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MBE TOPICS > Civ Pro > Flashcards

Civ Pro Flashcards

1
Q

Types of Subject Matter Jurisdiction

A

Diversity, FQ, (or supplemental)

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2
Q

Diversity Jurisdiction

A

(type of SMJ)
The P and D must reside in different states and the case must be in excess of $75k

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3
Q

Federal Question Jurisdiction

A

(type of SMJ)
The Ps complaint must be based on a federal question

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4
Q

Where is a corporation domiciled for purposes of Diversity Jurisdiction?

A

In all states in which it is incorporated and in the one state where it has its Principal Place of Business

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5
Q

The court will always get Personal Jurisdiction over the parties if:

A

1) The parties reside in that state;
2) A party is physically present in a state and served with a complaint;
3) A party consented to be sued there;
4) A party has sufficient minimum contacts w/ that jurisdiction

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6
Q

If you do not have sufficient minimum contacts it is a violation of

A

due process

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7
Q

Removal

A

when a case could have been filed in federal court from the beginning but was filed in state court, D may remove the case to federal court

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8
Q

Who can remove a case?

A

only the defendant

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9
Q

What happens if removal is improper?

A

The case is remanded

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10
Q

2 ways venue will always be proper:

A

1) Wherever the Defendant resides;
2) Where the substantial part of events took place

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11
Q

If the two ways to have proper venue are not available, where is venue proper?

A

Wherever the D is “reachable” (aka wherever the D has personal jurisdiction)

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12
Q

Direct Service

A

Serving a D directly with a complaint by a non-party who is over 18 y/o

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13
Q

You may indirectly serve a D at their “usual place of abode” (not necessarily their home all the time) so long as

A

it is to someone of a suitable age and they live there

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14
Q

You may indirectly serve a D by first-class mail so long as

A

there is a receipt acknowledging the complaint was received

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15
Q

You may indirectly serve a D corporation via

A

their designated agent or authorized agent

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16
Q

If a D Corporation does not have an authorized agent you may indirectly serve the complaint to

A

someone of sufficiently high placement (CEO, etc.)

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17
Q

You may indirectly serve someone by complying with

A

any state statute regarding service

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18
Q

Where can you NOT serve a Defendant if they are not there?

A

AT THEIR WORK!!! Cannot do this

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19
Q

Service of process is ok so long as it provides

A

adequate notice

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20
Q

If one party wants to apply one state law and another party wants to apply a different state’s law, which law will the court apply?

AKA: state law v. state law

A

the law of the state where the court sits (wherever the case was filed)

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21
Q

If one party wants to apply state law and another party wants to apply federal law, which law will the court apply?

AKA: state law v. federal law

A

State law UNLESS its a procedural issue then federal law applies

exception: if state law and federal law conflict, then federal law will apply (bc supremacy clause)

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22
Q

A party has sufficient minimum contacts in a forum state if they:

A

purposely availed themselves to the laws of the state and future litigation was foreseeable

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23
Q

General PJ exists if:

A
  • D is at home in the forum state; or
  • D was served process in the forum state
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24
Q

Who may serve process?

A

any one at least 18 years old and who is not a party

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25
Q

When must process be served?

A

within 90 days of filing the complaint

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26
Q

May process be waived?

A

Yes. D can waive process and this does not waive any defenses if they do so

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27
Q

May claims be aggregated to meet the amount in controversy requirement of diversity jurisdiction?

A

yes so long as it is ONE SINGLE PLAINTIFF aggregating all their claims against ONE SINGLE DEFENDANT (does not matter that the claims are not related)

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28
Q

When can removal of a case be done?

A

No later than 30 days after service

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29
Q

If removal is based solely on diversity jurisdiction, the case should not be removed if:

A
  • ANY Defendant is a citizen of the forum state
    AND
  • It has been more than 1 year since the case was filed in state court
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30
Q

if a P is moving to remand a case for any reason other than SMJ, how much time do they have?

A

30 days.

NOTE: no time limit to remove a case because of lack of SMJ

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31
Q

supplemental jurisdiction

A

when a case is already in federal court, but we want to bring an additional claim that the federal court does not have SMJ over

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32
Q

when can an additional claim be brought in under supplemental jurisdiction

A

if the additional claim has a common nucleus of operative fact with the original claim

NOTE: same T/O = always meets common nucleus test

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33
Q

limitation on supplemental jurisdiction

A

in diversity cases, Plaintiffs cannot invoke supplemental jurisdiction

34
Q

must a court invoke supplemental jurisdiction?

A

no, they have discretion to do so but do not have to

35
Q

substantive issues that will always require applying state law:

A
  • conflict or choice of law rules
  • elements of a claim or defense
  • SOL
  • rules for tolling SOL
  • standard for new trial bc of jury’s damages being excessive or inadequate
36
Q

Transfer of venue is from…

A

one court in a judicial system to another court in the same judicial system

37
Q

If original venue is proper, the court may

A

transfer the case and the transferee court must apply the law of the transferor court (aka the court that originally had proper venue)

38
Q

If the original venue is improper the court may

A

transfer the case in the interest of justice OR dismiss the case

39
Q

If the case is a diversity case and is transferred because of improper venue, what law does the transferee court apply?

A

Transferee court applies its own choice of law rules!!! (Because the case is being transferred there since they have diversity, so it makes sense they apply their own law)

40
Q

complaint must contain

A

sufficient facts to support a plausible claim

41
Q

plausibility of a claim is determined by

A

the judge’s own experience and common sense

42
Q

deadline for a D to respond to a Ps complaint

A

no later than 21 days after being served

if D waived service, then 60 days after waiver form was mailed to them

43
Q

when can a motion for lack of SMJ may be raised?

A

at any time, even on appeal

44
Q

when can a motion for lack of PJ, improper venue, insufficient process may be raised?

A

this motion is WAIVED if not raised in Rule 12 Motion or Answer, whichever is first

45
Q

when can a motion for failure to state a claim or failure to join a party be raised?

A

at any time before or after trial

46
Q

compulsory counterclaims

A

arise from the same t/o as the Ps claim and are waived if not asserted

47
Q

permissive counterclaims

A

do not arise from the same t/o as Ps claim and are not waived if not asserted

48
Q

a cross-claim is

A

a claim against a co-party

49
Q

impleader claims are

A

3rd party claims when D wants to shift their liability to P to someone else

note: If D is claiming they are not liable at all, the third party defendant is, then this an improper impleader claim and is not allowed

50
Q

Main difference between type 1, 2, and 3 class action

A

type 3 class action requires NOTICE to class members that they are in the class!!!

type 1 and 2 require no notice to members of the class and they do not have an option to opt out, but type 3 members do have the option to opt out

51
Q

intial required disclosures

A

within 14 days of rule 26(f) conference, each party must:
- disclose people, docs, and things you may use to support your claim
- insurance coverage
- computation of relief sought with supporting documents

52
Q

depositions

A
  • can be to parties and non-parties
  • non-parties: need a subpoena to be deposed
  • subpoena duces tecum can be used to request certain docs be brought to the depo
53
Q

interrogatories

A

can only be to parties and cannot have more than 25 rogs, including subparts, and you must respond within 30 days of service

54
Q

request to produce

A

can only be to parties and you must respond within 30 days of service

55
Q

requests for admissions

A

can only be to parties and you must respond within 30 days of service

if you fail to deny something, it is deemed to be admitted

56
Q

work product protection

A

anything prepared in anticipation of litigation is protected

57
Q

qualified work product

A

may be discovered if the requesting party can show undue hardship and substantial need

(things like drafts and reports of qualified experts)

58
Q

opinion work product

A

can never be discovered it is absolutely protected (mental impressions, conclusions, opinions)

59
Q

preliminary injunctive relief

A

maintains the status quo until trial

60
Q

TRO

A

maintains the status quo until a hearing for a preliminary injunction can be held
- last 14 days
- cannot exceed 28 days, if it does, its deemed to be a preliminary injunction

61
Q

entry of default can be entered by the court clerk if:

A
  • D has not appeared AT ALL
  • it is a claim for a sum of money
  • P gives an affidavit of the sum of money owed
  • D is not a minor or incompetent

*** if one of these is not true: the P must apply to the court for default judgment to be entered by the judge

62
Q

standard used for MSJ

A

there must be no general dispute of material facts and the movant must be entitled to judgment as a matter of law

63
Q

when must motion for summary judgment be brought

A

no later than 30 days after the close of discovery

can move as early as after the other side has been heard

64
Q

if a case includes both law and equity questions

A

jury will decide questions of fact first

then judge will decide remaining legal questions of equity

65
Q

demand for trial by jury must be done when?

A

no later than 14 days after service of the last pleading addressing a jury triable issue

66
Q

impeaching a verdict for jury misconduct will only occur when

A

the verdict was affected by EXTERNAL matters

we cannot use the mental process of jurors to impeach a verdict

67
Q

when can a party move for a motion for judgment as a matter of law (JMOL)?

A

after the other side has been heard

68
Q

when can a party move for renewed motion for judgment as a matter of law (RJMOL)?

A

within 28 days of entry of the judgment and ONLY IF the party previously moved for JMOL at the proper time

69
Q

remittitur

A

offers the P the choice to accept less damages than awarded instead of going through a whole new trial

(applies in state and federal courts)

70
Q

additur

A

offers the D the choice to add to the damages instead of going through a whole new trial

(not allowed in federal courts)

71
Q

final judgment rule

A

losing party can only appeal a final judgment

72
Q

interlocutory appeals

A

if the district courts order is not a FJ, it might be appealed using one of the following doctrines:
- interlocutory appeal as a matter of right - (orders that grant, deny, or modify an injunction) — (NOTE: if TRO exceeds 28 days its a preliminary injunction and can be appealed under this doctrine)
- Interlocutory appeals act
- collateral order doctrine
- multiple parties and claims
- class action - (order granting/denying class action certification is immediately appealable as of right but if denied, must happen within 14 days of being denied)
- extraordinary writ of mandamus/prohibition - (AC can compel DC court to vacate an order if its clear DC is violating a clear legal duty)

73
Q

appellate review standard for questions of law

A

DE NOVO (no discretion to DC judge)

74
Q

appellate review standard for questions of fact in a bench trial

A

clearly erroneous

75
Q

appellate review standard for questions of fact in a jury trial

A

no reasonable person could have made the jury’s finding

76
Q

appellate review standard for discretionary matters

A

abuse of discretion

77
Q

claim preclusion

A

claim is precluded from being asserted in the 2nd case if:
- the same claimant is suing the same defendant
and
- there was a valid final judgment on the merits of case 1

78
Q

issue preclusion

A

issue will be precluded from being raised in the 2nd case if: PIANO
P- party in a prior lawsuit (the party you are using it against was a party in case 1 or in privity with a party in case 1)
I- identical issue
A- actually litigated and determined
N- necessary for the judgment
O- opportunity to litigate

79
Q

non-mututal defensive issue preclusion

A

person asserting issue preclusion was not a party to case 1 and is now the defendant

this is allowed

80
Q

non-mutual offensive issue preclusion

A

person asserting issue preclusion was not a party to case 1 and is now the plaintiff

NOT ALLOWED!!! P cannot assert issue preclusion

81
Q

Grounds to support a motion for a new trial

A
  1. jury misconduct
  2. insufficiency of the evidence

MBE TOPICS (8 decks)

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