MBE CIVIL PROCEDURE: Appeals & Preclusion

Appeals court cannot overturn a district court’s findings of fact unless

Clearly erroneous

Appeals courts can hear cases without final judgment if there is a basis for an interlocutory appeal.

interlocutory appeal.

Appeals courts can only hear cases with a final judgment on the merits of the whole case (i.e. there is nothing left for the court to address)

final judgment rule

Can a district court order an interlocutory appeal Yes, the judge may do so in a written order stating: Order being appealed involves a There is a substantial ground for difference of opinion; and Decision on the appeal could help bring about the end of litigation 28 USC § 1292(b) Any P is diverse

controlling question of law;

Can a district court order an interlocutory appeal Yes, the judge may do so in a written order stating: Order being appealed involves a controlling question of law; There is a and Decision on the appeal could help bring about the end of litigation 28 USC § 1292(b) Any P is diverse

substantial ground for difference of opinion;

Can a district court order an interlocutory appeal Yes, the judge may do so in a written order stating: Order being appealed involves a controlling question of law; There is a substantial ground for difference of opinion; and Decision on the appeal could help bring about the 28 USC § 1292(b) Any P is diverse the interests

end of litigation

collateral order doctrine permits a party to appeal an interlocutory order if the order: the disputed question; Resolves an important issue that is completely separate from the merits; and Is effectively unreviewable on appeal from a final judgment

Conclusively determines

collateral order doctrine permits a party to appeal an interlocutory order if the order: Conclusively determines the disputed question; Resolves an important issue that is from the merits; and Is effectively unreviewable on appeal from a final judgment

completely separate

collateral order doctrine permits a party to appeal an interlocutory order if the order: Conclusively determines the disputed question; Resolves an important issue that is completely separate from the merits; and Is effectively on appeal from a final judgment

unreviewable

de novo review : When the appeals court reviews the trial court’s findings or without deference. Allows appeals court to reach an independent conclusion as to the correct legal interpretation.

“from the new”

Does claim preclusion bar a party from bringing the claim again if the claim is voluntarily dismissed

No

Does claim preclusion bar a party from bringing the claim again if the claim was involuntarily dismissed

Yes

Gives appeals court authority to review lower court decisions for abuse of judicial authority.

writ of mandamus

If a case is dismissed for lack of SMJ, PJ, or venue, or indispensible parties under Rule 19, is the judgment on the merits

No

If a post-trial motion has been filed and the court denies the motion, when must the appellant file a notice of appeal

30 days from the denial.

In the pleading stage, when must claim preclusion be raised as a defense Since claim preclusion is an affirmative defense, it must be raised in D’s answer or else it is considered waived.

In D's answer

Injunctive orders Orders appointing or refusing to appoint a receiver Orders directing the sale or disposal of property Patent order that is final except for accounting Order denying arbitration (9 USC § 16) 28 USC § 1292

interlocutory orders that are appealable as a matter orders of right

Interlocutory appeals are rarely granted, because interlocutory orders are 28 USC § 1292

not final.

List the standards of review used by appellate courts (legal rulings) Clearly erroneous (factual findings) Abuse of discretion (discretionary rulings) Plain error (an error that the parties did not preserve by objecting to it at the time it occurred)

De novo

List the standards of review used by appellate courts De novo (legal rulings) (factual findings) Abuse of discretion (discretionary rulings) Plain error (an error that the parties did not preserve by objecting to it at the time it occurred)

Clearly erroneous

List the standards of review used by appellate courts De novo (legal rulings) Clearly erroneous (factual findings) (discretionary rulings) Plain error (an error that the parties did not preserve by objecting to it at the time it occurred)

Abuse of discretion

List the standards of review used by appellate courts De novo (legal rulings) Clearly erroneous (factual findings) Abuse of discretion (discretionary rulings) (an error that the parties did not preserve by objecting to it at the time it occurred)

Plain error

Note: Collateral order doctrine is extremely narrow and rare; has only been applied to cases involving and

immunity, double jeopardy

Orders issued during litigation that are not final. 28 USC § 1292.

interlocutory orders

P tries to prohibit D from relitigating issue D previously lost against another P. ⚠️ Note: Rarely granted

non-mutual offensive collateral estoppel

permits a party to appeal an interlocutory order if the order: Conclusively determines the disputed question; Resolves an important issue that is completely separate from the merits; and Is effectively unreviewable on appeal from a final judgment

collateral order doctrine

Preclusion ("collateral estoppel") is much than claim preclusion (which bars whole claim, not just the issue). disclosures: 30 days before trial. FRCP 26(a)(3)(B)

narrower

Prohibits relitigating the same claim once a final judgment on the merits has been issued.

doctrine of claim preclusion (res judicata)

Prohibits relitigation of issues of fact or law that have been previously determined. ⚠️ Note: Much narrower than claim preclusion (which bars whole claim, not just the issue).

preclusion (“collateral estoppel”)

Since claim preclusion is an it must be raised in D’s answer or else it is considered waived.

affirmative defense

Some interloctory orders are appealable as a matter of right (e.g. denial of class certification), while others are only appealeable pursuant to analysis under the 28 USC § 1292

collateral order doctrine.

Type of error used to review factual findings

Clearly erroneous

Type of error used when parties fail to object

Plain error

What are examples of valid 1) Decision after full adjudication 2) Default judgment if court had valid PJ & SJ 3) Judgment as a matter of law 4) Summary judgment

final judgments on merits

What are the required elements of claim preclusion A valid Same parties (same P against same D); and Same claims (arising out of same transaction or occurence)

final judgment on the merits;

What are the required elements of claim preclusion A valid final judgment on the merits; (same P against same D); and Same claims (arising out of same transaction or occurence) Washington, 326 U.S. 310 -1945

Same parties

What are the required elements of claim preclusion A valid final judgment on the merits; Same parties (same P against same D); and (arising out of same transaction or occurence)

Same claims

What are the requirements of issue preclusion Same issue was Issue was essential to the judgment (ie if decided on in the opposite way it would change the result of the case); Valid final judgment on the merits; Party against whom preclusion is asserted must have had a full and fair opportunity to litigate the issue in the first suit

actually litigated and determined;

What are the requirements of issue preclusion Same issue was actually litigated and determined; Issue was (ie if decided on in the opposite way it would change the result of the case); Valid final judgment on the merits; Party against whom preclusion is asserted must have had a full and fair opportunity to litigate the issue in the first suit

essential to the judgment

What are the requirements of issue preclusion Same issue was actually litigated and determined; Issue was essential to the judgment (ie if decided on in the opposite way it would change the result of the case); Valid on the merits; Party against whom preclusion is asserted must have had a full and fair opportunity to litigate the issue in the first suit

final judgment

What are the requirements of issue preclusion Same issue was actually litigated and determined; Issue was essential to the judgment (ie if decided on in the opposite way it would change the result of the case); Valid final judgment on the merits; Party against whom preclusion is asserted must have had a full and fair opportunity to the issue in the first suit

litigate

What factors determine whether claims are sufficiently related for the purposes of claim preclusion (res judicata) Whether facts are related in Whether they form a convenient trial unit; and Whether their treatment as a unit conforms to the parties’ expectations

time, space, origin, or motivation;

What factors determine whether claims are sufficiently related for the purposes of claim preclusion (res judicata) Whether facts are related in time, space, origin, or motivation; Whether they form a and Whether their treatment as a unit conforms to the parties’ expectations

convenient trial unit;

What factors determine whether claims are sufficiently related for the purposes of claim preclusion (res judicata) Whether facts are related in time, space, origin, or motivation; Whether they form a convenient trial unit; and Whether their treatment as a unit

conforms to the parties’ expectations

What factors do courts balance when deciding whether to allow non-mutual offensive collateral estoppel Did prior party have a full to litigate Are there multiple, prior inconsistent judgments Could the party trying to invoke collateral estoppel have participated in the prior action Are there any procedural opportunities available to D that were not available in the first suit

incentive & opportunity

What factors do courts balance when deciding whether to allow non-mutual offensive collateral estoppel Did prior party have a full incentive & opportunity to litigate Are there inconsistent judgments Could the party trying to invoke collateral estoppel have participated in the prior action Are there any procedural opportunities available to D that were not available in the first suit

multiple, prior

What factors do courts balance when deciding whether to allow non-mutual offensive collateral estoppel Did prior party have a full incentive & opportunity to litigate Are there multiple, prior inconsistent judgments Could the party trying to invoke have participated in the prior action Are there any procedural opportunities available to D that were not available in the first suit

collateral estoppel

What factors do courts balance when deciding whether to allow non-mutual offensive collateral estoppel Did prior party have a full incentive & opportunity to litigate Are there multiple, prior inconsistent judgments Could the party trying to invoke collateral estoppel have participated in the prior action Are there any available to D that were not available in the first suit

procedural opportunities

What is a valid final judgment on the merits Court had valid Judgment was final; and Judgment was made on the merits

SMJ, PJ, & venue;

What is a valid final judgment on the merits Court had valid SMJ, PJ, & venue; Judgment was and Judgment was made on the merits

final;

What is a valid final judgment on the merits Court had valid SMJ, PJ, & venue; Judgment was final; and Judgment was

made on the merits

What is the deadline to file a notice of appeal Within days of the final judgment or order being appealed (60 days if party is United States or federal agency). FRCP 4(a).

30

What is the deadline to file a notice of appeal Within 30 days of the final judgment or order being appealed ( days if party is United States or federal agency). FRCP 4(a).

60

What is the standard of review for discretionary rulings (evidence admissibility, etc) ⚠️ Note: Standard has many different formulations, but usually is rather deferential to the district court.

Abuse of discretion

What is the standard of review for jury verdicts

Against the weight of evidence

When a new D seeks to assert a final judgment decided in a prior suit against P.

non-mutual defensive collateral estoppel

When an individual who was not a party to the original action (a new party) becomes involved in a suit. Either: The new party requests that a final judgment against a previous party be enforced; or The previous party attempts to prevent the new party from litigating an issue that the previous party already lost to another, previous party.

non-mutual issue preclusion (“collateral estoppel”)

When are class certifications appealable Within following the district court’s decision to grant or deny certification. ⚠️ Note: Court of appeals has discretion whether or not to grant the appeal. FRCP 23(f)

14 days

When can a party refile a claim that was involuntarily dismissed

In state court not federal

When does an appellate court use the plain error standard When an error was not preserved (i.e. objected to) by the appealing party, but is so that the appellate court must address it.

patently obvious and substantial

When is a finding of fact clearly erroneous When, in light of all the evidence in the record, the appeals court has a

“definite and firm conviction that a mistake has been committed.”

When is a writ of mandamus granted Granted if: Petitioner has a No alternative route to desired relief exists; and Writ is proper under the circumstances ⚠️ Note: this is an “extraordinary” measure that is extremely rare.

clear and indisputable right to relief;

When is a writ of mandamus granted Granted if: Petitioner has a clear and indisputable right to relief; No and Writ is proper under the circumstances ⚠️ Note: this is an “extraordinary” measure that is extremely rare.

alternative route to desired relief exists;

When is a writ of mandamus granted Granted if: Petitioner has a clear and indisputable right to relief; No alternative route to desired relief exists; and Writ is ⚠️ Note: this is an “extraordinary” measure that is extremely rare.

proper under the circumstances

When is non-mutual defensive collateral estoppel allowed:

if P had full chance to litigate issue previously