CIV PRO

Question 1

What is personal jurisdiction primarily concerned with?

Answer 1

Fairness to defendant

Question 2

What is general personal jurisdiction?

Answer 2

Plaintiff can sue defendant for anything generally

Question 3

What are the three bases for general jurisdiction?

Answer 3

• Consent (express or implied due to failure to properly object)
• Presence (continuous and systematic contacts with the state or present in state when served)
• Domicile

Question 4

How is a person’s domicile defined?

Answer 4

A person is domiciled in the state that is her permanent home where she intends to stay indefinitely.

Question 5

Where is a corporation domiciled?

Answer 5

In the state where it is incorporated and where its principal place of business is located

Question 6

Where is a partnership or LLC domiciled?

Answer 6

A partnership or LLC is domiciled where its partners or members are citizens.

Question 7

Specific personal jurisdiction?

Answer 7

The lawsuit must arise out of specific contacts with the state (e.g. a tort committed in the state or a contract or business transaction arising out of contacts with the state)

Question 8

What must be established for specific personal jurisdiction?

Answer 8

Must be both constitutional under state constitution and constitutional under the Due Process Clause of the U.S. Constitution.

There must be minimum contacts with the forum state so as not to offend “traditional notions of fair play and substantial justice”.

Question 9

What is subject-matter jurisdiction concerned with?

Answer 9

The power of the federal court to hear a certain kind of case.

Question 10

What is federal-question jurisdiction?

Answer 10

It must arise out of federal law. The federal issue must be on the face of the well-plead complaint.

Question 11

What is required for diversity jurisdiction?

Answer 11

There must be complete diversity at the time the case is filed and the amount in controversy must exceed $75,000.

Question 12

What allows state claims to be brought in a federal case?

Answer 12

State claims may be brought in a federal case if they arise out of a common nucleus of operative fact. Further, nondiverse parties may be sued in a diversity case.

Tip: in a diversity case, a defendant may implead a nondiverse party, but a plaintiff may not sue a nondiverse party directly if the only basis for the lawsuit is diversity.

Question 13

What is the removal process?

Answer 13

A defendant may remove a case within 30 days of being on notice that the case is removable (but not over a year in diversity cases unless plaintiff acted in bad faith).

Question 14

What are the limitations on removal based on diversity grounds?

Answer 14

Defendants cannot remove on diversity grounds if any defendant is domiciled in the state in which they are sued.

Tip: When a defendant removes a case, do not look to traditional venue rules to determine venue. A defendant has only one venue option—it may remove the action to the federal court that geographically embraces the state court where the suit was filed.

Question 15

What is remand?

Answer 15

If a plaintiff wishes to file a motion to remand to state court due to failure to comply with procedure requirements of the rule, it must do so within 30 days after removal.

Question 16

Where is venue proper in a legal case?

Answer 16

Venue is proper where any defendant resides if all defendants reside in the same state or where a substantial part of the events or omissions giving rise to the claim occurred.

Question 17

What is a transfer to proper venue?

Answer 17

Occurs if the case is filed in the wrong venue; the law of the transferee court applies

Question 18

When does happen a transfer to more appropiate forum?

Answer 18

Occurs when there is a more convenient forum for the case. The federal court may transfer it in the interests of justice. The law of the transferor court applies.

Question 19

What does forum non conveniens refer to?

Answer 19

If a case should be litigated in a different forum (e.g., a different country) a court may dismiss the case.

Question 20

What is required for service of process?

Answer 20

Plaintiff must serve defendant with a summons and copy of the complaint.

Question 21

What is the age requirement for a process server?

Answer 21

The process server must be at least 18 years old and not a party to the case.

Question 22

What methods can a plaintiff use to serve an individual?

Answer 22

State law: follow the state law methods where the federal court is located or where service is made,
Agent: deliver a copy of the summons and complaint to an agent appointed by defendant or law,
Individual: deliver a copy of the summons and complaint to the individual personally, or
Dwelling: leave a copy of the summons and complaint at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.

SAID

Question 23

How can a plaintiff serve a corporation?

Answer 23

To serve a corporation, a plaintiff may use the state law methods where the district court is located or where service is made, or it may serve an officer, a managing or general agent authorized, or any other agent appointed to receive service.

Question 24

What is the waiver process in service of process?

Answer 24

A plaintiff may ask a defendant to waive formal service of process by sending the complaint, two copies of a waiver form, and a prepaid means for returning the form via first-class mail or other reliable means.

Question 25

What is the time frame for a defendant to respond if they waive service?

Answer 25

If defendant waives formal service, it has 60 days to answer the complaint (rather than 21). If defendant does not, it must pay for formal service of process.

Question 26

What is the time frame for serving a complaint after it is filed?

Answer 26

A **complaint** must be served within 90 days after it is filed.

Question 27

What is the time frame for serving a a response to a complaint after it is filed?

Answer 27

A response (answer or motion) must be served within **21 days** (or **60** if formal process was waived) after the complaint is served.

Question 28

What are the time frames to amend a **pleading**?

Answer 28

A **pleading** may be amended as of right within **21 days** after service (or if the pleading requires a responsive pleading, 21 days after service of the responsive pleading or motion). After 21 days, a party may amend its pleadings with consent of the other party or the court. The court will freely give leave when justice so requires.

Question 29

What is **joinder of new claims**?

Answer 29

Once a party has one properly filed claim, it can bring all claims if the court has jurisdiction. ## Footnote This applies to plaintiff’s claims as well as defendant’s **counterclaims** (e.g., suing plaintiff) or **crossclaims** (e.g., D v. D or P v. P).

Question 30

What is a compulsory **counterclaim**?

Answer 30

Federal law recognizes ***compulsory counterclaims*** where defendant must bring a counterclaim if it arises out of the same transaction or occurrence or defendant loses the right to bring the claim later.

Question 31

What is a ***permissive counterclaim***?

Answer 31

A permissive counterclaim may be one not arising out of the same transaction or occurrence.

Question 32

What is a **crossclaim**?

Answer 32

A crossclaim is a claim asserted by one party against a coparty (i.e., D v. D or P v. P). It must arise out of the same transaction or occurrence as the initial claim. A crossclaim is not compulsory.

Question 33

Which are the cases of the **joinder of parties**?

Answer 33

* Plaintiffs joining plaintiffs * Defendant adds defendant * Intervention * Interpleader

Question 34

What are the requirements for class actions?

Answer 34

**Commonality, adequacy, numerosity, typicality**, and (with common question suits) plaintiffs need to show **superiority** and that common questions **predominate**.

Question 35

How does **plaintiffs joining plaintiffs** work? | In joinder of parties

Answer 35

Plaintiffs may sue together if they assert a right to relief jointly, severally, or in the alternative with respect to claims arising out of the same transaction or occurrence and involving a common question of law or fact.

Question 36

How does **defendant adds defendant** work? | In joinder of parties

Answer 36

A defendant may *implead* a new claim against a new party if that party may be liable to defendant for part or all of the recovery. This must be filed within 14 days of serving the answer, otherwise leave of court is required.

Question 37

How does **intervention** work? | In joinder of parties

Answer 37

A movant may intervene as a matter of right if: **(1)** it has an interest related to the property or transaction that is the subject of the action, **(2)** disposition without the movant may impair or impede the movant’s ability to protect its interest, and **(3)** its interest is not adequately represented by the existing parties. The motion must be timely made. A court may grant permissive intervention if the party has a claim or defense that shares a common question of law or fact with the main action.

Question 38

What is **interpleader**? | In joinder of parties

Answer 38

This occurs when the holder of a property subject to conflicting claims (usually an insurance company that holds a common fund) may file a lawsuit as a plaintiff and join all claimants to avoid the possibility of double liability.

Question 39

What is the minimum requirement for statutory **interpleader** to enter federal court? | In joinder of parties

Answer 39

Under statutory interpleader, $500 is enough and minimal diversity is enough (i.e., if there is diversity between any two of the claimants) to get into federal court.

Question 40

Under the ***Class Action Fairness Act (CAFA)***, what conditions allow federal jurisdiction over a class action?

Answer 40

***The Class Action Fairness Act (CAFA)*** allows a federal court to have jurisdiction over a class action if there are 100 or more plaintiffs seeking over $5 million and they have minimal diversity.

Question 41

What is a **temporary restraining order**?

Answer 41

This is a stopgap measure that should not last longer than 14 days unless good cause is shown. ## Footnote Notice to the other party is not needed.

Question 42

What is a **preliminary injunction**?

Answer 42

A preliminary injunction is equitable relief with the object of preserving the status quo. ## Footnote Notice must be given to the adverse party.

Question 43

What can the parties discover?

Answer 43

Parties may discover anything that is **relevant** and not **privileged**.

Question 44

What discovery methods can parties use?

Answer 44

Parties can use interrogatories (25 per side), depositions, and requests to admit. ## Footnote Tip: depositions and subpoenas are the only methods that may be used on a nonparty.

Question 45

What is the work product doctrine?

Answer 45

**Work product** (prepared in anticipation of litigation) is not discoverable unless there is a **substantial need** and **undue hardship**. ## Footnote Attorney's mental impressions are never discoverable.

Question 46

What is the purpose of the **26(f) conference** in federal court?

Answer 46

In federal court, the **26(f) conference** is where initial disclosures of (**DISS**) **d**amages calculation, **i**nsurance agreements, the identity of **s**upporting witnesses, and **s**upporting documents are made and a discovery plan is outlined. ## Footnote Tip: unfavorable witnesses or documents do not need to be disclosed.

Question 47

What happens during the **16(b) scheduling** conference?

Answer 47

The court enters a scheduling order and deadlines for motions ## Footnote This conference follows the 26(f) conference.

Question 48

What must parties disclose 30 days before trial? | **Petrial disclosures**

Answer 48

Parties must disclose the identity and reports of experts, the names of witnesses to be called at trial, and documents and depositions the parties plan to offer at trial.

Question 49

When are **Rule 11 sanctions** made?

Answer 49

**Rule 11 sanctions** are made if an improper paper is presented to the court.

Question 50

What happens if a motion is made by a party to impose Rule 11 sanctions?

Answer 50

That party must give the other party 21 days to withdraw the offending paper prior to filing the motion with the court.

Question 51

What law generally applies to **procedural issues** in federal court under diversity or supplemental jurisdiction?

Answer 51

Federal law ## Footnote Tip: this includes the Federal Rules of Evidence or Civil Procedure, when to bring a class action, and the right to a jury trial.

Question 52

What law applies to **substantive issues**?

Answer 52

Generally, **state law** applies to **substantive issues**. ## Footnote Tip: this includes which party has the burden of proof, which statute of limitations applies, caps on damages, elements of claims, and choice of law rules.

Question 53

Where is **federal common law** applied?

Answer 53

**Federal common law** is applied where Congress has given the courts the power to develop law (e.g., bankruptcy law, admiralty, and civil rights) or where a federal rule is **necessary** and state law would **frustrate** federal objectives. (This latter category is very narrow and usually comes up when a case would directly affect the U.S. government.)

Question 54

What does **the *Klaxon* doctrine** state?

Answer 54

A federal court sitting in diversity must apply the choice of law approach prevailing in the state where it sits ## Footnote Tip: this is a MBE favorite!

Question 55

What does the **Seventh Amendment** guarantee regarding **jury trials**?

Answer 55

A jury pool must be taken from a cross section of the community. ## Footnote The jury itself does not need to be diverse.

Question 56

What is the deadline for demanding a jury trial? | **Jury trial request**

Answer 56

For an issue triable by jury, a party can demand a jury trial by serving the other parties a written demand (which can be in a pleading) “no later than **14 days** after the last pleading directed to the issue is served.” ## Footnote A proper demand may be **withdrawn** with **all parties’ consent**.

Question 57

What is the minimum and maximum **number** of jurors required?

Answer 57

A jury must begin with at least six and no more than 12 members. ## Footnote Unless the parties agree otherwise, the verdict must be **unanimous** and returned by a jury of **at least six**.

Question 58

When may a party file and furnish to every other party written requests for the jury instructions?

Answer 58

At the close of the evidence

Question 59

What are the requirements to **object to jury instructions**?

Answer 59

A party who objects to the instructions must do so in a timely manner, on the record, stating the matter objected to and the grounds

Question 60

What is needed for an appellate court to consider a plain error in the instructions?

Answer 60

That the error affects **substantial rights**, even if it has not been properly preserved or objected to.

Question 61

What is a directed verdict?

Answer 61

If there is no **substantial evidence** to support a verdict for the nonmoving party, a directed verdict will be given. ## Footnote The court looks at whether plaintiff has met its **burden of production**.

Question 62

When can the parties file the motion for a directed veredict?

Answer 62

Defendant may file this motion after plaintiff rests its case. Either party may file it after defendant rests its case.

Question 63

How it works a **renewed jmol**?

Answer 63

Under federal law, the party must have already made a motion for JMOL at some point. Here, the party is renewing it and must show the evidence is **insufficient as a matter of law** to support the jury’s verdict.

Question 64

What is the time frame to file for a renewed motion for judgment as a matter of law?

Answer 64

Within 28 days of the jury's verdict

Question 65

What grounds can lead to a new trial?

Answer 65

A new trial is granted if there were errors in the trial that tainted the jury’s decision-making or if the jury’s decision was against the **great weight of evidence**. It also may be granted if the verdict is **excessive** (i.e., remittitur) or **inadequate** (i.e., additur, which is not recognized by federal courts). ## Footnote New trials can be granted within 28 days of the jury's verdict.

Question 66

What is the time frame for a motion for a new trial?

Answer 66

Within 28 days of the entry of the jury’s verdict. The court may even order a new trial on its own.

Question 67

When can the court grant relief from judgement?

Answer 67

If there are circumstances like mistake, fraud, or new evidence that could not have been discovered, the court may grant relief from judgment.

Question 68

What is the time fram for a relief from judgement?

Answer 68

Generally, within one year of the judgment (but there are exceptions, e.g., fraud).

Question 69

What are the exceptions for appealing a final judgement?

Answer 69

Final judgments generally are appealable (exceptions: preliminary injunctions, interlocutory orders, and collateral matters). Orders granting a directed verdict or denying a new trial are appealable.

Question 70

What is the time frame for appealing a final judgment?

Answer 70

Generally, within 30 days after entry of judgment ## Footnote Some exceptions apply, such as for preliminary injunctions.

Question 71

Which are the steps after a complaint?

Answer 71

1. Complaint 2. Pre-answer motions 3. Answer or motion 4. Trial 5. Appeal

Question 72

What answers or motions can be given before the trial?

Answer 72

* Lack of personal jurisdiction * Insufficient process/service * Venue * Affirmative defenses

Question 73

Which motions may be brought anytime through trial?

Answer 73

* Failure to join a necessary party * Judgment on the pleadings * Failure to state a valid claim or defense

Question 74

Which motion can be brought anytime, even on appeal?

Answer 74

Lack of subject-matter jurisdiction

Question 75

How a **Motion for summary judgment** works?

Answer 75

The question is whether there is a genuine issue of material fact. The **moving party** must show there is no genuine issue of material fact. The **burden then shifts to the nonmoving party**, which must show there is a genuine issue of material fact. The motion is looked at in the light most favorable to the nonmoving party. ## Footnote Tip: the court will deny the motion if the case involves something subjective like motive, intent, or credibility.

Question 76

What is a "**Failure to state a claim upon which relief can be granted**"?

Answer 76

A defendant brings this motion, which essentially states, even if everything plaintiff says in its complaint is true, there is no recognized violation of any legal rights.

Question 77

When is a **default** entered by a clerk? | Veredicts and judgements

Answer 77

A **default** is entered by a clerk if there is no timely answer. ## Footnote Tip: The default itself does not give plaintiff any rights to collect money. Plaintiff must seek a default judgment.

Question 78

Who makes the **default judgements**?

Answer 78

**Default judgments** are made by a clerk for a “**sum certain**” (and can be **without notice**) or by a **judge** (which requires seven-days’ notice if defendant has appeared).

Question 79

The "**No progress dismissals**" are usually with prejudice. What does that mean?

Answer 79

“With prejudice” means that the lawsuit cannot be refiled.

Question 80

What is an example of a **involuntary dismissal**?

Answer 80

Failing to comply with a court order. ## Footnote Usually are with prejudice. Voluntary dismissals by plaintiff generally are also without prejudice.

Question 81

What is res judicata?

Answer 81

Claim preclusion preventing re-litigation of the same claim between the same parties after a final judgment ## Footnote It applies if the claim was part of the same transaction or occurrence.

Question 82

Which are the requirements for the res judicata?

Answer 82

* Same claim * Same parties * Final judgement * On the merits

Question 83

What is the **two dismissal rule**?

Answer 83

If plaintiff voluntarily dismisses a case twice, the second dismissal is with prejudice and plaintiff cannot refile the lawsuit or one that arises out of the same facts.

Question 84

What test is used to determine if claims are the same under Res Judicata?

Answer 84

Use the **transaction or occurrence** test: If it was or could have been asserted because it was part of the same transaction or occurrence, it is the same claim.

Question 85

What "**same parties**" means in the context or res judicata?

Answer 85

The parties must be the same or in privity.

Question 86

What "**final judgement**" means in the context or res judicata?

Answer 86

This means it is not modifiable (e.g., child custody, alimony, etc.).

Question 87

What is the effect of compulsory counterclaims in Res Judicata?

Answer 87

They are also barred.

Question 88

What types of judgments qualify as '**on the merits**'?

Answer 88

This includes a full trial, a dismissal with prejudice, claims decided on summary judgment or JMOL, or default or consent judgments.

Question 89

True or False: A dismissal with prejudice for failing to comply with a discovery order may be considered 'on the merits'.

Answer 89

True

Question 90

What does the **Full Faith and Credit Clause** require regarding judgments from state courts?

Answer 90

Judgments from state courts be given the same effect in any other court that they would be given in the state in which they were handed down.

Question 91

What must be considered when determining the preclusive effect of a prior judgment?

Answer 91

The law of the court that decided it. So, if a judgment would be held to have a nonpreclusive effect in the state it was handed down in, then it cannot have a preclusive effect in any other court.

Question 92

What is the definition of COLLATERAL ESTOPPEL (Issue Preclusion)?

Answer 92

Prevention of relitigation of issues that have been actually litigated and decided.

Question 93

What are the requirements for issues to qualify for collateral estoppel?

Answer 93

* Same issue * Actually litigated * Actually decided * Necessary to the court's judgment

Question 94

What does **same issue** means? | In collateral estoppel

Answer 94

The **issues** must be **exactly** the same.

Question 95

What does **actually litigated** entails? | In collateral estoppel

Answer 95

The issues need to be **actually raised** and **litigated**.

Question 96

What is **Nonmutual Collateral Estoppel**?

Answer 96

Allows a party to invoke collateral estoppel against a party who litigated and lost on an issue in a prior action.

Question 97

What does **Defensive** Nonmutual Estoppel means?

Answer 97

Means that the issue preclusion may be raised as a shield by a new defendant.

Question 98

Fill in the blank: Some states do not allow _______ nonmutual collateral estoppel.

Answer 98

offensive

Question 99

True or False: Federal law allows offensive nonmutual collateral estoppel.

Answer 99

True

Question 100

What are the two forms of **Personal jurisdiction**?

Answer 100

1) General personal jurisdiction; 2) Specific personal jurisdiction.