Civil Procedure Ii Outline

Cite Jurisdiction and Appellate Jurisdiction in each problem

Argue in the Alternative

1. Process for Filing an Appeal

2. Appellate Review:

   1. Review of decisions from state courts

   2. Final Judgment Rule

   3. Collateral Order Doctrine

   4. Interlocutory appeals

   5. Writ of Mandamus

3. Subject matter jurisdiction: Analyze all claims under both possibilities

   1. Federal Question: 28 U.S.C. § 1331

   2. Diversity Question: 28 U.S.C. § 1332

4. Personal Jurisdiction: Minimum Contact with State where action is filed

5. Supplemental Jurisdiction: 1) is there a claim with regular jurisdiction and does supplemental claim come from same nucleus of operative facts; if so, 2) in a diversity case, is P making an end-run around diversity requirements; and 3) district courts have discretion (based on a number of factors) whether to grant or deny supplemental claim

6. If diversity case, are there Erie issues? If yes, go through the chart

7. In federal question with supplemental jurisdiction, are there Erie issues?

8. Summary Judgment

9. R41: Dismissal

10. R60b: Relief from Judgment

11. Severance and Consolidation: R42

12. Joinder of Claims: R18

13. Counterclaims R13

14. Crossclaims R13

15. Joinder of Parties R19-20

16. Impleader R14

17. Intervenor R24

18. Interpleader: Statutory and Rule

19. Class Action: 23a requirements

20. Class Action: 23b requirements

21. Class Action: Notice

22. Class Action: Settlement

23. Claim Preclusion: Res judicata

24. Issue Preclusion: Collateral Estoppel

25. Preclusion Against Other Parties (non-mutual collateral estoppel)

26. Recognition of Judgments from other jurisdictions

1. Filing a Notice of Appeal

   1. Party who gets less than they want may appeal, but party seeking to vindicate a specific legal theory may not

   2. Only requirement for appeal is timely filing appeal papers with dct

      1. Payment required, but this is not jurisdictional

      2. Requirements of notice of appeal are liberally interpreted: specification of party taking appeal, designation of judgment appealed from, and name of the court to which appeal is taken

   3. FRAP rules on appeal as of right:

      1. Filing, required within 30 days of entry of judgment FRAP 4(a)(1)

      2. May be extended if there is “excusable neglect” FRAP 4(a)(5) and request to extend is filed within 30 days of initial appeal deadline

      3. Cross-Appeal: Other parties filing appeals must do so within either 30 days of entry of initial order, or 14 days of other party files appeal, whichever is later FRAP 4(a)(3)

      4. Dct may reopen time to file appeal under FRCP 4(a)(6) if:

         1. Moving party did not receive notice of entry of judgment

         2. Motion is filed within 180 days of entry of judgment and 14 days of moving party’s receiving notice

         3. No party would be prejudiced

   4. FRAP rules on appeal by permission:

      1. Must petition the circuit court for permission to appeal FRAP 5

      2. Must be filed within time in FRCP 4(a), unless some other time provided

   5. Federal Rules that toll the time limit for appealing:

      1. R50b motion for judgment

      2. R52b motion to amend the findings

      3. R59 motion for new trial

      4. R59e motion to alter or amend judgment

      5. R60 motion for relief from the judgment

      6. R54 motion for attorney’s fees but only if the DCt has extended the time for appeal under R58

2. Appeal Mechanisms

   1. Review of decisions from state courts: 28 U.S.C. 1257: Under Cox Broadcasting Corp. v. Cohn, p. 1338, there are for situations in which the Supreme Court may review a state supreme court decision before final determination made of all of the issues:

      1. Cases in which there are further proceedings but where for one reason or another the federal issue is conclusive or the outcome of further proceedings is preordained

      2. Cases where federal issue, finally decided by highest court of state, will survive and require decision regardless of outcome of future state-court proceedings

      3. Situations where fed claim has been finally decided, with further proceedings on the merits in state courts to come, but in which later review of federal issue cannot be had regardless of ultimate outcome of case: i.e. where the person, if they lose, would be barred from further appealing federal issues

      4. Situations where fed issue has been finally decided in state courts with further proceedings pending in which party seeking review might prevail on merits on nonfederal grounds, thus rendering unnecessary review of fed issue by Supremes, and where reversal of state court on federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, state proceedings still to come

   2. Final decision rule: 28 USC 1291: Parties may only appeal final decisions of courts. However, three mechanisms allow review before final judgment:

   3. Interlocutory appeals: 28 USC 1292

      1. 1292(b): When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

      2. 1292(a): Interlocutory orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;

         1. (2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property;

         2. (3) Interlocutory decrees of such district...

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