QUICKSHEET – FEDERAL CIVIL PROCEDURE

SUBJECT MATTER JURISDICTION (SMJ) = Power of court over a particular case (4 ways to establish)

1) Federal question (FQ) à A question of federal law must arise in P’s affirmative claim (this is the well
pleaded complaint rule)
a) Can have state law in addition to federal if the FQ is:
i) Actually in dispute +
ii) Demands federal judges’ expertise and ought to be resolved uniformly +
iii) Not so commonly present in state law actions to trample their jurisdiction

2) Diversity jurisdiction à Action between citizens of different states + amount in controversy is greater than $75k
a) Must be “complete” (no P and no D citizens of same state)
b) Measured at time suit is filed but amended complaints that add or dismiss can affect diversity
c) Exception: Class actions where more than 100 persons and $5M
i) Diversity need only be “minimal” – a single P diverse from a single D
d) Determining citizenship
i) Human begins = only a citizen of 1 place at a time, state where resides and intends to remain
indefinitely
ii) Corporations = could be citizen of 2 places, citizen of state incorporated and state in which it
maintains its principal place of business (nerve center)
iii) Unincorporated associations (unions, LLCs, partnerships) = citizenship is the citizenship of every
member, could be all 50 states
e) Aggregation of claims à P brings multiple claims against a single D will be added together to see if
amount in controversy reached
i) Can be totally unrelated, no same transaction or occurrence requirement

3) Supplemental jurisdiction (SJ) à Allows claim falling outside Federal Question (FQ) or Diversity to piggy
back onto a claim that does fall within FQ or Diversity
a) Step 1: Determine relatedness
i) Does claim 2 (piggy back claim) arise from same transaction/occurrence as one with FQ or Div
(anchor claim)?
(1) If not, no supplemental. If so, advance to step 2
b) Step 2: Sneaky plaintiffs
i) Is anchor claim FQ? If yes, advance to step 3
ii) If not, anchor must be diverse. Need to determine how they were brought into the suit. If brought
into by P with:
(1) Rule 14, 19, 20, 24, P may be trying to slip it in. SJ not available for these claims. Need Div
or FQ for these
iii) If P did not do that (or if D brought in), advance to step 3
iv) Tip: Stacked parties (P gets beat up by D1, D2, D3) will always need FQ or Div for all stacked
parties if Ds are made parties by P from the outset
c) Step 3: Steps 1 and 2 are satisfied, but is there a good reason for the court to decline anyway? If yes,
court may decline. Possible reasons:
i) Involves novel or complex issue of state law;
ii) Claim “substantially dominates” over FQ or Div;
iii) Anchor claim was dismissed;
iv) Other compelling reasons

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4) Removal à D can remove from state to fed court if case could have originally been filed in fed court
a) Exception: (Home-state defendant rule) D can’t remove if:
i) Fed jurisdiction would be grounded only in diversity juris +
ii) D is a citizen of state where P filed suit
b) If multiple Ds, removal only allowed if ALL Ds agree to remove
c) Timing: D must remove within 30 days of when grounds become apparent
i) Normally, when D served w/ complaint, can be later: if P amends, then 30 days from that point
ii) Multiple Ds, later service on other Ds gives them, not D1 right to choose (but D1 can join later D’s
removal)
iii) If removal based on diversity, D must remove within 1 year of filing unless P attempted to thwart
removal

PERSONAL JURISDICTION (PJ) = Power of court over particular person

1) Step 1: Look at state law à could a state court in that state assert PJ over that party?
a) Yes – federal court can (subject to constitutional considerations)
b) No – if state court cannot, federal court cannot assert PJ either

2) Step 2: Look at 14th Amend à State law must be constitutional under the Due Process Clause (DP) of the
14th Amend. State law constitutional if authorizes PJ in 1 of 5 circumstances:
a) Residency – If party is resident (domiciled) in state where suit filed, PJ is constitutional
i) Corp is resident of state(s) where incorporated and where it has its principal place of business
b) Consent – Party can consent to PJ over him (3 ways)
i) Appearance: Party appears in court without objecting to PJ (must object to PJ in initial filing or
first appearance before court)
ii) Contract: If D Signed K with choice-of-forum clause = consent
iii) Appointment: Some states require biz to appoint agents located in state to receive process = consent
c) Service – D served with process while in state where suit filed (tag)
i) Not constitutional if P enticed or force D into the state OR D was in state to participate in different
legal proceeding
d) Minimum contacts – need all 3:
i) D has established a minimum contact with forum state +
(1) Established if D causes harm in state, does business, or has an interest in real property in
state
ii) Claim against D arises from that contact +
iii) PJ wont offend traditional notions of fair play + substantial justice
e) Substantial business – Very high bar to clear
i) For general jurisdiction, business must be so significant that the company, though not incorpo-
rated or headquartered in state, is essentially at home there (exceptional case)
ii) For specific jurisdiction, there must be a connection between the forum and the underlying
controversy

VENUE = Region within a particular state where suit can be brought

1) Dictated by where the bad guy lives and/or where bad thing went down
a) If all D’s reside in same state à district where any single D resides
i) Humans reside where they live
ii) All other Ds (corp, partnership) reside in every district in which they are subject to PJ for that
district
b) Ds reside in multiple states à location of harm
i) Defined as the district where a substantial part of the events giving rise to the claim occurred

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2) Transferring venues – Can move between fed courts, not state or foreign courts
a) Convenience (commonly used) – Could have been filed there in first place + transfer is necessary for
convenience of parties and/or witnesses
b) Agreement – If all parties join request to transfer, court does not need to consider PJ or venue (if
agree, consenting)
c) Interest of justice – If filed in improper venue, court can dismiss or in the interest of justice, transfer
where could have been filed originally

3) Forum non conveniens – If most convenient forum not in the US, court cannot transfer, but can dismiss
without prejudice so P can refile in proper country, may not be in US. Same factors considered as in transfer
of venue

THE COMPLAINT

1) Contents
a) Grounds for subject matter jurisdiction
b) Statement of facts that are sufficient to show that P is entitled to relief
c) Demand for judgment and specify the relief sought

2) Amendments (Rule 15)

a) Party can amend complaint once as a matter of right:
i) Within 21 days of serving it or if an answer or motion to dismiss has already been filed, within 21
days after that service
ii) Party can amend an answer within 21 days of serving it
b) Party can amend with permission:
i) Permission of opposing parties, then can amend
ii) Permission of court - will consider reason for delay and prejudice (usually granted)

3) Amendments and statutes of limitations

a) Adding new claims à amendment considered filed on date of original claim IF new claim arises from
the same transaction or occurrence as existing claim (relation back rule)
b) Adding new parties à will relate back to original filing date if party to be added:
i) Knew of the suit soon enough to not be prejudiced and not later than time permitted for service, +
ii) Should have expected to be named as a D, +
iii) Was originally left out because of mistake in identity

SERVICE OF PROCESS (Rule 4)

1) Must serve both the complaint + summons, if not, service isn’t proper

2) Must be served within 90 days of filing complaint

3) Anyone over 18 and not a party can serve

4) How can process be served? (2 options)

a) Option 1 – Manner prescribed by state court in state where: (1) federal suit has been filed OR (2)
where the D will be served
b) Option 2 – Manner specified by Fed Rule 4
i) If D = natural person, 4 options:
(1) Deliver to D himself (through 3rd party);
(2) Leave at D’s usual abode with a person of suitable age and discretion residing there;
(3) Serve D’s registered agent; or
(4) Mail with letter requesting D waive in-person service

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(a) If D declines to waive, he becomes responsible for cost of personal service

ii) If D = corps, partnerships, and associations, 3 options, server process on:
(1) An officer;
(2) A managing agent or general agent; or
(3) Any other agent authorized by appointment or by law to receive service
(a) If law requires by mail, must be by hand + mail

5) Service and Due Process à D entitled to notice of claims against him and opportunity to respond to those
claims
a) Notice through service: if served, basically have notice
i) Key is whether service reasonably calculated to inform D of action against him
b) Notice without service: may be a constitutional issue
i) Key is whether P took steps reasonably calculated to inform D of the action against him

RESPONDING TO COMPLAINT (Rule 12)

1) Answer = D admits or denies P’s allegations and lists defenses he might have
a) For each allegation, D should specifically admit or deny à If failure to deny, it is deemed admitted
b) Defenses
i) No limit to how many, but common ones are statute of limitations, statute of frauds, assumption of
risk
ii) Waiver: If defense not included in answer, generally it’s forfeited
(1) Exceptions: Following are not forfeited: Failure to state a claim upon which relief should be
granted; failure to join necessary party; and lack of SMJ
c) Motion for more definite statement – Court will order pleading to be clarified if so vague that
responding party cannot reasonably prepare a response
d) Motion to strike – Court can (on own or motion) order material stricken if complaint/answer contains
redundant, immaterial or scandalous stuff
e) Motion to dismiss – Seeks dismissal, can be filed by any defending party

2) Timing of responses
a) Initial response (answer or pre-answer motion)
i) If D was actually served with process à 21 days to respond
ii) Service of process waived à 60 days to respond
b) If D responds with 1 of above motions and its denied à D must file answer within 14 days of denial

PROVISIONAL RELIEF (Rule 65)

1) Preliminary injunction (PI) – Need notice to adverse party and:

a) Likelihood of success on the merits +
b) Irreparable harm (ongoing / imminent harm, can’t be undone later) +
c) Balance of hardships (is harm to P if no injunction greater than harm to D if granted?) +
d) Public interest +
e) Payment of security

2) Temporary restraining order (TRO)

a) Similar to a PI – Same 5 part test as above, but:
b) TRO can be ex parte – must show tried to notify opposing party, was unable to, and needs a TRO to
avoid immediate irreparable harm
c) TROs expire 14 days after issuance
i) Can be extended for 14 days upon good cause shown

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JOINDER OF CLAIMS

1) Multiple claims brought by 1 P and 1 D (Rule 18)

a) P can bring all claims in 1 lawsuit, regardless of relatedness of claims
b) Not required to bring every claim but permitted to
i) If related to claim in suit, must bring, or likely precluded

2) Counterclaims (Rule 13(a), (b)) – how a sued party returns fire

a) Permissive counterclaim = Claim does not arise out of the same transaction or occurrence underlying
P’s claims against D à D may file a permissive counterclaim but not required to do so
b) Compulsory counterclaim = Claim does arise out of same transaction or occurrence underlying P’s
claim against D à D must file or forfeit

3) Cross claims (Rule 13(g)) – Filed by party against co-party (D1 v. D2)
a) Allowed only if arise from same transaction or occurrence underlying one of P’s claims
b) Once a related cross is filed, this is the anchor claim. Can then file unrelated cross claims.
c) Co-D can counterclaim the cross. Compulsory/permissive rules apply, does not have to be related

4) Impleader claims (Rule 14) – D brings against person not already a party
a) Must allege 3rd party is responsible for some / all of liability
i) Ex: contribution (claim against joint tortfeasor), indemnity (claim against insurer)
b) D has right to implead if within 14 days of serving an answer, otherwise needs permission from court
c) After impleaded, 3rd person made party may bring own claims against others and implead others.
Original P can also file claim against 3rd party (impleaded D) if it relates to one of P’s original claims

JOINDER OF PARTIES

1) Permissive joinder (Rule 20) Multiple P’s can join 1 suit or multiple D’s can be sued in 1 suit, as long as:
a) Joined parties claim relief (if Ps) or face liability (if Ds) that arises out of the same transactions or
occurrence; +
b) There will arise questions of law/fact common to joined parties

2) Mandatory joinder (Rule 19) could be forced to add a party to the suit
a) Step 1: Is the absent party necessary?
i) Necessary party = Has an interest that might be impaired if left out (suing for painting back, need
guy w/ painting); complete relief cannot be issued in the party’s absence; or if current parties
would be subject to inconsistent / duplicative liability
ii) If party is not necessary, no mandatory joinder
b) Step 2: If missing party is necessary, can she be joined?
i) Missing party can’t be joined in federal court if court lacks PJ over missing party, or adding would
destroy SMJ by destroying diversity
(1) Yes à Court should just join them, adjudicate case, skip Step 3
(2) No à Proceed to Step 3
c) Step 3: If cannot be joined, are they indispensable?
i) Court will consider: extent of prejudice to missing party; can prejudice be lessened by shaping
relief in a certain way; and if case is dismissed, whether P can find relief in another forum
(1) Yes à Must dismiss the suit
(2) No à Court can adjudicate case in party’s absence

3) Class actions (Rule 23)

a) One person (representative) can litigate on behalf of class if:
i) A class can be formed, and
ii) The action brought is proper for resolution via class action
b) To form a class, must meet 4 requirements:

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i) Numerosity: So many claimants that joinder is impractical

ii) Commonality: Questions of law or fact common to class
iii) Typicality: Claims are typical of class members ensuring the rep will have an incentive to litigate
in ways to protect class
iv) Representativeness: Parties will fairly and adequately protect the interests of the class
c) Proper for resolution via class action if:
i) Separate actions would create risk of inconsistent judgments or judgments would impair nonpar-
ties from protecting interests
ii) Where party opposing has acted in ways generally applicable to the class (not likely to work if
seeking $$)
iii) Court finds that common questions of law or fact predominate over individualized questions, and
a class action is superior to other methods for fair/efficient result
d) Additional considerations
i) Court must have PJ over every D but only the named P
ii) Judgment binds all class members unless they opt out
iii) SMJ: When alleging state law violation, class can appear in fed court only if Ds and representa-
tive Ps (not all members) are completely diverse.
(1) I.e., If 100 members and seeks damages over $5M, diversity satisfied if any single member
is diverse from any D

4) Interpleader claims (Rule 22) – Have the other 2 guys sue each other
a) Used when party fears it’ll face multiple/inconsistent liabilities (ex: wife/ex-wife fighting over insurance
proceeds, insurance co-files interpleader because if pays 1, other will sue)

5) Intervention (Rule 24) – Non-party is interested, but has not been joined
a) Intervention of right: Must be permitted to intervene upon timely application when:
i) Claims an interest relating to subject matter of the action, and
ii) Without intervention, risk they might not be able to protect that interest
b) Permissive intervention: Upon timely application and at court’s discretion, may intervene with a claim
or defense that shares with the main action a common question of law or fact

DISCOVERY

1) Mandatory disclosures (Rule 26a) – What you get without asking

a) Initial disclosures: Within 14 days after a Rule 26 conference, must provide:
i) All other parties the name/contact info of any witness that a party may use to support a claim or
defense;
ii) Copies (or descriptions of) of documents, electronic stored info (ESI), and tangible objects that
may
use to support claim or defense;
iii) Computation of damages sought and supporting docs;
iv) Copies of insurance agreement that may require them to pay
b) Expert disclosure: At least 90 days before trial, if planning to rely on expert testimony, must disclosure
name/contact info of expert and their final report which must include qualifications, opinion, and info
relied on by expert
c) Pretrial disclosures: At least 30 days before trial, must provide:
i) List of witnesses she expects to call;
ii) Witnesses she may call if the need arises;
iii) List of witnesses whose testimony will be given through deposition or transcript;
List of docs or physical evidence she expects to present

2) Scope (Rule 26b) – What you get if you ask for it, dictated by:
a) Relevance: Allowed discovery into any nonprivileged matter that is relevant to any claim or defense
and proportional to the needs of the case
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i) Relevant if likely to make any fact in dispute more or less likely to be true, regardless whether info
would be admissible at trial
b) Work product (WP): Even if relevant, may be protected work product
i) WP = document or tangible object created by party or attorney in anticipation of litigation (post
incident description of events)
ii) Exceptions:
(1) Party can always obtain statement it has made
(2) Can get WP if party has substantial need and can’t get it without substantial hardship
c) Privilege: privileged matter not discoverable
i) Attorney/client – Covers confidential communications between atty and client for the purpose of
obtaining or rendering legal advice
d) Undue burden: Exists in the following circumstances:
i) Discovery is unreasonably cumulative or can be obtained from less burdensome source or in less
burdensome way
ii) Party has had ample opportunity to obtain info themselves
iii) Burden or expense of proposed discovery outweighs its benefits, considering nature of evidence,
amount in controversy, and parties’ resources
e) Experts:
i) Non-testifying expert – Assessing merits of case. No intention to call at trial à undiscoverable
unless party has extraordinary need/no other way to obtain such info (rare)
ii) Testifying expert – Opinions held by those testifying are discoverable to a limited extent. Besides
mandatory report, party can also get communications relating to:
(1) Compensation for expert’s study or testimony;
(2) Data provided by attorney to expert; or
(3) Any assumption attorney asked expert to make in opinion

3) Methods – How to get something you’re allowed to get

a) Interrogatories (Rule 33) = Questions submitted in writing to other party
i) Up to 25 Qs
ii) Can seek facts or contentions
iii) 30 days to respond, must be in writing and objections stated with specificity
b) Requests for admission (Rule 36) = Request to admit truth or fact
i) If admitted, it’s in there for the trial
ii) 30 days to respond, may admit, deny, or state they have made a reasonable attempt to ascertain
truth but lack info to admit / deny
c) Requests for production of docs, tangible items, or access to evidence
i) 30 days to respond, may object as outside scope of discovery
ii) If documents, responding party must provide them as they are maintained in usual course of busi-
ness and label, but with electronically stored information (ESI), can provide copies
d) Requests for mental or physical examination (Rule 35) = Used when party’s mental or physical state is
at issue
i) Available only upon court order. When ordered, party must submit. Examiner must prepare report
detailing exam and it is available to any requesting party
e) Depositions (Rules 27, 30, 31)
i) May depose up to 10, but can get court order for more
ii) May use at a hearing or trial as long as opposing party had reasonable opportunity to be present
and follows these rules:
(1) Deposition of party/party’s designee can be used for any purpose
(2) Deposition of non-party can be used:
(a) to impeach deponent, or
(b) if deponent is unavailable (dead, disappearance) any purpose
f) Subpoenas = discovery from non-parties

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i) Subpoenas duces tecum – Demand for documents

ii) Subpoenas ad testificatum – Demand for testimony
iii) Person served may object as outside scope of discovery or if it requires person to travel >100
miles from home or work

4) Enforcement – What to do if they ignore/don’t play by the rules

a) If they sort of comply:
i) Motion to compel: made after movant has in good faith attempted to confer with resistor
(1) If granted à movant gets fees/expenses for motion
(2) If denied à non-movant may get fees but only if motion was not substantially justified
ii) Sanctions: (after motion to compel, still doesn’t comply)
(1) Court order declaring facts established for requesting party
(2) Court order prohibiting disobedient party from presenting certain claims or defenses
(3) Stay or dismissal of entire action, or
(4) Order of contempt
b) If they don’t comply at all: can immediately seek all sanctions above (except order of contempt) – no
need for motion to compel

PRETRIAL ADJUDICATION

1) Voluntary Dismissal
a) Sometimes, a claimant wants to drop the case. 3 Options:
i) Unilateral dismissal by filing notice any time before D has filed an answer or motion for summary
judgment
ii) Stipulation of dismissal signed by all parties (settlement)
iii) Permission of the court. Generally will grant but if D filed counterclaim, court will not dismiss
unless that claim can remain pending for independent adjudication
b) Dismissal with or without prejudice on future litigation
i) If notice, speculation, or court order specifies, bound by that
ii) If silent, presumed without prejudice in first dismissal, subsequent dismissals are presumed with
prejudice
2) Involuntary dismissals = If P fails to prosecute her case or refuses to comply with a court order or any of
the FRCPs, D can move to dismiss.
a) Operates as an adjudication on the merits (with prejudice) unless the order states otherwise or it’s a
dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19

3) Default judgments = P properly serves D, D never responses. 2 Steps:

a) Entry of default: Clerk must enter a default
b) Entry of a default judgment: After a default has been entered, then this. How issued depends on nature
of P’s claim:
i) Entry by clerk - If claim for a “sum certain” (or by math) and P requests the default judgment, clerk
must enter and assess damages and costs against the D
ii) Entry by the court - If clerk can’t do it, court will, but P must ask for it
(1) If D initially appeared but failed later, court can issue only if D served with written notice of
application for default 7 days before hearing
(2) Judge may hold hearings to calculate $$ damages or other matters

4) Motion to dismiss = motion filed by defending party seeking dismissal of a claim against him
a) Must be filed before an answer is filed à within 21 (where process served) or 60 days (where process
waived)
b) Grounds:
i) Lack of SMJ;

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ii) Lack of PJ;
iii) Improper venue;
iv) Insufficient process (constitutional claim);
v) Insufficient service of process (statutory claim);
vi) Failure to state claim upon which relief can be granted;
(1) Court assumes facts are 100% true, must be plausible, not probable (needs some facts)
vii) Failure to join indispensable party
c) Waiver:
i) Must include in first response (either motion to dismiss or answer) or they are forfeited:
(1) Lack of PJ;
(2) Improper venue;
(3) Failure of constitutional process;
(4) Failure of statutory process
ii) Must raise any time before trial ends, or forfeited:
(1) Failure to state a claim upon which relief can be granted;
(2) Failure to join a necessary party
iii) Defense of lack of SMJ is never forfeited, may be raised anytime, even on appeal

5) Motion for summary judgment (SJ) = No genuine dispute of material fact, and movant is entitled to judg-
ment as a matter of law
a) Step 1 – Assess only the arguments advanced by the movant à have they shown non-movant lacks
sufficient facts and/or law to prevail on claim/defense in question?
i) Two ways:
(1) Pointing out with citations to the record holes in opposing party’s claims or defenses; or
(2) Adducing new evidence to demonstrate that claim or defense cannot be true
ii) Assume witnesses tell truth – no credibility issues
b) Step 2 – Examine non-movant’s response à must bring evidence sufficient for reasonable jury to find
in her favor on a claim or defense
i) Court will look only at non-movant’s evidence (won’t weight against moving party’s) and assume
witnesses are truth tellers – no credibility issues
ii) If non-movant does not produce evidence but just talks pleadings, they’ll lose, but if pleadings are
under oath, does count as evidentiary
c) Motion for SJ must be made any time before 30 days after the close of discovery

TRIAL

1) Trial by Jury – 7th Amendment right to trial by jury in suits at common law, value > $20. Suits at common
law, consider both:
a) Nature of the remedy: Right to trial by jury when seeking monetary relief (not injunctive). If both, right
to trial by jury for any issue of fact underlying a damages claim, even if resolution of that issue also
supports injunctive relief
b) Nature of the claim: Need to be seeking damages AND claim has to be fairly analogized to a 1791
common law claim
c) Demand for Trial by Jury:
i) Any party can exercise. If 10 parties, just 1 has to want it
ii) No later than 14 days after the last pleading directed to the jury-eligible issue is filed, party exer-
cising right must file with court and serve on other parties written demand for jury trial
d) Jury composition: 6-12 members
i) Voir dire
(1) Challenge for cause: Unlimited, unfit to serve but must articulate unfitness
(2) Peremptory challenge: Parties have 3, auto dismissal, no justification needed unless the
strikes give rise to gender/race discrimination
e) Jury verdicts: unless parties stipulate otherwise, must be unanimous

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2) Motion for judgment as a matter of law (JML) (Rule 50a)

a) During jury trial only, court my enter (on own or upon motion), JML if:
i) Party against whom judgment is entered has been fully heard on the issue, and
ii) Party lacks sufficient evidence to prevail on issue necessary to claim or defense

POST-TRIAL MOTIONS

1) Renewed motion for judgment as a matter of law (Rule 50b)

a) If filed losing JML during trial, and then loses at trial, can try again
b) Must be filed within 28 days of entry of judgment (or discharge of the jury if the motion addresses a jury
issue not decided by verdict)
c) In ruling on this new motion, the court may:
i) Allow the verdict to stand;
ii) Enter the opposite verdict; or
iii) Order a new trial (even if a motion for new trial was not made)

2) Motion for new trial

a) Must file w/in 28 days of entry of judgment
b) Grounds:
i) Against the great weight of the evidence – Court can take into account comparative volume and
credibility of evidence
ii) Excessive damages – Jury returns verdict that is “grossly excessive” or “shocks the conscience”
or can also just choose an appropriate amount and let P choose between accepting that amount
and doing a new trial. No remedy for inadequacy
iii) Procedural error or misconduct – only if:
(1) Error or misconduct likely affected result of trial, and
(2) Party objected to error when had opportunity to do so
(a) Ex: Wrongful exclusion of evidence, ex parte communication with judge, incorrect jury
instructions
iv) Newly discovered evidence: could not with reasonable diligence been found before verdict and
will likely change results, new evidence can’t be just for impeachment

3) Motion for relief from judgment (Rule 60b) asks court to undo the judgment, set aside
a) Made within reasonable time, probably after learning of the grounds. First 3 grounds must not be made
later than 1 year from final judgment
b) 6 Grounds:
i) Mistake, inadvertence, or excusable neglect;
ii) Newly discovered evidence;
iii) Fraud, misrepresentation or misconduct by party;
iv) Judgment is void: court lacked SMJ or PJ;
v) Judgment has been satisfied;
vi) Any other reason that justifies relief (catch-all) but can’t be used when above applies

APPEALS AND PRECLUSION

1) Appellate jurisdiction
a) Federal circuit court jurisdiction is limited, can hear only appeals seeking review of:
i) Final judgment
ii) Order pertaining to preliminary injunctive relief
(1) Can immediately appeal district court order granting or denying a preliminary injunction or
TRO
iii) Order pertaining to certification of a class
iv) Order that has been certified by the district court for appeal; or

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(1) May immediately appeal order that has been “certified” if 3 conditions meet:
(a) Order involves a controlling question of law;
(b) Issue of law is one on which there is substantial difference of opinion; and
(c) Immediate appeal will materially advance the ultimate resolution of the action
v) A collateral order
(1) Extremely narrow. Allowed when 3 conditions meet:
(a) Order pertains to matter unrelated to merits (hence “collateral”);
(b) Order conclusively decides a particular issue; and
(c) Delaying appeal until a final judgment has issued would effectively deny appellate
review of the issue

2) Appellate review
a) Standard of review
i) Questions of law à Reviewed de novo – no deference to lower court, and addresses legal issue
as if it has never been addressed
ii) Questions of fact à Will affirm unless clearly erroneous – irrelevant whether the app judges
might have decided factual issue or a jury – only inquiry is if “clearly” was wrong. High standard –
rarely overturn lower findings of fact
iii) Inherently discretionary questions à When trial courts have discretion, reviewed using defer-
ential abuse of discretion standard
b) Harmless error rule: May affirm if there was error but it did not prejudice
c) Waiver: Can waive appeal if fail to challenge the decision at the time the lower court made it

3) Appellate procedure
a) Appellant must file notice within 30 days of the judgment (or within 30 days of the order that is the
subject of the appeal)
i) Exception: Where appeal is on class cert, only have 14 days
ii) If post trial motion has been filed (renewed motion for JMOL, new trial, relief from judgment) and
it is denied, a new 30-day period beings to run from the date of the denial. If granted, judgment is
no longer final and no appeal is permissible unless the order can be certified or characterized as
a collateral order

PRECLUSION

1) Res Judicata (claim preclusion) à bars claimants from relitigating a case they already lost.
a) Elements:
i) Between the same parties and those who are in privity with them;
ii) Arising out of the same transaction or occurrence underlying the prior suit; and
iii) That was determined on the merits by a court with proper subject-matter and personal jurisdiction.
(1) On the merits = involved an inquiry into the merits of P’s claim
(a) Judgment is not on the merits if it’s a dismissal for lack of PJ, SMJ, or venue
(b) Dismissal with prejudice = on the merits
iv) Relationship to compulsory counterclaim rule à if D fails to bring a compulsory counter-claim in
1st suit, precluded from filing it as a P in a later suit

2) Collateral Estoppel (Issue preclusion) à bars relitigation of issues even with different parties.
a) Elements:
i) Must have been litigated and determined in the prior suit

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ii) Issue must have been essential to the judgment

(1) Essential = if decided the opposite way would it have changed the result of the case
iii) Prior suit must have ended in a judgment on the merits
iv) Party against whom preclusion is asserted must have had full and fair opportunity, as well as
incentive, to litigate the issue in the first suit

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