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My MBE MEE > Civ Pro MBE > Flashcards

Civ Pro MBE Flashcards

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1
Q

Subject-Matter Jurisdiction

A

1) Diversity of Citizenship 2) Federal Question

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2
Q

Amount in Controversy

A

Must be in excess of $75K • Court must have “legal certainty”

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3
Q

Adding Claims

A

Plaintiff can ADD claims if one exceeds $75K Single Plaintiff can ADD claims against Single Defendant to reach $75K Multiple Plaintiffs via Supplemental Jurisdiction If Single Plaintiff meets $75K then other plaintiffs can join Cannot join if no single claim exceeds $75K

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4
Q

Class Action

A

One named member must meet $75K

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5
Q

Diversity Jurisdiction

A

1) Case exceeds $75K 2) Complete Diversity of Citizenship - No plaintiff may be a citizen of the same state as any defendant

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6
Q

Citizenship - Domicile

A

Present location & Intent to stay

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7
Q

US Citizen + Foreign Citizen

A

Diversity

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8
Q

Two Foreign Citizens

A

NO Diversity

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9
Q

Corporation - Domicile

A

State of incorporation AND • Principal place of business

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10
Q

Joining Parties

A

CANNOT join a party just to obtain Diversity

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11
Q

Federal Question

A

1) Plaintiff’s claim must be based on federal law 2) Well-Pleaded Complaint Rule: Federal issue must be obvious Federal Issue as a defense is NOT a federal question

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12
Q

Federal Question Cases

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1) Admiralty 2) Maritime 3) Intellectual Property

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13
Q

Supplemental Jurisdiction

A

May add claims without subject-matter jurisdiction if they arise from a “common nucleus of facts”

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14
Q

Supplemental Jurisdiction - Allowed

A

1) Compulsory Counterclaim 2) Joinder in Compulsory Counterclaim 3) Cross-claim 4) Impleader of 3rd Party Defendants

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15
Q

Supplemental Jurisdiction - NOT Allowed

A

1) Original Plaintiff vs. 3rd Party Defendant 2) Compulsory Joinder 3) Joinder of Defendants 4) Intervention

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16
Q

Supplemental Jurisdiction & Discretion

A

Court has DISCRETION to apply Supplemental Jurisdiction

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17
Q

Personal Jurisdiction

A

In personem • Ability to bring the individual into court

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18
Q

Personal JX General Rules

A

1) Present/ Personally Served 2) Domiciled 3) Consent

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19
Q

Long-Arm Statute

A

Gives courts the power to reach out-of-state persons

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20
Q

Minimum Contacts Standard

A

1) Suit does not offend traditional notions of Fair Play & Justice 2) Defendant could Reasonably Anticipate litigation

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21
Q

Minimum Contacts - Corporations

A

Purposeful Availment • Systematic & Continuous Activities

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22
Q

IN REM JURISDICTION

A

Jurisdiction over an object/property

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23
Q

QUASI IN REM JURISDICTION

A

Going after property to satisfy a judgment against an individual

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24
Q

Service of Process

A

1) Only in the state where district court sits OR 2) Anywhere allowed by long-arm statute

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25
Q

100 Mile Bulge Rule

A

1) Out-of-state service allowed within 100 mile radius 2) Only for out-of-state 3rd party defendants/indispensable parties

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26
Q

Service of Process & Notice

A

Method must give adequate NOTICE

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27
Q

Proper Ways to Serve Process

A

1) Personal Service by non-party over 18 2) At Home with person of suitable age 3) First Class Mail 4) Authorized Agent 5) State Law Methods A - Abode W - Waiver A - Agent S - State method P - Personal service

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28
Q

Out-of-State Service of Process

A

1) Mail 2) Newspaper if no other reasonable way

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29
Q

Service of Process - Corporations

A

1) Officer or Designated Agent 2) Anyone of sufficiently high placement

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30
Q

Removal

A

When a State Court case could have originally been brought in Federal Court

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31
Q

Who Can Remove

A

1) Only DEFENDANT may remove 2) ALL defendants must agree

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32
Q

Removal - Timing

A

Filed within 30 DAYS of service of Complaint

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33
Q

Removal - Diversity Cases

A

1) Case cannot be removed more than 1 year after start 2) Defendant cannot remove if he is a citizen of forum state

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34
Q

Removal Multiple Claims

A

If one claim is removable, then the entire case can be removed

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35
Q

Remand

A

Plaintiff wants to bring case back to State Court after improper Removal

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36
Q

Remand - Timing

A

Within 30 DAYS of filing of Notice of Removal • Defendant has burden to show Removal was proper

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37
Q

Venue

A

The proper Federal District Court for the case Venue is based on where DEFENDANT resides

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38
Q

Proper Venue

A

1) Where any defendant resides, if all defendants reside in same state 2) Where substantial part of events took place ONLY IF 1 & 2 DON’T APPLY - 3) Where there is Personal Jurisdiction over defendant

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39
Q

Venue - Corporations

A

1) Principal place of business 2) Any district in state of incorporation

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40
Q

Transfer of Venue - Proper Venue

A

1) Court may TRANSFER to another district 2) For the convenience of parties & interest of justice 3) Law of original venue will apply

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41
Q

Transfer of Venue - Improper Venue

A

1) Judge must dismiss OR transfer in the interest of justice 2) Transfer to any district where the case could have originally been brought

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42
Q

Transfer by Consent

A

Both parties must consent

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43
Q

Dismissal for Improper Venue

A

If the more convenient forum is a foreign country

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44
Q

Complaint

A

Filing of Complaint commences Statute of Limitations Service of the Complaint within 90 days

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45
Q

Elements of the Complaint

A

1) Statement of Jurisdiction 2) Statement of Facts (not theory) 3) Demand for Relief

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46
Q

Answer

A

1) Signed by lawyer 2) Whatever is not denied is admitted 3) Served within 21 days of service of Complaint

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47
Q

Affirmative Defense

A

Pled in Answer Contributory Negligence • Statute of Frauds • Statute of Limitations • Illegality

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48
Q

Amendment as of Right

A

Once within 21 days of service of pleading

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49
Q

After 21 Days Amendment

A

Need Court’s permission • “When justice so requires”

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50
Q

Relation Back

A

Arose out of the same conduct, transaction, or occurrence

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51
Q

Relation Back (for PARTIES)

A

1) Same conduct, transaction, or occurrence 2) Within 90 days of filing the party had notice 3) Knew/should have known but for mistake of ID

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52
Q

Rule 11

A

Attorney signs to best of “knowledge, information, and belief” there is a basis for the claim Key Words

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53
Q

Counterclaim

A

Defendant raises a claim back at the plaintiff

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54
Q

Compulsory Counterclaim

A

1) Same transaction or occurrence 2) Supplemental jurisdiction

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55
Q

Permissive Counterclaim

A

1) NOT same transaction or occurrence 2) Needs independent jurisdiction

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56
Q

Permissive Joinder

A

1) Single transaction or occurrence 2) Common questions of law/fact

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57
Q

Compulsory Joinder

A

Party needs to be joined or unfair

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58
Q

1) Necessary Party

A

Impair Interest • If cannot join due to jurisdiction - Case may STILL PROCEED

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59
Q

2) Indispensable Party

A

Prejudice • If cannot join due to jurisdiction - Case must be DISMISSED

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60
Q

Class Certification

A

1) Size 2) Common Question 3) Typical 4) Representation/Conflict

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61
Q

Types of Class Actions

A

B1 = Impairment of Interests • B2 = Injunctive Relief • B3 = Common Question (the superior method)

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62
Q

Opting Out Class Actions

A

B1 & B2 = Members MAY NOT OPT OUT vs. • B3 = Member MAY OPT OUT

63
Q

Notice & Class Actions

A

B1 & B2 = Notice NOT required, in discretion of Court vs. • B3 = Notice to ALL members

64
Q

Diversity in Class Actions

A

1) Citizenship of the named representatives 2) One member must meet $75K+ OR the sum of claims is $5 million

65
Q

Appealability of Class Actions

A

If Certification of Class is denied - May be appealed

66
Q

Intervention as of Right

A

1) Interest in property/transaction 2) Interest is impaired 3) NO Court permission required

67
Q

Permissive Intervention

A

1) Claim/defense has common question of law/fact 2) Court permission IS required

68
Q

Interpleader

A

1 party owes something to 2 or more people

69
Q

Statutory Interpleader

A

1) Nationwide Service 2) ANY 2 claimants can be diverse 3) $500 or more at stake 4) Deposit money/property in Court/bond

70
Q

Rule Interpleader

A

1) NO Nationwide Service 2) Complete Diversity between claimant & ALL opponents 3) $75K+ requirement 4) NOT required to deposit money

71
Q

Impleader

A

Adding a 3rd party defendant who owes part or all of claim

72
Q

Cross Claim

A

1) Co-party 2) Same transaction or occurrence 3) Actual damage

73
Q

Discoverable

A

1) Not privileged 2) Relevant 3) “Proportional to needs of the case”

74
Q

Work Product

A

Generally immune from discovery Documents prepared in anticipation of trial

75
Q

Work Product - Discoverable

A

1) Substantial need 2) Cannot obtain without UNDUE HARDSHIP

76
Q

Absolute Immunity Work Product

A

Mental impressions • Conclusions • Legal opinions/theories

77
Q

EXPERT - Testifying

A

1) MUST provide ID 2) Expert must prepare report

78
Q

EXPERT - NOT Testifying

A

Discoverable only in “EXCEPTIONAL CIRCUMSTANCES”

79
Q

Duty to Supplement

A

Duty to supplement incomplete or wrong information • Must be done in a timely manner

80
Q

Deposition

A

Party or non-party • Written or oral • Non-party by subpoena • Limit = 10 You cannot depose the same person more than once without the court’s permission

81
Q

Interrogatories

A

Only to a PARTY • Written/Answered in writing • Limit = 25

82
Q

Request to Admit

A

Written request • Conclusively established

83
Q

Request to Produce

A

Documents in the other side’s possession, control, custody

84
Q

Physical/Mental Exam

A

1) Must be at issue 2) Court Order 3) Good Cause

85
Q

Object to a Request

A

Information not relevant

86
Q

Protective Order

A

Stop Discovery for embarrassment, harassment, undue burden

87
Q

Order to Compel

A

Party not complying with Discovery

88
Q

Conference of Parties

A

1) Court MUST have conference 2) Parties MUST submit Discovery plan

89
Q

Scheduling Conference

A

1) Court MUST have conference to limit time 2) Must issue SCHEDULING ORDER within 90 days of filing complaint 3) CANNOT be modified unless “Good Cause”

90
Q

Final Pretrial Conference

A

1) Court MAY hold conference 2) IF there is a conference, Court MUST issue Pretrial Order 3) ONLY modified to prevent “Manifest Injustice”

91
Q

Temporary Restraining Order

A

1) No notice 2) IMMEDIATE IRREPARABLE HARM 3) Expires in no more than 14 days

92
Q

Preliminary Injunction

A

1) Notice & Hearing required 2) IRREPARABLE HARM

93
Q

RIGHT TO JURY TRIAL

A

7th Amendment At least 6 jurors unless stipulated • Unanimous verdict unless stipulated

94
Q

Demand for a Jury

A

Made within 14 days after service of the last pleading

95
Q

Action in Equity

A

No right for actions based in equity (injunction, etc.)

96
Q

Law & Equity

A

Legal issue is tried by jury first • Equitable claim is settled by judge

97
Q

Withdrawing a Demand

A

Demand may be withdrawn IF all parties consent

98
Q

State Trials

A

No right to a jury in State trials • Number of jurors varies by State • Verdict does NOT need to be unanimous

99
Q

Judge’s Role - No Jury

A

Acts as Finder of Fact • States Findings & Conclusions • Mini-trial to dispose of the case

100
Q

Dismiss For Cause

A

Juror shows any bias/connection to case • No limit

101
Q

Peremptory Challenge

A

Dismissal for any reason • Each party has 3 • CANNOT dismiss for race/gender

102
Q

Balanced Pool of Jurors

A

Jury pool must be representative of overall community

103
Q

Jury Instructions

A

Must object before jury retires • Or waived for appeal

104
Q

Jury Deliberation

A

Allowed - Papers, Exhibits, & Notes • NOT Allowed: Anything not in evidence

105
Q

Juror Conduct

A

Cannot conduct experiments or studies outside jury room • Cannot talk to non-jurors about trial • Misconduct/Possible New Trial

106
Q

Prejudicial Information

A

New trial can be ordered for outside prejudicial information • Verdict will NOT be set aside for inside juror prejudice

107
Q

New Trial for Post-Trial Bias

A

1) Juror failed to honestly answer a material question 2) A correct answer would have led to a valid challenge

108
Q

12(b) Motion

A

Defendant is attacking the complaint

109
Q

Lack of Subject Matter Jurisdiction

A

Can be raised ANYTIME

110
Q

Waived if not included in Answer/12(b) Motion

A

Lack of Personal Jurisdiction • Improper Venue • Insufficient Service of Process

111
Q

Failure to Join a Party

A

May be raised before or at trial

112
Q

Failure to State a Claim

A

Even if the facts are true, there is no recovery • Insufficient facts • Dismissal with prejudice • May be raised before or at trial

113
Q

Motion to Strike

A

Before responding to a pleading • Within 21 days of service • For redundant, immaterial, or scandalous material

114
Q

Motion for a More Definitive Statement

A

Before responding to a pleading • Pleading is vague or ambiguous

115
Q

Motion for Summary Judgment

A

No genuine dispute of material fact • Filed until 30 days after discovery close • Denial not appealable • Burden on moving party • Partial judgment allowed

116
Q

Affidavits

A

Must be based on personal knowledge

117
Q

Judgment as a Matter of Law - Directed Verdict͛

A

Raised by defendant after plaintiff’s case • Raised by either party at the close of evidence

118
Q

JMOL Standard͛

A

A reasonable jury would not have a legally sufficient evidentiary basis to find for non- moving party • Evidence viewed in light most favorable to non-moving party

119
Q

Renewed Motion for Judgment as a Matter of Law͛

A

Must have filed a prior JMOL • Filed within 28 days after verdict • Judge may overturn verdict

120
Q

Motion for Relief from Judgment

A

Clerical error, oversight, or mistake • Fraud or misconduct by the other party

121
Q

Motion for a New Trial͛

A

Error would have caused different outcome • Judge erroneously admitted or excluded evidence • Improper conduct by party, witness, lawyer, or jury • Verdict is against clear weight of the evidence

122
Q

Remittitur

A

New trial for excessive damages • Unless the party agrees to reduction of award

123
Q

Additur͛

A

No Additur in Federal Court

124
Q

Newly Discovered Evidence͛

A

1) Evidence was discovered after trial 2) Party was reasonably diligent in searching before/during trial 3) Evidence was material

125
Q

Default Judgment

A

One party fails to plead or defend • Court enters default judgment

126
Q

Voluntary Dismissal

A

Plaintiff voluntarily dismisses • Before Answer/Summary Judgment • First time without prejudice

127
Q

Involuntary Dismissal

A

COURT dismisses the case

128
Q

Involuntary Dismissal - Without Prejudice

A

1) Lack of Jurisdiction 2) Venue 3) Failure to Join Indispensable Party

129
Q

Judicial appearance of bias

A

Parties can waive

130
Q

Grounds for Recusal

A

Judge MUST recuse himself and parties CANNOT waive if: 1) Personal knowledge of facts 2) Acted as lawyer with one of the other lawyers 3) Expressed an opinion on merits while in government employment 4) Financial interest in subject matter/party 5) Violates Due Process Rights

131
Q

Res Judicata/Claim Preclusion

A

1) Same parties or privity 2) Same transaction or occurrence 3) Judgment on the merits

132
Q

Res Judicata - Merger

A

Plaintiff wins case • Claim merges into judgment • Cannot sue on same cause of action

133
Q

Res Judicata - Bar

A

Plaintiff loses case • Barred from suing on same cause of action

134
Q

Claim Splitting

A

Plaintiff cannot SPLIT a claim

135
Q

Res Judicata does not apply to

A

1) Dismissal for lack of jurisdiction 2) Dismissal for improper venue 3) Settlement (unless after settlement, case is dismissed with prejudice)

136
Q

Collateral Estoppel/Issue Preclusion

A

1) Same issue 2) Final judgment 3) Issue necessary to judgment

137
Q

Collateral Estoppel does not apply

A

1) Settlement 2) Default Judgment

138
Q

Defensive Use of Collateral Estoppel

A

Same Plaintiff, New Defendant • New Defendant can use Collateral Estoppel as defense

139
Q

Offensive Use of Collateral Estoppel

A

New Plaintiff, Same Defendant • New Plaintiff cannot use Collateral Estoppel against Same Defendant

140
Q

Applicable Preclusion Rule - Diversity Cases

A

First case in Federal Court, apply federal preclusion rule • First case in State Court, apply the first jurisdiction’s preclusion rule

141
Q

FULL FAITH & CREDIT

A

One state must respect the other’s judgments

142
Q

APPEALS

A

Notice of Appeal Filed within 30 days of judgment

143
Q

Grounds for Appeal

A

1) Objections made at trial 2) Must state grounds 3) Waived if not preserved

144
Q

Appellate CourtGenerally reviews

A

issues of LAW • Deference to trial court for FACTS

145
Q

Appealing Errors

A

Outcome would have been DIFFERENT • No appeal if error was HARMLESS

146
Q

Collateral Order Exception

A

1) Conclusively determines disputed question 2) Resolves important issue separate from merits 3) Delay would cause irreparable damage

147
Q

Denial of Summary Judgment Appeal

A

Not appealable

148
Q

Order for New Trial

A

Not appealable

149
Q

Partial Final Judgment

A

Not preferred to avoid piecemeal appeals

150
Q

Appealable

A

Grant/Denial Injunctions • Certification/Denial of Class Action

151
Q

De Novo

A

Issues of Law

152
Q

Abuse of Discretion

A

Court Errors • Relevancy • Prejudice • Admissibility

153
Q

Clearly Erroneous

A

Issues of Fact

My MBE MEE (8 decks)

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