just immune from liability, but immune from being sued at all in federal court.)). |
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Term
| Extraordinary writ (Interlocutory review) |
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Definition
| Not technically an appeal, but an original proceeding in appellate court to compel the trial judge to make or vacate a particular order. Not a substitute for appeal; available only to enforce a clear legal duty. |
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Term
| Class action (Interlocutory review) |
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Definition
Court of appeals has discretion to review order granting or denying certification of class action.
Timing: Must seek review at the court of appeals (not in the trial court) within 14 days of order.
Appeal does not stay proceedings at trial court unless trial judge or court of appeals so orders. |
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