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Rocking the Bar Exam > Civ Pro > Flashcards

Civ Pro Flashcards

1
Q

jurisdiction / intro

what are the types of jurisdiction?

A
  1. SMJ - power of ct to decide this type of case
  2. PJ - power of ct to decide the rights and liabilities of this D
  3. Venue - which districts have proper venue (among cts with SMJ + PJ)
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2
Q

SMJ

what is the issue in SMJ?

A

does this court have the power to decide this kind of case?

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3
Q

SMJ

what is the SMJ of federal courts?

A

limited SMJ
can only hear certain claims

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4
Q

SMJ

what is the SMJ of state courts?

A

courts of general + unlimited SMJ

for MBE, assume state cts have SMJ over any kind of case unless info to contrary

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5
Q

SMJ

how do you plead federal SMJ?

A

must be affirmatively pleaded in every case

if challenged, must prove there is a basis for SMJ

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6
Q

SMJ

who can raise lack of SMJ?

A

any party at any time

including during appeal and the court itself

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7
Q

SMJ

can the parties waive SMJ?

A

nope, can’t be waived by failing to object or by affirmative consent

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8
Q

SMJ

what are the two types of SMJ?

A
  1. federal question jurisdiction
  2. diversity jurisdiction
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9
Q

SMJ / Federal Question

what is the basis for Federal Question Jurisdiction?

A
  • exists for a claim that arises under federal law
  • P’s claim must be based on federal law
  • look at the P’s claims in their well-pleaded complaint when determining
  • only P’s original claims, not anticipated responses to a defense
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10
Q

SMJ / Diversity Jurisdiction

what is required for diversity jurisdiction?

A
  1. cases b/t citizens of different states OR state + foreign country
    AND
  2. amount in controversy > $75k (not equal to), elusive of interest and costs
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11
Q

SMJ / Diversity Jurisdiction

what type of actions must always be brought in state court not federal?

A
  • probate
  • domestic relations
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12
Q

SMJ / Diversity Jurisdiction

what is the relevant timing for determining diversity jurisdiction?

A

must exist when the complaint is filed

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13
Q

SMJ / Diversity Jurisdiction / citizenship

what is the general rule for Complete Diversity?

A
  • complete diversity is required
  • every citizenship represented on P’s side must be different from every citizenship represented on D’s side
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14
Q

SMJ / Diversity Jurisdiction / citizenship

what is Minimal Diversity (exception to Complete Diversity Requirement)?

A

exists when any P is diverse from any D, even if other P and D overlap

allowed in these situations

  • Federal Interpleader Act
  • Class actions with at least 100 class members and claims over $5mm (Class Action Fairness Act)
  • interstate mass torts if 75+ natural persons died in one account

if one of these situations doesn’t apply, then Complete Diversity is required

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15
Q

SMJ / Diversity Jurisdiction / citizenship

how do you determine citizenship for individuals?

A

citizen of the state or country of domicile

domicile = permanent residence (reside + intent to remain indefinitely)
only one legal domicile

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16
Q

SMJ / Diversity Jurisdiction / citizenship

how do you determine citizenship for representative parties?

A

citizenship of representative party controls

exception: decedent’s estate - citizenship of decedent applies

exception: guardianship of minor / incompetent person - citizenship of minor / incompetent person applies

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17
Q

SMJ / Diversity Jurisdiction / citizenship

how do you determine citizenship for class actions?

A

citizenship of named or representative parties counts

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18
Q

SMJ / Diversity Jurisdiction / citizenship

how do you determine citizenship for a corporation?

A
  • can have several citizenships
  • state(s) or foreign country where incorporated
  • state / country of nerve center (principal place of business, C-Suite)
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19
Q

SMJ / Diversity Jurisdiction / citizenship

how do you determine citizenship for a partnership or unincorporated association?

partnership, limited partnership, trade associations, unions

A

citizen of every state of which its members are citizens

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20
Q

SMJ / Diversity Jurisdiction / citizenship

are actions that create or destroy diversity permitted?

A

permitted as long as they are not shams or fraudulent

like moving or assigning a claim

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21
Q

SMJ / Diversity Jurisdiction / amount in controversy

what is the basic requirement / rule for amount in controversy?

A
  • must exceed $75k exclusive of interest and costs
  • only relevant in diversity cases
  • any good faith allegation will suffice
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22
Q

SMJ / Diversity Jurisdiction / amount in controversy

what does aggregation mean?

A

add up smaller claims to exceed the $75k threshold

also think about supplemental jurisdiction

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23
Q

SMJ / Diversity Jurisdiction / amount in controversy

can you aggregate claims if there is one P and one D?

A

yep, P can aggregate all of her claims regardless of whether the claims are related

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24
Q

SMJ / Diversity Jurisdiction / amount in controversy

can you aggregate claims if there is one P and multiple D?

A

P may not aggregate claims

claims against each D must meet $75k

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25
Q

SMJ / Diversity Jurisdiction / amount in controversy

can you aggregate claims if there are multiple P and one D?

A

P may not aggregate claims

each P must seek $75k+ from D

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26
Q

SMJ / Removal Jurisdiction

what is removal?

A

moves case from state court to federal court

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27
Q

SMJ / Removal Jurisdiction

what is transfer?

A

moves case from one federal court to another federal court

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28
Q

SMJ / Removal Jurisdiction

can a case be moved from federal court to state court?

A

not a thing

fed ct can abstain from hearing it

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29
Q

SMJ / Removal Jurisdiction

what is the general rule for removal?

A

removal is proper ONLY if the case originally could have been brought in federal court

if the P chose to sue in federal court in the first place, would the fed ct had SMJ?

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30
Q

SMJ / Removal Jurisdiction

who can remove?

A

only the defendant

ALL D must consent w/in 30 days of service

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31
Q

tip

“was the motion to remove properly granted” –> what is this type of question getting at

A

SMJ + removal

v sneaky

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32
Q

SMJ / Removal Jurisdiction / Federal Question

what is the rule for removal of federal question cases?

A

depends on whether the federal question appears on the face of the well-pleaded complaint

if P’s claim is based on federal law, D MAY remove

if P’s claim is based on state law, D may NOT remove to federal court even if D raised a federal defense

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33
Q

SMJ / Removal Jurisdiction / Diversity Cases

when is removal based on diversity jurisdiction allowed?

A

only if
1. complete diversity
2. amount in controversy
AND
3. action is brought in a state of which no defendant is a citizen

must remove within one year of the commencement of action in state court UNLESS P acted in bad faith

if in D’s home state court, D can’t remove

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34
Q

SMJ / Removal Jurisdiction

if a removal notice is filed, when does the state court’s jurisdiction end?

A

automatically and immediately

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35
Q

SMJ / Removal Jurisdiction

what happens if P thinks removal is improper? which court decides?

A

P can file petition for remand in federal court
federal court holds a hearing

if removal is proper –> remand denied, stays in fed ct
if removal is improper –> remand granted, goes back to state court

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36
Q

SMJ / Supplemental Jurisdiction

what is the basic rule for supplemental jurisdiction?

A

allows a federal court with SMJ over a case to hear additional claims over which the ct would not independently have jurisdiction if ALL the claims constitute the same case or controversy

same case or controversy if arise out of same common nucleus of operative fact, same transaction or occurrence

not required to expand its jurisdiction

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37
Q

SMJ / Supplemental Jurisdiction

what should I think of with supplemental jurisdiction?

A

additional claims

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38
Q

SMJ / Supplemental Jurisdiction in Federal Question

how does supplemental jurisdiction apply to federal question cases?

A

focus on the anchor claim (the federal question claim not the state law claim)

if both claims are out of the same common nucleus of operative fact, fed ct may exercise supp jurisdiction over state law claim

doesn’t matter whether those claims involve joinder

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39
Q

SMJ / Supplemental Jurisdiction in Diversity Jurisdiction

what is the basic rule for supplemental jurisdiction in diversity jurisdiction cases?

A

state law claims must still be part of the same case or controversy / common nucleus of operative fact

CAN’T exercise supp juris over

  • claims by P against persons made a party under Rules 14, 19, 20, 24 (if only one D, then it’s okay)
  • claims by parties seeking to intervene as P under Rule 24
  • claims by parties proposed to be joined a P under Rule 19

these claims need to independently satisfy the div juris requirements

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40
Q

what are the two types of counterclaims?

A
  • compulsory - same transaction or occurrence as the opposing party’s claim
  • permissive - does NOT arise out of same transaction or occurrence
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41
Q

SMJ / Supplemental Jurisdiction in Diversity Jurisdiction

can supplemental jurisdiction apply to compulsory counterclaims?

A

if counterclaim is compulsory + brought by D, doesn’t have to meet $75k

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42
Q

SMJ / Supplemental Jurisdiction in Diversity Jurisdiction

can supplemental jurisdiction apply to permissive counterclaims?

A

can only be heard by federal div court IF it independently satisfies diversity jurisdiction

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43
Q

what is a cross-claim?

A

claim by a co-party
same side of the v.

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44
Q

SMJ / Supplemental Jurisdiction in Diversity Jurisdiction

what is required for a cross claim to qualify for supplemental jurisdiction?

A
  1. Relatedness Requirement - arise out of the transaction or occurrence that is subject matter of action or counterclaim
  2. must be related to a claim over which the court has SMJ (anchor claim)
  3. must NOT be asserted by P against a person made a party under Rules 14, 19, 20, 24

1. does counterclaim arise out of the same t/o as anchor claim? 2. is cross claim brought by P against person who is trying to join?

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45
Q

SMJ / Supplemental Jurisdiction in Diversity Jurisdiction

does supplemental jurisdiction in diversity cases allow you to join a non-diverse D or non-diverse P?

A

nope, never

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46
Q

SMJ / Supplemental Jurisdiction in Diversity Jurisdiction

if multiple P + one D, can other P with related claims bring those claims against the D?

A

yes even if their claims don’t satisfy the diversity jurisdiction $75k

(assumes one diverse P satisfies jurisdictional amount)

single D wasn’t made a party though Rules 14, 19, 20, 24

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47
Q

personal jurisdiction

when is PJ an issue (like what type of court)?

A

federal and state court

rules are generally the same

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48
Q

personal jurisdiction

what is the default federal rule for PJ?

A

use the long arm statue of the state in which the federal court sits

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49
Q

tip

how do you answer a personal jurisdiction question?

A
  1. has the basis for exercising PJ over an out of state D been authorized by statute OR by rule of court?
  2. is the particular basis for exercising PJ permitted by the Due Process Clause?
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50
Q

what type of jurisdiction (PJ or SMJ) can you waive?

A

PJ

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51
Q

personal jurisdiction

how do you waive PJ?

A
  • General Appearance - D voluntarily litigating on the merits
  • D waives by substantial participation on the merits
  • Federal Rule: have to raise lack of PJ at first opportunity or it’s waived –> pre-answer MTD or answer (whichever is first)
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52
Q

personal jurisdiction

what are the types of personal jurisdiction?

A
  1. in personam - against the person
  2. in rem - against the thing
  3. quais in rem - kinda against the thing
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53
Q

personal jurisdiction / in personam

what are the constitutional requirements for In Personam Jurisdiction?

A

are there sufficient contacts b/t the D and forum state so that it would be consistent with traditional notions of fair play and substantial justice to sue the D here?

Due Process

minimum contacts –> whether there is Purposeful Availement by D

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54
Q

personal jurisdiction / in personam

what are the two types of In Personam Jurisdiction?

A
  1. general
  2. specific
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55
Q

personal jurisdiction / in personam / general

what is general in personam jurisdiction? basic rule

A

P can assert any claims against D, even if unrelated to D’s contacts with the forum state

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56
Q

personal jurisdiction / in personam

what type of in personam jurisdiction requires some connection to the forum state?

A

general allows any claim
specific requires a connection to forum state

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57
Q

personal jurisdiction / in personam / general

what are the bases for general in personam jurisdiction?

A
  1. physical presence within the state
  2. domicile
  3. consent
  4. corporations
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58
Q

personal jurisdiction / in personam / general

how do you establish general in personam jurisdiction for physical presence?

A

service of process on D while they are physically present in the state –> knowingly and voluntarily in the state

EXCEPTIONS
only in the state because of summons
force
fraud

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59
Q

personal jurisdiction / in personam / general

how do you establish general in personam jurisdiction through consent?

A
  1. expressly
  2. implicitly (by not raising the issue)
  3. appointment of an agent for receiving process
  4. contract
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60
Q

personal jurisdiction / in personam / general

how do you establish general in personam jurisdiction for corporations?

A
  • merely doing business in a state is insufficient
  • only applies to corporations that are “at home” in the forum state (where it’s incorporated + principal place of business)
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61
Q

personal jurisdiction / in personam / specific

what is the general rule for specific in personam jurisdiction?

A

P’s claim must arise out of D’s forum contacts OR be directly related to those contacts

D must have sufficient minimum contacts with forum such that exercise of juris is fair

state long arm statutes authorize specific jurisdiction based on some minor contacts

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62
Q

personal jurisdiction / in personam / specific

what are the bases for specific in personam jurisdiction?

A

state long arm statutes give courts in personam juris over out of state D ONLY for particular transactions involving that state

can be super broad - as far as Due Process Clause permits

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63
Q

personal jurisdiction / in personam / specific

in general, which long arm statute do federal courts follow?

A

long arm statute of the states in which the federal court sits

EXCEPTION: federal rules that extend in personam juris of fed cts beyond state boundaries

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64
Q

personal jurisdiction / in personam / specific

what are the exceptions for when a federal rule gives federal courts in personam juris beyond state boundaries?

A
  1. Federal Interpleader Act - nationwide service of process
  2. Bulge Provision of Federal Rules - allows service anywhere within 100 miles of federal court for (1) impleading 3p D under Rule 14 + (2) joining necessary parties under Rule 19
  3. Unusual Provision Rule 4k2 - if D is not subj to PJ in any state + suing under federal law –> federal ct can exercise jurisdiction as long as D has minimum contacts with US as a whole
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65
Q

personal jurisdiction / in rem

what is in rem jurisdiction (basic rule)?

A

suit can be brought against a piece of property if (1) property is in the state where you are suing and (2) suit will settle all rights and everyone’s claims to the property

any property - real or personal

form of specific jurisdiction

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66
Q

personal jurisdiction / quasi in rem

what is quasi in rem jurisdiction (general rule)?

A

suit to adjudicate the claim to property of a particular D(s)

subject matter may/may not be related to the property as long as minimum contacts exist

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67
Q

personal jurisdiction / quasi in rem

what is the historical rule for quasi in rem jurisdiction?

A

could use quasi in rem to get D’s assets even if completely unrelated

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68
Q

personal jurisdiction / quasi in rem

what is the current rule for quasi in rem jurisdiction?

A

same minimum contacts test applies as with in personam jurisdiction

if property is subject of the suit, probs enough to have min contacts b/t D and forum, so juris is likely permitted

if property is NOT subject of the suit, ownership of property in the state isn’t enough to establish general juris over D

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69
Q

service of process

what is generally required for service of process?

A
  1. service of a summons
  2. service of copy of compliant

gives ct jurisdiction
gives D notice

served to someone 18+ AND not a party (MBE Primer #2)

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70
Q

service of process

what is the default rule for service of process in federal courts?

A

okay as long as it follows the law of the state in which the federal court is based

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71
Q

service of process

what are the Federal Rules of service that are always allowed? regardless of state rules

A
  • in hand personal delivery
  • leaving summons at D’s house with person of suitable age and discretion
  • delivery of summons to authorized agent
  • by mail requiring a signed receipt (for ppl in foreign countries)
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72
Q

service of process

how do you serve for in rem + quasi in rem actions?

A

must make a diligent effort to locate all claimants and serve them personally

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73
Q

service of process

when is notice by publication allowed?

like posting in a newspaper

A

only if claimants can’t be located after diligent effort

can’t do this if you’re being lazy and you can easily find the names and addresses of the claimants

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74
Q

service of process

why would a D waive service of the summons?

A

they get longer to answer (60 days to respond vs. 21 days)

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75
Q

service of process

what is the normal time frame for the D to respond to service of the summons?

A

30 days or 60 if D is outside U.S.

P can notify D that an action has been commenced only by first class mail

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76
Q

what is an injunction?

A

form of relief that requires a D to do something (mandatory injunction)
OR prohibits a D from doing something (prohibitory injunction)

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77
Q

injunctions

when can a court issue a permanent injunction?

A

after it has fully heard a case

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78
Q

injunctions

when can a court issue a preliminary injunction? what is required?

A

prior to a full hearing on the merits

  1. notice to D AND
  2. hearing on whether the injunction should be granted
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79
Q

injunctions

when can a court issue a temporary restraining order? what is required? how long do they last?

A

preserves status quo until court can make a decision on the preliminary injunction

can’t last more than 14 days unless (1) other party agrees or (2) ct finds good cause for extension

moving party has to establish under oath
1. immediate and irreparable injury if there is a delay
2. moving party’s atty has to certify any efforts that have been made to give notice and why notice is not required

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80
Q

injunctions

if a temporary restraining order is issued without notice, what can the other party do?

A

make a motion to dissolve the TRO

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81
Q

injunctions

when can a temporary restraining order be appealed?

A

not appealable generally

UNLESS they have the effect of a preliminary injunction

preliminary injuction can be appealed immediately

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82
Q

venue

what is venue?

A

among the courts in this judicial system, which one is most appropriate to hear a case?

federal system: whether this district is a proper court to hear this action

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83
Q

venue

whose responsibility is it to object is venue is improper?

A

defendant

failure to make a timely objection results in waiver

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84
Q

venue

when does venue have to be raised in federal cases?

A

must be raised at first opportunity or it’s waived

first oppy = pre-answer MTD or D’s answer (if no pre-answer MTD)

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85
Q

venue / federal rule

when is federal venue proper in a district? (what is the test)

A
  1. where any D resides (as long as ALL D reside in the same state) OR
  2. where the claim arose
  3. if neither 1 or 2, any district where D is subject to PJ has venue
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86
Q

venue / federal rule

is the focus on the D or P?

A

D

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87
Q

venue / federal rule

how do you determine the residence?

A
  • individuals: domicile
  • business entities: every district in which PJ exists
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88
Q

venue / federal rule

if a case begins in state court and is removed to federal court, what happens with venue?

A

venue is automatically proper in federal district where state court sits

even if it would not have been proper originally

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89
Q

venue / federal rule / transfer

what is the general rule for transfer?

A

transfer is only allowed to a district with proper venue

UNLESS all parties agree to transfer to a district w/o proper venue

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90
Q

venue / federal rule / transfer

if a case is brought with proper venue, what can happen?

A

may be transferred with convenience to another district with proper venue

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91
Q

venue / federal rule / transfer

if a case is brought without proper venue, what can happen?

A
  1. dismissed OR
  2. transferred to district with proper venue
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92
Q

conflict of law (which state’s law applies)

if a suit was brought in a district w/ proper venue and it’s transferred to another district, which law applies?

A

law of the transferor forum controls (the original court)

take your law with you

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93
Q

conflict of law (which state’s law applies)

if a suit was brought in a district w/o proper venue and it’s transferred to another district, which law applies?

A

law of the transferee court controls (the second court)

trying to prevent an advantage to filing in the wrong court

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94
Q

choice of law (Erie)

in a diversity case, what law does a federal court apply?

A

state substantive law

BUT if it is unclear whether an issue is substantive or procedural, then must determine if federal law addresses the issue

additional info from PQs Set 3

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95
Q

choice of law (Erie)

what is state substantive law?

A
  • substantive rules that govern conduct - what must be proved to win a case and what defenses may be asserted
  • state states of limitations on state causes of action
  • burdens of proof on state claims or defenses
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96
Q

choice of law (Erie)

what is federal procedural law?

A

anything covered by FRCP is procedural
federal law applies even if substance of claim is governed by state law
Hanna v. Plumer

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97
Q

choice of law (Erie)

if there is no federal statute or rule on point, how does a court determine whether to apply state law or federal law?

A

whether to follow state law (matter is substantive) OR follow federal law (procedural)

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98
Q

choice of law (Erie)

What are the twin aims of Erie?

A
  1. avoid forum shopping
  2. avoid inequitable administration of justice
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99
Q

choice of law (Erie)

what law controls the role of the jury in federal court?

A

federal law

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100
Q

choice of law (Erie)

if the choice of law of the procedure would be outcome determinative, what law should the federal court apply?

A

state law to prevent forum shopping

101
Q

choice of law (Erie)

what is federal common law?

A
  • judge-made federal law that overrides any inconsistent state or local law or rule
  • federal courts federal common law only when they encounter important federal interests that are not covered by statute
102
Q

choice of law (Erie)

how do you determine the applicable state law?

A
  • follow precedent from highest state court
  • if no precedent, predict how the highest state court would rule
  • give respectful attention (not binding) to decisions of lower state courts
103
Q

pleadings

what law controls when a diversity jurisdiction action begins?

A

state law

104
Q

pleadings

what are the three types of pleadings?

A
  1. complaint
  2. answer
  3. reply
105
Q

pleadings

what is the purpose of a complaint?

A

state a claim for relief

106
Q

pleadings

what is the purpose of a reply?

A

P to answer a counterclaim

107
Q

pleadings

what is required for a complaint (or any pleading in which a claim is made)?

A
  1. short and plain statement of court’s SMJ
  2. short and plain statement showing claimant is entitled to relief
  3. claim for relief sought by pleader (relief isn’t limited to what is listed)
108
Q

pleadings

under FRCP, what is required in a Notice Pleading?

A

needs to give fair notice of the pleader’s claim

109
Q

pleadings

what type of claims require special pleadings? what does it mean for something to be a special pleading?

A

must be alleged particularity, specificity, detail

  • fraud or mistake
  • claims for special damages
110
Q

pleadings

what is the inquiry for analyzing pleadings?

A
  1. identify allegations that are “conclusory” or “mere legal conclusions”
  2. look at remaining factual allegations and ask whether they add up to a “plausible” case for recovery

probable > “plausible” > possible

Twombly and Iqbal

111
Q

tip

what should I think of if I see unconvincing or implausible allegations with no factual support?

A

think of Twiqbal
if complaints are obvi unfounded, dismiss it

112
Q

defense motions

when can you raise a motion to dismiss?

A
  • lack of SMJ
  • lack of PJ
  • improper venue
  • failure to state a claim upon which relief can be granted
  • failure to join a necessary party
  • forum non conveniens

FRCP 12b6

113
Q

defense motions

when do you have to raise lack of PJ or improper venue?

A

at the earliest oppy (pre-answer MTD or the answer)

114
Q

defense motions

what type of claim can you NOT waive?

A

SMJ

can be raised by any party at any time

115
Q

defense motions

what is a Motion for Judgment on the Pleadings?

A

applies when teh pleadings agree on teh facts and only the law is in dispute

116
Q

defense motions

what are the general categories of motions?

A
  • Motion to Dimiss
  • Motion for Judgment on the Pleadings
  • Motion for a More Definite Statement
  • Motion to Strike (delete prejudicial or scandalous matters that aren’t relevant)
117
Q

defense motions / Answer

what may an Answer contain?

A

responses
defenses
counterclaims

118
Q

defense motions / Answer

what happens if you fail to respond to something in your Answer?

A

failure to respond is an admission
that admission is binding

pro tip: include boilerplate denial of everything

119
Q

defense motions / Answer

what are some common affirmative defenses?

A
  • assumption of risk
  • contributory negligence
  • fraud
  • duress
  • release
  • SOF
  • statutes of limitations
120
Q

defense motions / Answer

what is the timing for an Answer?

A

generally 21 days

but nuances

121
Q

pleadings / amendments

what are the two types of amendments?

A
  1. as of right
  2. by leave of court
122
Q

pleadings / amendments

what is the rule for amendments As Of Right? (like when can you make this type of amendment)

A

may be amendment at any time w/in 21 days of service

123
Q

pleadings / amendments

what is the rule for amendments By Leave of Court? (when can you make this type of amendment?

A

after party has amended once, must ask court to amend again

should be freely granted

124
Q

pleadings / amendments

what is the Doctrine of Relation Back?

A
  • amendment is deemed to relate back to the date of the OG pleading (rather than the date of the amendment)
  • applies when statue of limitations has run out
  • an amendment relates back to the date of the OG filing IF it concerns the same transaction, occurence, or conduct as OG pleading
125
Q

tip

if I see a limitations period, date of OG pleading, and date of amendment, what should I think of?

A

Doctrine of Relation Back

126
Q

pleadings / amendments

what is the rule to make an amendment to add or change a party?

A
  1. must concern same conduct, transaction, or occurrence as OG pleading AND
  2. new party must have known or had reason to know that the action should have been brought against it but for a mistake
127
Q

pleadings

what is verification?

A

sworn to

128
Q

pleadings

what is certification?

A

signed by attorney of record + provide attorney’s contact info

attorney certifies it is a reasonable inquiry

appropriate factual and legal basis for filing

129
Q

pleadings

do pleadings have to be verified and certified?

A
  • verification not required
  • must be certified
130
Q

pleadings

if a violation of the certification requirement is raised (by court or other party), who can bear the costs?

A

attorney can be ordered to bear the costs of improper filings

131
Q

parties

what is the rule for permissible joinder?

A

P or D can join IF
1. claims are out of the same t/o (or series) AND
2. common question of law or fact

FRCP 20

132
Q

parties

what is the rule for permissive joinder with jurisdiction?

A
  • all joinder rules assume there is SMJ
  • diversity jurisdiction: no party can join whose presence would destroy complete diversity
133
Q

parties

what is the analysis for compulsory joinder of parties?

A

focus is on what D can compel P to do

  1. Is bringing in this party necessary for a just adjudication? if yes, they’re necessary
    risk of inconsistent liability, prejudice to existing parties, complete relief can’t be granted without them
  2. Is it feasible to add the new party?
    feasible if (a) won’t deprive the court of SMJ and (b) court can exercise PJ over necessary party
  3. If not, court decides to proceed without the necessary party OR dismiss the whole suit b/c they’re indispensable

FRCP 19

134
Q

parties

what is intervention?

A
  • party volunteers to enter a lawsuit (generally P)
  • (1) intervention as of right
  • (2) permissive intervention
  • must be reasonable promptness

FRCP 24

135
Q

parties

what is an interpleader?

A

used to resolve the problem of competing claims to same property (real, personal, tangible, intangible)

136
Q

parties

what is Rule Interpleader?

A

available remedy if lawsuit is otherwise within court’s jurisdiction

FRCP 22

137
Q

parties

what is Statutory Interpleader?

A
  • only applies in federal court
  • amount >= $500
  • SMJ based on minimal diversity
  • nationwide service of proper
  • venue is proper in any district where any claimant resides

Federal Interpleader Act

138
Q

parties / interpleader

what do you call the person holding the property?

A

stakeholder

139
Q

parties / interpleader

what do you call the people claiming the property?

A

claimants

140
Q

parties / interpleader

if the stakeholder claims a right to keep the party, what do you call them?

A

stakeholder claimant

141
Q

joining claims

if there is the same P and same D, what claims can you join?

A

all claims even if unrelated

142
Q

joining claims

if there is a diversity case, what claims can you join?

A

P can aggregate all claims against same D to exceed jurisdictional amount

143
Q

joining claims

in a federal question case, what claims can you join?

A

additional state-law claims ONLY IF they are covered by supplemental jurisdiction (so same t/o as original claim)

144
Q

counterclaims

what type of counterclaims are lost if not pleaded in the current action?

A

compulsory counterclaim if lost if not pleaded now
permissible counterclaims can be raised now or later

145
Q

counterclaims

what is a compulsory counterclaim?

A

arises out of the same t/o as claim to which it responds

Note: statute of limitations tolls for original claim and compulsory counterclaims

146
Q

counterclaims

is there SMJ for compulsory counterclaims?

A

supplemental jurisdiction is generally available

if SMJ over main claim, there’s SMJ over compulsory counterclaim

diversity case: if counterclaim is raised by D, okay
amount of the claim usually doesn’t matter

147
Q

counterclaims

what is a permissive counterclaim?

A

does NOT arise out of same t/o
may be pleaded now or later
has to be timely (statute of limitations)

requires an independent jurisdictional basis –> federal question or diversity juris requirements

148
Q

what is required for a cross claim?

A

must arise out of the same t/o as original claim or counterclaim

149
Q

what is impleader (3p practice)?

A

D brings someone into the suit who may/may not be liable to D for all or part of P’s claim against the D

impleaded party = D
original defendant = 3p P as against 3p D

150
Q

tip

if there’s an indemnification contract or contribution amount joint tortfeasors, what should I look out for?

A

impleaders

151
Q

impleader

what is required for SMJ for impleaders?

A

diversity cases: this is w/in court’s SMJ
citizenship of 3p D + amount of claim against 3p D don’t matter

supplemental jurisdiction doesn’t extend to claims by OG P against impleaded 3p D

152
Q

impleader

what is required for PJ for impleaders?

A

normal methods of PJ available

bulge provision

153
Q

what are the requirements for class action?

A
  1. numerioristy
  2. commonality among questions of law or fact
  3. typicality
  4. adequacy of representation
154
Q

what is the Class Action Fairness Act (2005)?

A

allows large class actions

  • at least 100 members
  • over $5mm at stake
  • only minimal diversity required
155
Q

discovery

what is required in initial disclosures?

A
  1. names and addresses of anyone with potentially discoverable info
  2. copies or descriptions of relevant documents or things
  3. computation of damages claimed
  4. applicable insurance agreements
156
Q

discovery

what are the three stages of mandatory disclosures?

A
  1. initial disclosures
  2. disclosure of expert witnesses
  3. pretrail disclosures
157
Q

discovery

what do the parties disclose about expert witnesses?

A
  • names of experts to be called at trial
  • qualifications, publications, opinions, info on which they’ll base their opinions, and compensation
158
Q

discovery

what is required for pretrial disclosures?

A
  • 30 days before trail
  • list of witnesses and exhibits
  • any objections within 14 days of disclosure or waived (unless excused by ct for good cause)
159
Q

discovery

what is the general scope of discovery?

A
  • must be relevant
  • you can discover anything that might be admissible at trial OR might lead to something admissible at trial
  • not limited to admissible evidence
  • limited to matters that are proportional to the needs of the case
160
Q

discovery

what are the main exceptions to discovery? (not discoverable)

A
  1. evidentiary privilege (e.g., attorney-client privilege)
  2. work-product rule
161
Q

discovery / work-product rule

what is subject to the work-product rule?

A

(1) documents and things (NOT the underlying info)
(2) prepared in anticipation of litigation or trial
(3) by or for another party (or their representative)

creates a qualified immunity from discovery

162
Q

discovery / work-product rule

how does the party seeking discovery overcome the work-product rule?

A

need to show
1. a real need for the document or thing AND
2. info can’t be obtained elsewhere

163
Q

discovery / work-product rule

what can you ALWAYS get regardless of work-product rule?

A

your own statement (if you’re a party or witness)

164
Q

discovery / work-product rule

what can you NEVER get regardless of work-product rule?

A

mental impressions of the lawyer

165
Q

discovery

what is the main distinction with expert witnesses? what can you discover about each?

A

experts who will testify vs. those who won’t

  • other side can always discover report of testifying expert (compensation, facts, data, assumptions, etc. provided to expert by lawyer)
  • if not going to testify, no discovery absent exceptional circumstances
166
Q

discovery devices

what are the six discovery devices?

A
  1. oral deposition
  2. written deposition
  3. interrogatories
  4. discovery and inspection of docs and land
  5. physical and mental examination
  6. request for admission
167
Q

discovery devices

what is a subpoena?

A

deposition of a nonparty witness requires a subpoena (form of notice)

168
Q

discovery devices

what is subpoena duces tecum?

A

requires deponent to bring specific docs or things

169
Q

discovery devices

what is the rule for oral depositions?

A
  • questions asked and answered orally
  • under oath
  • any kind of notice is okay for party, subpoena required for nonparty witness
  • taken any time after party has made mandatory disclosures
  • notary public required
170
Q

discovery devices

what is a written deposition?

A

questions asked in writing and witness answers orally under oath

171
Q

discovery devices

what are interrogatories?

A

questions asked in writing and answered under oath in writing
can only be used against a party
may produce business records in response if burden of deriving the answers is substantially the same for both parties

172
Q

discovery devices

what is a discovery and inspection of docs and land?

A

request to produce and permit inspection
only applies to docs, things, and land under control of a party
must be described with particularity

173
Q

discovery devices

what is required for physical and mental examination?

A
  1. only available against a party
  2. only permitted when a party’s mental or physical condition is in controversy AND
  3. good cause shown
174
Q

discovery devices

what is a request for admission?

A

only to another party

failure to respond w/in 30 days is treated as admitted

binding in litigation but no preclusive effect

remember this needs to be signed by attorney on record, etc.

175
Q

tip

discoverability is NOT admissibility

A

these are separate issues

176
Q

discovery

when can a court immediately impose sanctions of complete default?

A
  1. failure to attend one’s own deposition
  2. failure to respond to interrogatories AND
  3. failure to respond to a request for docs or things

no way you can forget to do these things in good faith

otherwise, request an order to compel discovery

177
Q

what is required for a pre-trial conference?

A
  • must be attended by attorneys who will conduct the trial
  • must file a pretrial statement detailing claims and defenses, itemization of damages, requests for stipulations and admissions, list of all witnesses and exhibits, etc.
  • failure to comply usually means that they pay other side’s fees
178
Q

what are the categories of devices that allow termination without trial?

A
  • judgment on the pleadings
  • default judgment (D has not shown up)
  • voluntary dismissal (w/o prejudice)
  • involuntary dismissal (w/ prejudice)
  • summary judgment
179
Q

what does it mean for a suit to be dismissed without prejudice?

voluntary dismissal

A

party whose claim is dismissed can bring that claim again in a new lawsuit

180
Q

what situations can lead to an involuntary dismissal?

A

lack of jurisdiction
improper venue
failure to join an indispensable party

181
Q

what is the standard an appellate court applies for a suit that was involuntarily dismissed?

A

abuse of discretion

182
Q

what is the main difference between failure to state a claim upon which relief can be granted (12b6) vs. summary judgment?

A

failure to state a claim tests only the legal sufficiency of the P’s claim

summary judgment is about the law ACT facts

183
Q

what is the standard for summary judgment?

A

no genuine dispute as to any material fact and moving party is entitled to judgment as a matter of law

no genuine dispute –> no reasonable juror could find for the moving party

materials in the record must generally be sworn

184
Q

juries

when does the right to jury trial apply?

A

federal right to trial by jury (7th Amendment)

no right to jury trial for equity issues (injections, specific performance, admiralty issues)

185
Q

juries

if there are legal and equity issues, what order are the issues determined?

A

try the legal issues first

186
Q

juries

who can demand a jury trial?

A

either party in a pleading or separate motion

must be made no later than 14 days after service of last pleading directed at the issue

187
Q

juries

what is the judge required to do in a bench trial?

A

make findings of facts on the record and state conclusions of law

188
Q

juries

what is possible with jury instructions?

A
  • either party may request specific instructions
  • court must provide an oppy to object to proposed instructions
189
Q

juries

what is required for a jury verdict?

A

must be unanimous unless parties have stipulated otherwise
at least 6 jurors (no more than 12)

190
Q

what is a Motion for Judgment as a Matter of Law (JMOL)?

formerly Motion for Directed Verdict

A

viewing the evidence in the light most favorable to the opposing party, evidence can’t support a verdict for that party, and moving party is entitled to judgment as a matter of law

ct must find that there is insufficient evidence for a jury to reasonably find for nonmoving party

kinda like motion for summary judgment after trial started

FRCP 50

191
Q

can there be a Motion for Judgment as a Matter of Law if there’s an issue with the credibility of a witness?

A

If case turns on issue of witness credibility, JMOL is denied (b/c there’s an issue of material fact)

192
Q

what is the standard for a Renewed Motion for Judgment as a Matter of Law?

formerly JNOV

A

evidence can’t support the jury’s verdict and moving party is therefore entitled to judgment as a matter of law

prior motion is required

193
Q

When can a Motion for a New Trial be granted?

A

discretion of court

some reasons
* legal errors
* newly discovered evidence
* prejudicial misconduct by a lawyer, party, or juror
* judge concludes verdict is against great weight of the evidence w

194
Q

what is Remittitur?

A

reduction to reduce the verdict and grant. new trial on the condition that the remittitur is not accepted

Defendant’s request to reduce jury award of excessive damages

195
Q

what is Additur?

PQs Set 4

A

Plaintiff’s request to increase jury award of inadequate damages

NOT allowed in federal court

196
Q

what is the standard applied for a new trial with the appellate court?

A

if reason for new trial is question of law –> de novo

otherwise, abuse of discretion

197
Q

when is an appeal available?

A

only after final judgment –> resolves ALL claims of ALL parties

198
Q

is a partial final judgment appealable?

A

yes, immediately appealable

court enters a final judgment on some claims by expressly designating the order as final

199
Q

when does a judgment become final?

A

entered by the clerk on court’s docket

NOT when it’s announced

200
Q

what type of interlocutory orders are immediately appealable as of right?

A

any order granting or modifying an injunction

any order that changes or affects possession of property

remember TROs ordinarily aren’t appealable

201
Q

what is an discretionary interlocutory review?

A

any interlocutory order is appeal with leave of courts
BOTH trial and appellate courts must agree to allow the appeal

TC issues certificate for interlocutory appeal stating
1. issue involves a controlling question of law with substantial ground for difference of opinion AND
2. immediate appeal may materially advance termination of the litigation

202
Q

what is the standard of review for questions of law?

A

de novo

did trial court make an error? was that error prejudicial?

203
Q

what is the standard of review for findings of fact?

A

jury verdicts must be affirmed if supported by substantial evidence
unless clearly erroneous

204
Q

what is the standard of review for matters of discretion?

A

abuse of discretion

205
Q

preclusion

what are the two types of preclusion?

A
  1. claim preclusion (res judicata)
  2. issue preclusion (collateral estoppel)
206
Q

tip

how do I analyze preclusion?

A
  1. Is the claim in the second suit precluded by prior adjudication (claim preclusion)? if Y, stop.
  2. if not, are there any issues in the second suit precluded by prior adjudication (issue preclusion)?

make sure to ask these questions in order

207
Q

preclusion / claim preclusion (res judicata)

what is the rule for claim preclusion?

A

final judgment on the merits of a claim bars re-litigation of that claim by the same parties or their successors in interest
precludes re-litigation of every claim that was raised or should have been raised in the first suit

208
Q

preclusion / claim preclusion (res judicata)

what are the requirements?

A
  1. final judgment on the merits in the first suit (includes default judgment, summary judgment, dismissal w/ prejudice)
  2. second suit must be b/t same parties or their successors in interest (both parties)
    AND
  3. second suit must involve the same claim or cause of action
209
Q

preclusion / claim preclusion (res judicata)

what is a successor in interest?

A

stands in the shoes of the original party

  • assignor and assignee of a claim
  • decedent and executor of the estate
  • executor of an estate and people who claim under the will
210
Q

preclusion / claim preclusion (res judicata)

are class members bound in a class action?

A

each member is bound to the judgment

211
Q

preclusion / claim preclusion (res judicata)

what is required for the “same claim or cause of action” requirement?

A
  • all legal theories to recover harm arising out of a single t/o count
  • if both contract and tort claims seek redress for same harm, they are the same claim
  • claims that should have been bought in first case
212
Q

preclusion / claim preclusion (res judicata)

what is the rule for installment sales?

A

creditor must sue for all that is “due and owing” at the time of the suit

future debts or obligations are another claim

look out for acceleration clauses

213
Q

preclusion / issue preclusion (collateral estoppel)

what are the requirements for issue preclusion?

A
  1. same issue of fact in both suits (even if different claims)
  2. issue must have been actually and necessarily decided in first suit by a valid and binding judgment (only actually litigated claims)
    AND
  3. party to be precluded must have been a party in the first suit (party invoking preclusion doesn’t need to be involved in first suit)
214
Q

tip

SMJ, PJ, and venue are often tested together

A

look out

215
Q

tip

what should I think of if there’s a fact pattern with state law in a federal court case?

A

Erie

216
Q

service of process

does failure to prove service of process affect the validity of the service?

PQs Set 1

A

nope

217
Q

venue

what venue is proper for a non-US resident / foreign person?

PQs Set 1

A

any federal judicial district court

218
Q

what happens if the jurors are polled individually after a verdict?

PQs Set 1

A

if poll reveals verdict is not unanimous –> ct can direct jury to deliberate more or issue a new trial

if unanimous –> enter judgment consistent with verdict

party has to request the poll or court can order it

219
Q

what is the timeline for filing a Motion for Judgment as a Matter of Law?

PQs Set 1

A

motion can be renewed w/in 28 days after entry of judgment

220
Q

Erie / Choice of Law

what law should a federal court apply when a claim arises under diversity jurisdiction?

PQs Set 1

A

federal procedural law + state substantive law

221
Q

Erie / Choice of Law

what law should a federal court apply for a federal question case?

PQs Set 1

A

federal substantive + federal procedural law

222
Q

when can a federal court grant a preliminary injunction?

PQs Set 1

A
  1. the movant is likely to succeed on the merits
  2. the movant is likely to suffer irreparable harm in the absence of relief
  3. the balance of equities is in the movant’s favor
    AND
  4. the injunction is in the best interests of the public
223
Q

factors for imposing sanctions

Essay 3573

A

may be subject to sanctions for failing to take reasonable steps to preserve evidence that should have been preserved in the anticipation or conduct of litigation

Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery

court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence

224
Q

can a party request a deposition via subpoena before the initial planning conference?

PQs Set 2

A

no, have to wait for the conference

225
Q

how do you preserve a jury instruction error on appeal?

PQs Set 2

A

party needs to (1) timely object to the instructions (2) on the record and (3) state the grounds for the objection

226
Q

what is the rule for a district court to correct a clerical mistake or error on the order?

PQs Set 2

A

district court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record
on its own initiative (i.e., sua sponte) or pursuant to a party’s motion before an appeal from the judgment or order is docketed

after an appeal is docketed, the district court can correct the mistake only with the appellate court’s leave (i.e., permission).

227
Q

when can a party obtain extraordinary relief? (time + bases for this relief)

PQs Set 2

A

w/in one year of the entry of final judgment

  1. mistake, inadvertence, surprise, or excusable neglect
  2. newly discovered evidence
  3. opposing party’s fraud, misrepresentation, or misconduct
228
Q

choice of law

what are examples of procedural issues?

PQs Set 2

A
  • filing deadlines
  • court rules and procedures
  • discovery practices
  • rules of evidence
229
Q

choice of law

what are examples of substantive issues?

PQs Set 2

A
  • elements of claim or defense
  • burdens of proof
  • statutes of limitations
230
Q

what are examples of permissible sanctions?

PQs Set 3

A
  • dismiss action in whole or part
  • strike pleadings in whole or part
  • hold in contempt of court
  • issue default judgment
  • prohibit use of evidence
  • stay further proceedings (delay)
231
Q

what is the default type of involuntary dismissal?

PQs Set 3

A

case is dismissed with prejudice unless otherwise stated

232
Q

should a forum selection clause be followed?

Essay 2613

A
  • when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect
  • If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching.
  • SCOTUS held that a forum selection clause should be given “controlling weight in all but the most exceptional cases.”
233
Q

what is each party entitled to during jury selection (voir dire)?

PQs Set 3

A

each party gets (1) 3 peremptory challenges to strike jurors for any reason (except race, ethnicity, gender) w/o explanation
and
(2) unlimited number of challenges for cause to strike potential jurors for bias or lac of impartiality

234
Q

when can you file a judgment as a matter of law (JMOL)?

PQs Set 3

A

only after the nonmovant has the oppy to present their case to the jury

can be filed before case is submitted to the jury

235
Q

service of process

how can you properly serve an individual?

PQs Set 3

A
  • follow rules of state where court sits OR where service is made
  • personal service
  • deliver to dwelling and left with resident of suitable age and discretion

FRCP 4

236
Q

does an appellate court have to review an appeal from an order granting or denying a class action certification?

PQs Set 3

A

they have discretion to decide whether to hear it

needs to be filed with clerk of appellate court within 14 days after order is entered

237
Q

what are exceptions to the final judgment rule?

PQs Set 3

A

final judgment = decision that fully resolves the merits of a dispute, leaving nothing but enforcement

exceptions - In Certain Circumstances, An Appeal Can Be Made Prematurely
* injunction (grant or denial)
* certification by district court
* class action certification
* appointment of receiver
* admiralty cases
* collateral order doctrine
* bankruptcy cases
* mandamus
* patent infringement order

if exception applies, appeal is allowed

238
Q

what is the timeline for filing a notice of appeal?

PQs Set 3

A

generally 30 days after entry of a judgment

file the notice of appeal with district court clerk

239
Q

if there’s a federal court sitting in diversity and there’s a conflict between federal and state law, what happens under a federal-rule analysis?

PQs Set 3

A

valid federal rule applies IF the rule (1) is arguably procedural AND (2) does not abridge, modify, or enlarge a substantive right

240
Q

Federal Tort Claims Act - where is venue proper when suing the US Govt under this Act?

PQs Set 4

A

govt is sued under the Federal Tort Claims Act for the tortious conduct of a federal employee

venue is proper where the plaintiff resides OR where the act or omission complained of occurred

241
Q

standard of review by appellate court from a bench trial (lower court)

PQs Set 4

A

findings of fact –> clear error
conclusions of law –> de novo

242
Q

proper venue for suit against federal officer/employee acting in their official capacity (recovery from govt)

PQs Set 4

A

special venue rules allow any district where
* any D resides
* substantial portion of events occurred or property is located
* P resides if no real property involved

243
Q

proper venue for suit against federal officer/employee acting in their individual capacity (recovery from officer/employee)

PQs Set 4

A

general venue rules allow any district where
* any D resides if all D reside in same state
* substantial portion of events occurred or property is located
* any D subject to PJ if neither of the above applies

244
Q

standard of review for appeal of motion for summary judgment

PQs Set 5

A

de novo

A trial judge’s decision to grant a summary judgment motion is a legal ruling. As a legal ruling, the appropriate standard of review by the appellate court is de novo.

245
Q

standard for rented motion for judgment as a matter of law

PQs Set 5

A

may grant motion if court finds that there is insufficient evidence for a jury reasonably to find for that party

verdict was clearly erroneous

If the court finds that there is sufficient evidence for the jury to have reasonably found for a party, the court should not grant the motion

246
Q

which laws about preclusion apply when determining claim preclusion for a prior federal judgment in another court?

PQs Set 5

A

federal common law requires that you follow the law of the state in which the federal court rendered its judgment, unless state law is incompatible with federal interest

so follow laws of the original federal court that decided the claim

247
Q

when does a party have to object to proposed jury instructions for the objection to be timely?

NCBE MBE Simulated Test 1

A

at the time that the court first informs the party that it will not give the instruction

in this question, they needed to object after the judge told the parties that it wouldn’t use their submitted instructions NOT after the judge gave the instructions to the jury

248
Q

when can the parties serve interrogatories + other discovery devices? (in general)

NCBE MBE Simulated Test 1

A

they have to wait until after the discovery planning conference

249
Q

motion for relief on the judgment

MBE Mixed #1

A

Rule 60(b)

allows a ct to relieve a party from a final judgment or order for a motion

needs to be filed w/in reasonable time (no later than 1 year following entry of judgment by opposing party)

if judgment was based on fraud or newly discovered evidence

Rocking the Bar Exam (15 decks)

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