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MBE Last Sets > Civ Pro > Flashcards

Civ Pro Flashcards

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1
Q

relation back doctrine

A

an amended pleading is considered to have been filed on the day the original pleading was filed if the amended pleading concerns the same conduct, transaction, or occurrence as the original pleading
usually used for SoL purposes

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1
Q

Rule 15(c)

A

allows a plaintiff to substitute the name of a party when there was a case of mistaken identity if:
- the D being brought in had notice of the action AND
- the D knew or should have known that but for P’s mistake about D’s identity, the suit would have been brought against him

if satisfied, the amended complaint relates back to the original filing

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2
Q

preliminary injunction purpose

A

preserve status quo until a hearing on the merits
D must be given notice of the request and an opportunity to be heard before the a decision is made

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3
Q

temporary restraining order

A

preserve the status quo immediately without a hearing on the merits

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4
Q

what must the party seeking the order show for a TRO

A

must show irreparable harm if the TRO is not granted

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5
Q

what must an answer by the D contain

A

1- deny or admit the allegations in the complaint
2- set out all affirmative defenses

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6
Q

how long does the D have to file an answer after service if no Rule 12 motion was made

A

21 days

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7
Q

how long does the D have to file an answer after a rule 12 motion was made and denied

A

14 days

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8
Q

what happens if D fails to file an answer in time

A

default judgment

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9
Q

what is default

A

court clerk makes an entry of a default judgment if the D does not respond with an answer in the required time period

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10
Q

when can the court clerk enter a default

A

when the amount of the claim is for a sum certain AND
D has not yet appeared in the case

If D has appeared, only the judge can enter a default judgment

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11
Q

what must a complaint contain

A

1- state the grounds for federal SMJ
2- contain a statement of the claim that, if proven, entitles the plaintiff to relief
3- A demand for judgment of relief

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12
Q

two documents required for service of process

A

1- summons from court informing D of lawsuit and how much time D has to respond AND
2- a copy of the complaint

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13
Q

five methods of service of process

A

1- waiver of service
2- personal service/handing to D
3- handing docs to a responsible person at D’s usual place of abode
4- service on an authorized agent
5- any method valid in the state where the federal court is located or where federal service is to be made

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14
Q

what law does the federal court apply in a fed question claim (choice of law issue)

A

federal law

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15
Q

what law does the federal court apply for a diversity case

A

fed court applies its own procedural rules and federal rule of evidence
fed court applies substantive law of the state in which it sits, including that state’s choice of law provisions

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16
Q

rule for whether a rule is substantive or procedural

A

A rule is substantive if it substantially affects the outcome of the case

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17
Q

what are common substantive rules

A

Statute of limitations
choice of law rules
elements of a claim or defense

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18
Q

two main ways to determine where venue is proper

A

1- in a federal court where any D resides, if all Ds reside in the same state
2- in a fed district where a substantial part of the events or omissions occurred or where a substantial part of the property is located

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19
Q

what is venue

A

which federal court can properly hear the case

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20
Q

fallback provision for venue

A

venue is proper where any D is subject to PJ with respect to the action

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21
Q

what is removal

A

A defendant in state court has the claim moved (removed) t federal court

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22
Q

rule for when removal is proper

A

A case can only be removed to federal court when the federal could have exercised fed jx in the first place

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23
Q

two requirements for a court’s exercise of PJ over a D

A

1- state statute must authorize PJ
2- the exercise of PJ must meet the constitutional requirements of due process (minimum contacts test)

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24
Q

general PJ

A

court has jx over all causes of action over the D in the state bc the D is at home in the state

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24
Q

specific PJ

A

D has the necessary minimum contacts with the forum state such that the exercise of PJ over the D for this current case would be fair and reasonable

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25
Q

where is an individual at home for general PJ

A

state of domicile

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26
Q

where is a corp at home for general PJ

A

state of incorp and PPB

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27
Q

when can a plaintiff NOT assert supplement jx

A

when the plaintiff has jx solely bc of diversity jx

Ps in a diversity jx case cannot assert supplement jx for additional claims UNLESS there are multiple plaintiffs

28
Q

federal question SMJ

A

the case arises under federal law

a federal defense does NOT make the case a fed Q case

29
Q

diversity SMJ

A

complete diversity of citizenship on both sides and the value of P’s good faith claim is more than $75k

30
Q

supplemental SMJ requirements

A

1- claim does not already fed Q jx or div jx on its own
2- the claim arises from a common nucleus of operative fact as the claims that have SMJ such that a litigant would normally be expected to try both claims in one action

31
Q

where is an unincorporated biz a citizen/have domicile

A

in every state in which it has a member

32
Q

when is diversity determined in the life of a suit

A

on the date the suit is filed

33
Q

in what types of pleadings can Rule 12 motions be pled?

A

Answer or pre-answer motion

34
Q

Rule 12 defenses

A

1- lack of SMJ
2- lack of PJ
3- improper venue
4- insufficient process
5- insufficient service of process
6- failure to state a claim
7- failure to join an indispensable party

35
Q

which rule 12 defense cannot be waived

A

lack of SMJ
can be raised at any time, even on appeal

36
Q

what rule 12 defenses must be waived by D in a rule 12 motion or answer or they are waived

A

1- lack of PJ
2- improper venue
3- insufficient process
4- insufficient service of process

37
Q

which rule 12 defenses can be raised any time prior to trial or at trial

A

1- failure to state a claim
2- failure to join an indispensable party

38
Q

during what time period can a pleading be amended as a matter of course

A

within 21 days of service or if it’s a pleading that requires a response, within 21 days of the response

39
Q

rule 11

A

requires an attorney to certify that the document they are submitting to the court is not for an improper purpose

all of the contentions in the document are supported

40
Q

procedure for filing for rule 11 sanction

A

1- filing party must give the opposing party an opportunity to withdraw the offending document
2- potential violator has 21 days (or time set by the court) to withdraw or correct the document

41
Q

initial disclosures (rule 26)

A

must disclose all info you may use to support your claim or defense unless the info is going to be used solely for impeachment (including identity of experts)

a party has the duty to provide all information reasonably available, that is not work product or privileged, that they might use during trial as support, including a computation of damages

other side has to ask you for info that goes AGAINST your claim during discovery

42
Q

Rule 26 pre-trial conference

A

where the parties create a proposed disco plan to submit to the court
parties meet to confer about claims, defenses, disco, etc

43
Q

Rule 16 pre-trial conference

A

court enters an order that limits the time for joinder, motions, or disco and can set the trial date

44
Q

for what type of claim is there a right to a jury trial

A

if the claim is at law -> a claim for money damages
no right to jury trial in a case for equitable relief

45
Q

is there is a right to a jury trial for case with equitable and legal claims?

A

No.
The damage claim will be tried by jury and the finding will bind the court on the equitable claim.

46
Q

how many jurors are required in fed court

A

at least six but no more than 12

47
Q

where do objections to jury instructions have to be made

A

must be made on the record
oi

48
Q

when are objections to jury instructions not waived

A

if the failure to object was due to plain error and affects a substantial right

49
Q

standard for a motion for summary judgment

A

based on all of the info presented, there is no genuine dispute of material fact and the moving party is entitled to a judgment

50
Q

when is a motion for summary judgment made

A

before trial

51
Q

standard for a motion for judgment as a matter of law

A

no reasonable jury would have a basis to find for the nonmoving party based on the evidence presented at trial
court must view the evidence in the light most favorable to the nonmoving party

52
Q

when is a motion for judgment as a matter of law made

A

at trial

53
Q

renewed motion for a judgment as a matter of law

A

second JMOL motion
must have made a JMOL at trial to renew

54
Q

when is a renewed motion for a judgment as a matter of law made

A

after the jury has reached its verdict and within 28 days of the judgment in the case

55
Q

when can a court grant a motion for a new trial

A

for errors made during the trial or bc the verdict is against the weight of the evidence

56
Q

when is a motion for a new trial made

A

must be filed within 28 days of the judgment

57
Q

what is a final judgment

A

a judgment that leaves nothing left to do at a trial court level and is thus appealable- a judgment that determines the merits of the entire case

58
Q

what is an interlocutory appeal

A

an appeal of a court’s judgment that is not a final judgment
only allowed in certain situations
interlocutory appeal to a lower court’s injunction, certification of a class

59
Q

interlocutory appeals act

A

allows the appeal of a non-final order if:
- the district judge certifies that the order involves a controlling issue of law
- that is debatable AND
- the court of appeals agrees to hear it

60
Q

appeal is based on a claimed error of a matter of law by the trial judge - what is the standard the appellate court uses to review the judgment?

A

reviewed de novo

61
Q

appeal is based on a claimed error of a matter of judicial discretion by the trial judge - what is the standard the appellate court uses to review the judgment?

A

reviewed on an abuse of discretion standard

must show an abuse of discretion before the case will be reversed

62
Q

appeal is based on a claim that the jury decided the case incorrectly - what is the standard the appellate court uses to review the judgment?

A

reasonable jury standard
if, in viewing the evidence in the light most favorable to affirming the jury’s verdict, a reasonable jury could have reached the same verdict
HIGH bar

63
Q

merger

A

occurs when the P wins on her claim and all related claims merge with the judgment

64
Q

bar

A

occurs when the P loses in case 1 and is prevented from bringing the claim again in case 2

65
Q

three requirements for claim preclusion

A

1- second case is bt the same P and same D, usually in the same configuration
2- there is a valid, final judgment on the merits
3- the claims are the same

66
Q

what law applies to a preclusion question

A

federal common law

67
Q

what law does federal common law apply in a diversity case

A

state law

68
Q

issue preclusion

A

an issue was litigated during case one- like an element of a CoA - instead of the CoA itself
aka collateral estoppel

69
Q

four requirements for issue preclusion

A

1- must be a final judgment
2- the issue must have been actually litigated and determined
3- the issue must have been essential the judgment (judgment turned on the issue)
4- party against whom issue preclusion is being asserted must have had his day in court (fairness)

70
Q

is a default judgment or a consent decree “actually litigated and determined” for issue preclusion

A

No

MBE Last Sets (9 decks)

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