Federal Civil Procedure

Personal Jurisdiction
1. Long-arm statute
a. Does the states long arm statute apply to D?
i. No
1. No PJ
ii. Yes
1. Go to constitutional analysis
2. Constitutional Analysis
a. If PJ satisfies the statutory analysis, it must be constitutional
i. Have to be sufficient minimum contacts for PJ to be constitutional and fair
b. Was D served with process while physically present in the forum state
i. Yes
1. PJ is constitutional under all circumstances
ii. No
1. PJ will be constitutional if you have General or Specific
jurisdiction
3. General Jurisdiction
a. Examine general contacts with forum state
i. If D is so involved with the state that the state can have PJ over anything
the D does in the state
ii. Contact/purposeful availment must be systematic (not just casual/indirect)
1. If D engages in continuous and systematic activity in the forum
state, Court can find sufficient basis for PJ in any cause of action
iii. Ds domicile state will always have general jurisdiction
4. Specific Jurisdiction
a. Specific jurisdiction is jurisdiction over a cause of action that arises out of Ds
contacts with the forum state minimum contacts test
b. Minimum Contacts Test
i. State interest
ii. Purposeful availment
iii. Arising out of contact
iv. Reasonableness/Convenience of the forum
c. D must have action by the D that is purposefully directed toward the forum
5. Summary
a. Contacts (What are Ds contacts like with the forum state)
i. Purposeful availment
1. D did voluntarily and purposefully reach out to the forum state
ii. Foreseeability
1. Is it foreseeable that the D could be sued in the forum state
b. Relatedness
i. Is cause of action related to contacts?
1. If yes specific jurisdiction

a. Must be fair
b. Is there an undue burden on D/witnesses
c. State interest in being the forum
d. P interest in having a certain forum
2. If no general jurisdiction
a. D must be at-home in the forum
i. Where domiciled/incorporated/principal place of
business
6. Tennessee Personal Jurisdiction
a. In personam
i. Power over the person
b. In Rem
i. Power over specific item of property
c. Quasi in rem jurisdiction
i. Power over particular individuals with respect to property within courts
control
d. In TN
i. Must have sufficient minimum contacts with TN that jurisdiction does not
offend traditional notions of fair play and substantive justice
1. Established by finding that the D engaged in activities directed
towards TN that give rise to an expectation of being subject to suit
there
2. Long-arm statute provides for jurisdiction from
a. Transacting business in TN
b. Committing a tort in TN
c. Ownership of real property in TN
d. Insuring a risk in TN
e. Contract providing for services in TN
3. Also any basis consistent with due process
In-rem/Quasi in rem jurisdiction
-

Jurisdiction not over D, but over Ds property in the forum state

o Ds contacts must meet the constitutional test

Subject Matter Jurisdiction

1.

Does Court have PJ?

a. No
i. STOP
b. Yes
i. Test for SMJ
ii. Fed ? and Diversity
2. Federal Question Jurisdiction (arise out of federal law such as US Constitution, Federal
Statutes, Treaties)
a. Was complaint well pleaded

i. Federal question must appear as part of Ps cause of action as set out in the
complaint
1. Ds answer/defenses are irrelevant
2. If not in complaint, no fed question jurisdiction
b. If yes,
i. You have SMJ under Federal Question Jurisdiction
3. Diversity Jurisdiction
a. Must exceed $75,000 amount in controversy
b. Must be between citizens of different states, OR
i. Citizens of a state and foreigners, OR
ii. Foreign state and citizens of a state
c. Diversity must be complete
i. No party on side of a dispute may be a citizen of the same state as a pary
on the other side
4. Supplemental Jurisdiction
a. Once a case is in federal court, you have to test every single additional claim for
SMJ
b. Every individual claim in federal court must have SMJ
i. If an additional claim doesnt satisfy diversity or fed ?, must look at
supplemental jurisdiction
c. Supplemental jurisdiction
i. Provides a way to get non-federal, non-diversity claims into federal court
1. A non-federal, non-diversity claim can be heard in federal court
UNLESS it is: (Cant dodge diversity with supplemental
jurisdiction)
a. Asserted by a P
b. In a diversity of citizenship case AND
c. Asserted against a citizen of the same state as the P
2. Claim must share a common nucleus of operative fact with the
claim that originally invoked SMJ
a. Always satisfied if the claim arises from same claim or
transaction as the underlying claim
3. Certain claims cannot invoke supplemental jurisdiction
a. In diversity cases, the P cannot use supplemental
jurisdiction to overcome a lack of diversity
4. Supplemental jurisdiction is under the discretion of the court
5. Tennessee SMJ
a. Two courts
i. Circuit
1. Torts w/ unliquidated damages
2. Suits vs. the state
3. Landlord-tenant
4. Eminent domain
ii. Chancery
1. Probate/estate
2. Boundary disputes

Removal
1. D who is sued in state court might be able to remove the case to federal court
a. Xfers case from state trial court to federal trial court
b. Must be done w/in 30 days of service of process
i. All Ds that are served with process are required to join in the removal
2. Generally, any case that meets the requirements for diversity or FQ jurisdiction can be
removed
a. If you are removing based on diversity
i. No removal if ANY D is a citizen of the forum AND
ii. No removal more than one year after the case was filed in state court
3. Process for removal
a. P sues D in state court
b. D wants to remove to federal court
c. Files notice of removal IN FEDERAL COURT, by stating grounds of removal
d. P can move to remand to state court

What Law applies?

1. Generally a federal court, in matters of diversity jurisdiction, will apply the substantive
law of the state in which it sits
2. Federal Court can apply its OWN procedural rules (FRE, FRCP), if they conflict with
state rules
a. Federal law determines whether something is substantive or procedural
3. If there is a federal law that is directly on point, that conflicts with state law, the federal
law wins via supremacy clause
a. Will especially apply if it doesnt modify substantive rights
4. If there is no federal law on point, the federal judge must apply state law if the issue is
substantive (Federal court MUST apply state law on these if in diversity)
a. Elements of a claim or defense
b. Statutes of limitation
c. Rules for tolling statutes of limitations
d. Conflict/choice of law rules
5. If there is no federal law on point, and the issue is not a-d above, judge must determine
whether the issue is substantive. Factors to weigh:
a. Outcome determinative: Would applying or ignoring the state rule affect the
outcome of the case? If so, probably substantive and should use state law.
b. Balance of interests: Does either federal or state system have a strong interest in
having its rules applied?
c. Avoid forum shopping to federal court.
6. There is no federal common law, so sometimes federal courts have to fill the gap,
especially with new statutes, etc.

Venue
1. Which federal court to sue in
2. P can lay venue in any district where:
a. All Ds reside
i. If the case has been removed from fed -> state court, then venue is set in
the
ii. Ds residing for venue purposes
1. Human where domiciled
2. Business In ALL districts where the business is subject to PJ
a. State of incorp + PBB + minimum contacts
b. A substantial part of the claim arose
3. Transfer of Venue
a. Federal district court may transfer the case to another federal district court. Must
be a court that the case could have been filed in.
4. TN Venue
a. County of Ds residence
b. County where claim arose
c. Must be filed in county where land is located for land actions
d. FOR DIVORCE
i. If common county of residence there
ii. If not
1. If D resides in another TN count, Ds county
2. If D resides in another state, Ps County
TN Statutes of limitations
-

Begin running when P discovers, or should have discovered that a cause of action exists
o Slander 6mo.
o 1 yr
PI
Wrongful death
Workers comp
Prof malpractice
Libel
Malicious prosecution
False Imp
Breach of fiduciary duty
Consumer protection act
Tennessee Human rights act
Civil rights statutes before 1990
o Will contest 2 years from probate
o 3 yrs
Property damage
Economic loss
Conversion/detention of personal property

o Breach of sale of goods 4 years

o 6 yrs
Ks for services/sale of realty
Forcible entry/eviction
Promissory note with due dates
Collecting demand notes
o The essence of the complaint will dictate which SoL applies
Repose statutes
o Extinguish cause of action, no discovery rule
o Products liability
w/in 1 year of expiration date
o Med mal/corp. breach of fiduciary duty
3 yrs from action

Service of Process
1. D entitled to notice of suit
a. Summons + copy of complaint
2. Can be served by any nonparty 18+ y.o.
3. How?
a. Personal Service
i. Papers given to D personally
ii. Substituted service
1. Process left with someone else, etc., is ok IF
a. Made at Ds usual abode
b. You serve someone of suitable age and discretion who
resides there
iii. Service on agent
1. Process can be delivered to Ds agent which is ok if receiving
service is within the scope of the agency
b. Other
i. Can use whatever methods for serving process that are permitted by state
law of the state where the federal court sits or where service is made
1. Ex. Service by mail
c. Waiver by mail
i. Mail to D a copy of the complaint and copies of a waiver form with a
prepaid means of returning the form. If D executes and mails waiver form
to P within 30 days, D waives formal service of process.
4. Return of service
a. The person who serves process must file a report with the court detailing how
service was made.
b. If server was a civilian, the report is by affidavit (sworn statement, under oath)
5. Service of other documents
a. Done by mailing to the partys lawyer

Discovery
1. Required Disclosures
a. Must be produced even if no one asks for it
i. Must be made within 14 days of Rule 26(f) conference
ii. Must disclose.
iii. Identities of persons who have discoverable info that the disclosing party
may use to support your claims or defenses
iv. Documents and things that you may use to support your claims or
defenses. You may produce copies, or a description of these things
v. Computation of monetary relief and documents supporting it
vi. Insurance coverage that might cover all or part of the judgement in the
case
2. Expert Witnesses
a. When the court directs, each side must identify expert witnesses who may be
used at trial
i. ONLY if you plan to use them at trial
3. Required Pretrial Disclosures
a. No later than 30 days before trial, must give detailed information about trial
evidence including:
i. Identity of witnesses to testify live or by deposition
ii. Documents/ESI/Things to be introduced at trial

Discovery Tools
1. Can begin requesting discovery after the 26(f) conference
2. How can you get information from nonparties?
3. Depositions
a. Person gives live testimony in response to questions by counsel or pro se parties.
b. Questions are usually oral, but can be written
c. Deponent testifies under oath
d. Deposition is recorded by sound or video or stenographic ally and a transcript can
be made
e. Depositions are made from present recollection i.e. deponent doesnt have to
bring documents/notes with them
f. You can depose either a party or a nonparty
i. Need to subpoena a non-party, party can be served notice of a deposition
ii. Subpoena duces tecum requires the deponent to bring materials with them
g. Cannot take more than 10 depositions or depose the same person twice without
permission of the court
4. Using depositions at trial
a. Impeach the deponent
b. Any purpose if the deponent is an adverse party

5.

6.

7.

8.

9.

c. Any purpose if the deponent (regardless of whether a party) are unavailable at

trial
i. Unless that absence was procured by the party seeking to introduce the
evidence
Interrogatories
a. Written questions, to be answered in writing under oath.
i. Can send ONLY to parties
ii. Parties must respond w/in 30 days from service
iii. Must answer from information that is reasonably available to you
iv. Only 25 questions total can be asked
v. If the answer to interrogatories can be found in business records and it
would be overly burdensome to find the answers, the responding party can
allow the requesting party to have access to the records
Requests to produce
a. Requests that someone make available for review and copying
documents/things/ESI
i. Requesting party can ask for a particular form for the production to be in
Medical Exam
a. Must get a court order
i. Must show that the persons health is in actual controversy and good cause
b. Can get an exam either for the party or someone in the partys custody or legal
control
c. Party seeking the order chooses the licensed person to perform the exam
Request for admission
a. A written request that someone admit a thing
b. They can only say they dont know the answer if they make a reasonable inquiry
and cannot find enough info to admit or deny
c. Often used to authenticate documents
d. You sign these under oath
i. Counsel has to certify
1. The request is warranted
2. It is not interposed for improper purpose
3. It is not unduly burdensome
e. After you respond to discovery, circumstances in the real world will probably
change. In light of these circumstances, your response to a required disclosure,
interrogatory, request for production, etc. you must supplement your
response/complaint, etc.
Scope of Discovery
a. What can you discover?
i. Anything relevant to a claim or defense
1. This includes things that are reasonably calculated to lead to the
discovery of admissible evidence
2. Ex., something that is particularly harmful to you may not have to
be disclosed under the required disclosures, but may be
discoverable using discovery tools.
ii. Proportionality

1. The court has the authority to limit discovery if the request is

cumulative, or if the burden outweighs the importance of the issue
at hand
iii. Privilege
1. You can object to discovery on the basis of evidentiary privilege
a. Ex. Confidential communications b/w atty-client
iv. Work-Product
1. Trial preparation materials prepared in anticipation of litigation
2. Generally protected from discovery
a. Doesnt have to be generated by a lawyer, but an
representative of a party is enough
3. Getting work-product
a. Witness statement is discoverable if can show
i. Substantial need
ii. No other way to get it
iii. This is qualified work product
b. Absolute work product
i. Cannot be discovered
1. Mental impressions
2. Opinions
3. Conclusions
4. Legal theories
4. Asserting privilege or work product
a. If you withhold discovery or seek a protective order based
on privilege or work product you need to expressly state
this and describe the material in detail
i. Date, author, recipient, etc.
ii. Judge then determines if it is protected
b. If you accidentally produce privileged/protected material,
you should notify the other party promptly
i. They then must return, sequester, or destroy the
material unless the court finds the protection has
been waived
10. Enforcing discovery rules
a. Protective order
i. If the responding party thinks that a discovery request subjects it to
annoyance, embarrassment, undue burden, or expense, or the request is
cumulative you can move for a protective order
ii. Must certify in good faith that you tried in good faith to get the
information without a court order have to meet and confer
1. If the court agrees it can
a. Deny discovery or
b. Limit discovery or
c. Permit it only on certain items
b. Partial response to discovery request
i. Responding party answers some questions but objects to others

ii. Requesting party will make a motion to compel answers, and the court
will decide whether the objections were legitimate
c. No response to discovery request
i. Responding party fails completely to participate/respond to discovery
ii. May lead to sanctions
d. Sanctions
i. Party seeking sanctions must certify that they tried in good faith to get the
information without court involvement
1. Partial Response
a. Two steps
i. Move for an order compelling the party to answer
the unanswered questions, plus costs (atty fees) of
bringing the motion
ii. If the party violates the compelling order, RAMBO
sanctions + costs + fees AND could be held in
contempt for violating a court order
2. No response
a. RAMBO sanctions plus costs
ii. RAMBO sanctions
1. Gives judge a choice of
a. Establishment order (establishes facts as true)
b. Strike pleadings of the disobedient party (as it relates to
discovery)
c. Disallow evidence from the disobedient party (as to
discovery)
d. Dismiss Ps case if bad faith is shown
e. Enter default judgment against D if bad faith is shown

Multiparty Litigation
1. Proper Ds and Ps
a. Arise from same T/O
b. Raise at least one common question
2. Necessary and indispensable parties
a. Court might force some nonparty to join the case
i. If the nonparty is necessary
b. Who is necessary?
i. Without the absentee party, the court cannot accord complete relief among
the existing parties (in order to avoid multiple suits) OR
ii. Absentee partys interest may be harmed if he or she is not joined OR
iii. Absentee party claims an interest that subjects a party (usually D) to a risk
of multiple obligations
c. Can the absentee party joined
i. If you are necessary, we have to see if joinder is feasible
1. Is there PJ over the party?

2. Will joining destroy diversity?

ii. If it is feasible court will join you
d. If absentee party cannot be joined
i. Court can proceed without you OR
ii. Dismiss the entire case
iii. Court considers
1. Is there an alternative forum available
2. What is the actual likelihood of harm
3. Can the court shape relief to avoid harm
3. TN Joinder
a. Parties can be joined if
i. Same t/o
ii. Common questions of law or fact
b. Claims
i. Must be joined if same t/o
ii. Can be otherwise
c. Indispensable parties
i. Rarely exist except in a lawsuit to condemn an easement to a landlocked
property must join nearby landowners

Counterclaim and Crossclaim

1. Counterclaim
a. Claim against an opposing party
i. Once someone asserts a claim, you are an opposing party
b. D can assert this in their answer
c. 2 types of counterclaims
i. Compulsory
1. Arises from the same T/O as Ps claim
a. Waived if not filed
2. NO OTHER CLAIM IN THE UNIVERSE IS COMPULSORY
LIKE THIS
ii. Permissive
1. Does NOT arise from same t/o as Ps claim
2. Not required to file it in the same action
3. Have to assert SMJ independently
2. Crossclaim
a. Claim against a co-party
b. MUST arise from same T/O as the underlying action
c. Not compulsory can either assert it here or in a separate suit

Impleader

1. D bringing someone new into the litigation

2. Primarily used by a D to shift liability
a. If D is found liable, they will try to get someone else to pay
b. Insurance, indemnity, etc.
3. Steps
a. D files a 3rd party complaint naming the third party defendant and
b. Serve process on the third party defendant
4. Right to implead w/in 14 days of serving answer, after that have to ask for permission
5. P can assert claims against third party defendant if they arise from the same t/o
6. Must address SMJ on each claim independently
a. Can always try supplemental jurisdiction
7. Third party defendant isnt actually a party to the suit, so diversity doesnt matter

Intervention
1. Nonparty brings themselves into the case. Can come in to assert a claim (P) or defend a
claim (D). Court can move there sides.
2. Intervention of right
a. 3rd partys interest may be harmed if they are not joined and are not adequately
represented in the litigation.
3. Permissive intervention
a. 3rd partys claim or defense and the pending case have at least one common
question.
b. At the discretion of the court
c. Usually ok unless intervention would cause delay/prejudice to a party
4. Must have SMJ over each claim

Class Action
1. Requirements
a. Numerosity
i. Too many class members for practicable joinder. No magic #
b. Commonality
i. There is some issue of law or fact that is common to all class members, so
resolution of that issue will generate answers for every member of the
class in one stroke
c. Typicality
i. Reps claims are typical of those of the class
d. Representative adequate
i. The class representative will fairly and adequately represent the class
2. Have to fit the class within one of three types
a. Prejudice
i. Class treatment necessary to avoid harm either to class members or to the
non-class party

b. Class seeks an injunction or declaratory judgment because D treated the class

alike
c. Damages
i. (1) Common questions predominate over individual questions AND
ii. (2) Class action is the superior method to handle the dispute
iii. In this class, the court has to notify the members
d. For SMJ, only consider the citizenship of the rep, not class members
3. TN Class action ssame as federal

Adjudicating the dispute

Preliminary Injunctive Relief

1. Worried that before a case can go to trial, D may do (or fail to do) something that will
harm or prejudice Ps case.
a. P wants injunctive relief court order that D will either
i. Do something
ii. Refrain from doing something
b. Courts nervous about this
2. T\his is a preliminary injunction requires a hearing
a. Purpose is maintaining the status quo until the court can hear the claim on the
merits
i. Cant ever be granted ex parte
b. Appellant has the burden of showing that:
i. He is likely to suffer irreparable harm if the injunction isnt issued
ii. He is likely to win on the merits of the underlying case
iii. The balance of hardship favors the appellant
iv. Injunction is in the public interest
c. Granting of an injunction is always discretionary
d. If granted, applicant must post a bond

Temporary Restraining Order (TRO)

1. Can be issued ex parte IF
a. Applicant files a paper under oath clearly showing that if the TRO is not issued,
he will suffer immediate and irreparable harm if he has to wait for a hearing on a
preliminary injunction
b. Applicants lawyer must certify in writing that he has made efforts to give oral or
written notice to D or Ds lawyer
2. If the TRO is issued, the applicant must post a bond to cover the costs and damages if it
turns out the TRO is wrongful

3. TRO must state its terms with specificity, describe in detail what D must do/refrain from
doing, and state WHY the TRO was issued, and why the threatened injury was
irreparable
4. If the TRO is issued it must be served on the D as soon as possible
a. D can move to dissolve or modify the TRO
5. TRO only effective for 14 days and can be extended once
a. Purpose isnt for it to be long-term, just to last to get you to a hearing for a
preliminary injunction

Pretrial Adjudication
1. Voluntary dismissal
a. P can make a motion for voluntary dismissal at any time
b. Have a right to a voluntary dismissal (notice of dismissal) before D files answer
or motion for sum. Judg.
c. If P files a timely notice of dismissal, the case is dismissed w/o prejudice
i. P can re-file
d. You can only do it w/o prejudice once, if you file a notice of dismissal again the
case is dismissed with prejudice
2. Default and default judgment
a. D does not respond to the complaint in time (21 days after being served with
process or 60 days from mailing of waiver if you waived service)
b. Default notation by the court clerk on the docket sheet of the case
i. P has to actually file for default
ii. Default cuts off Ds right to respond
iii. Does not entitle you to recover
c. Default judgment
i. Clerk of court can enter judgment if:
1. D made no response at all
2. Claim itself is for a certain sum of money
3. Claimant gives an affidavit of the sum owed AND
4. D is not a minor or incompetent
ii. If any of those is not true
1. P can apply to judge for default judgment
2. Judge will hold a hearing
a. D only gets notice of the hearing if he has appeared in the
case
b. Cant get more via default judgment then you asked for in
complaint
iii. Setting aside default judgment
1. D can move to set aside by showing good cause + a viable defense
a. Excusable neglect ex.
3. Motion to Dismiss for Failure to State a claim
a. Filed in pretty much every case
b. Whether the case belongs in the stream of litigation at all

c. Court ignores Ps legal conclusions and looks ONLY at Ps allegations of fact and
asks if these facts were true, would P win a judgment
i. If the answer is no, the law doesnt recognize a claim on those facts so the
case should be dismissed
ii. Some courts will let the P amend their complaint
d. If the motion is filed AFTER the D has filed an answer, its a motion for
judgment on the pleadings
e. 21 days from service in federal
f. 30 days in TN
4. Motion for summary judgment
a. 30 days in TN
b. P stated a claim, so in the stream of litigation
c. Purpose of trial is to resolve disputes of fact
d. Moving for summary judgment, moving party must show
i. There is no genuine dispute of material fact AND
ii. That the moving party is entitled to judgment as a matter of law
e. Summ judg is discretionary
f. Court can and will look at evidence
i. Affidavits
ii. Declarations
iii. Deposition testimony
iv. Interrogatory answers

Conferences and meetings

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Rule 26(f) Conference

o 21 days before scheduling conference, parties will meet and confer
o Discuss production of required initial disclosures, claims, defenses settlement and
issues about preservation of discoverable information
Scheduling Order
o Unless local or court rules say otherwise, court will enter scheduling cut-offs for
joinder, amendments, motions, completion of discovery, etc.
Roadmap of litigation
Pretrial conferences
o Designed to foster settlements
o Will also be used to determine the issues that will be determined at trial

Trial, judgment, and post-trial motions

1. Jury Trial
a. Jury will determine the facts and return a verdict
b. If no jury, the judge will determine the facts
2. Right to jury trial in federal court
a. 7th amendment preserves the right to a jury trial in civil actions at law

3.

4.

5.

6.

i. Doesnt apply to suits in equity

b. If law and equity, split trial
i. Jury issues usually handled first
th
c. 7 amendment not incorporated against the states
Selecting a jury
a. Voir dire
i. Each side can ask the court to strike/remove potential jurors
ii. Types of challenges
1. For cause
a. Potential juror will not be impartial
i. No limit to number of challenges for cause
2. Peremptory
a. Normally didnt have to state a reason
b. Get 3 per side
c. Must be used in a race and gender-neutral manner
i. Jury selection is a state action so you cannot be
discriminative
iii. Jurors on a civil jury
1. Minimum 6
2. Max 12
3. All jurors will participate in the verdict unless they are excused for
good cause
4. Must be unanimous unless the parties agree
Jury instructions
a. Jury decides facts, but are instructed by the judge on the law
b. Parties submit proposed jury instructions to the judge
c. Before final argument and instruction, the court will inform the parties of what
instructions it will give
i. Parties can make specific objections to the instructions
ii. Waive these objections if you dont make them before the jury is charged
Types of verdicts
a. General
i. Who wins and what the relief is
b. Special
i. Jury answers specific questions about the facts in dispute and the judge
reaches conclusions based on those facts
c. General w/ special interoggatories
i. Jury gives a general verdict but must also answer specific questions
submitted to it
ii. To force the jury to consider important issues
Juror misconduct
a. Verdict may be impeached on external maters
i. Bribed jurors, etc.
ii. EXCEPT
1. Juror cannot testify about tings occurring or statements made
during jury deliberations

a. Only to show extraneous prejudicial information or outside

influence
b. Nonjury trial
i. Judge required to state their findings of fact and conclusions of law in
writing
c. Motions at and after trial
i. Judgment as a matter of law/directed verdict
1. Judge rules for a side before case would go to the jury
a. Judge has to rule on the evidence presented at trial
b. Only proper if reasonable people could not disagree on the
result
c. Like summary judgment but applies at trial not before
i. Court views the evidence in the light most favorable
to the non-moving party
ii. Can only move for this after the other side has been
heard
ii. Renewed judgment as a matter of law
1. Same as above but after trial
a. Can overturn a jury verdict
b. Must do w/in 28 days of judgment
c. HAVE TO HAVE MADE JMOL @ TRIAL
iii. Motion for a new trial
1. Jdmt is enterd but some error at trial requires to start over
2. Can be based on any non-harmless error that makes the judge
approve it
3. Must be done within 28 days of judgment
4. Reasons
a. Judge gave an erroneous jury instruction
b. New evidence that could not have been gotten before with
due diligence
c. Misconduct by juror or party or lawyer
d. Judgment is against the weight of the evidence (serious
error)
e. Inadequate or excessive damages
5. Ex. Party entitled to RJMOL but waived because they didnt move
for JMOL move for new trial
d. Remittitur and Additur
i. Remittitur
1. Lowering award to P
2. Give P the choice of lowering damages or going through a new
trial
ii. Additur
1. Damages so low it shocks the conscience so judge increases
2. Unconstitutional in fed ct (7th amendment)
e. Motion for relief from order or judgment
i. Set aside a judgment that has been entered

ii. Grounds/Timing
1. Clerical error
a. Can be done anytime
2. Mistake, excusable neglect
a. Done w/in reasonable time (no more than 1 yr)
3. New evidence that could not have been discovered with due
diligence for a new trial motion
a. Done w/in reasonable time (no more than 1 yr)
4. Judgment is void (No SMJ)
a. Reasonable time (no maximum)

Appeal
1. Final judgment rule
a. Can only appeal from final judgments
b. Ultimate decision by the trial court on the merits of the entire case
c. File notice of appeal in trial court within 30 days of entry of final judgment
d. Question: Is there anything left for the TC to do on the merits of the case?
2. Interlocutory Review
a. Appealable non-final judgments
b. Reviewable as a right
i. Orders granting, modifying, refusing preliminary or permanent injunctions
c. Interlocutory Appeals Act
i. Allows appeal of a nonfinal order if
1. Trial judge certifies that it involves a controlling issue of law
2. As to which there is substantial ground for difference of opinion
AND
3. CoA has agreed to hear it
d. Collateral order exception
i. Appellate court has discretion to hear ruling on an issue if it
1. Is distinct from the merits of the case
2. Involves an important legal question and
3. Is essentially unreviewable if the parties wait for a final judgment
3. Standard of review
a. When a district judge decides a question of law
i. De novo review review with no deference
b. In a non-jury trial when the district judge determines questions of fact the CoA
will affirm unless findings are CLEARLY ERRONEOUS
i. Due regard must be given to the trial judges ability to assess the
credibility of witnesses at trial
c. In a jury trial when the jury decides questions of fact, the CoA will affirm unless
reasonable people could not have made the finding
d. On discretionary matters the CoA will affirm unless the trial judge abused
discretion
e. No reversal if the error is harmless

Preculsion
1. Basic Idea
a. Looking at the preclusive effect of earlier judgments on the merits
b. Look at whether a judgment already entered precludes litigation of any matters in
another case
2. Claim Preclusion (Res Judicata)
a. Can only sue on a claim once
i. Requirements
1. Case 1 and Case 2 brought by the same claimant against the same
2. Case 1 ended in a valid final judgment on the merits
a. Unless the court says otherwise, a judgment will be on the
merits unless the judgment was based on jurisdiction,
venue, or lack of an indispensable party
3. Case 1 and Case 2 asserted the same claim
a. Majority view: Claim is any right to relief arising from a
T/O
b. Minority view: There are separate claims for property
damages and for personal injuries because those are
different rights
3. Issue Preclusion (Collateral Estoppel)
a. Narrower then claim preclusion
b. Issue was litigated in case 1, same issue comes up in case 2. If issue preclusion
applies, we will not allow the issue to be relitigated in case 2. Deem it as
established in case 2.
c. Requirements
i. Case 1 ended in a valid, final judgment on the merits
ii. Same issue was actually litigated and determined in Case 1
iii. The issue was essential to the judgment in Case 1
d. Who can issue preclusion be asserted against?
i. Can only be asserted against someone who was party to case 1
1. Or represented by a party in case 1
e. Who can USE issue preclusion?
i. Can be used BY someone who was in case 1
ii. Nonmutual issue preclusion (party attempting to use wasnt in case 1)
1. Nonmutual defensive issue preclusion
a. Party using it not in case 1 and is D in case 2
i. As long as the person its being used against had a
chance to litigate the issue in case 1 most courts will
say ok
2. Nonmutual offensive issue preclusion
a. Party using it not in case 1 and is P in case 2
b. Most courts will say no factors
i. Clear trend to allow if not unfair

1. Full/fair opportunity to litigate in case 1

2. Incentive to strongly litigate in case 1
3. Could the P in case 2 have joined in case 1?
4. Most courts STILL going to say no, but
federal courts are starting trend to allow it