Civ Pro MBE Flashcards
Subject-Matter Jurisdiction
1) Diversity of Citizenship 2) Federal Question
Amount in Controversy
Must be in excess of $75K • Court must have “legal certainty”
Adding Claims
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
Class Action
One named member must meet $75K
Diversity Jurisdiction
1) Case exceeds $75K 2) Complete Diversity of Citizenship - No plaintiff may be a citizen of the same state as any defendant
Citizenship - Domicile
Present location & Intent to stay
US Citizen + Foreign Citizen
Diversity
Two Foreign Citizens
NO Diversity
Corporation - Domicile
State of incorporation AND • Principal place of business
Joining Parties
CANNOT join a party just to obtain Diversity
Federal Question
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
Federal Question Cases
1) Admiralty 2) Maritime 3) Intellectual Property
Supplemental Jurisdiction
May add claims without subject-matter jurisdiction if they arise from a “common nucleus of facts”
Supplemental Jurisdiction - Allowed
1) Compulsory Counterclaim 2) Joinder in Compulsory Counterclaim 3) Cross-claim 4) Impleader of 3rd Party Defendants
Supplemental Jurisdiction - NOT Allowed
1) Original Plaintiff vs. 3rd Party Defendant 2) Compulsory Joinder 3) Joinder of Defendants 4) Intervention
Supplemental Jurisdiction & Discretion
Court has DISCRETION to apply Supplemental Jurisdiction
Personal Jurisdiction
In personem • Ability to bring the individual into court
Personal JX General Rules
1) Present/ Personally Served 2) Domiciled 3) Consent
Long-Arm Statute
Gives courts the power to reach out-of-state persons
Minimum Contacts Standard
1) Suit does not offend traditional notions of Fair Play & Justice 2) Defendant could Reasonably Anticipate litigation
Minimum Contacts - Corporations
Purposeful Availment • Systematic & Continuous Activities
IN REM JURISDICTION
Jurisdiction over an object/property
QUASI IN REM JURISDICTION
Going after property to satisfy a judgment against an individual
Service of Process
1) Only in the state where district court sits OR 2) Anywhere allowed by long-arm statute
100 Mile Bulge Rule
1) Out-of-state service allowed within 100 mile radius 2) Only for out-of-state 3rd party defendants/indispensable parties
Service of Process & Notice
Method must give adequate NOTICE
Proper Ways to Serve Process
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
Out-of-State Service of Process
1) Mail 2) Newspaper if no other reasonable way
Service of Process - Corporations
1) Officer or Designated Agent 2) Anyone of sufficiently high placement
Removal
When a State Court case could have originally been brought in Federal Court
Who Can Remove
1) Only DEFENDANT may remove 2) ALL defendants must agree
Removal - Timing
Filed within 30 DAYS of service of Complaint
Removal - Diversity Cases
1) Case cannot be removed more than 1 year after start 2) Defendant cannot remove if he is a citizen of forum state
Removal Multiple Claims
If one claim is removable, then the entire case can be removed
Remand
Plaintiff wants to bring case back to State Court after improper Removal
Remand - Timing
Within 30 DAYS of filing of Notice of Removal • Defendant has burden to show Removal was proper
Venue
The proper Federal District Court for the case Venue is based on where DEFENDANT resides
Proper Venue
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
Venue - Corporations
1) Principal place of business 2) Any district in state of incorporation
Transfer of Venue - Proper Venue
1) Court may TRANSFER to another district 2) For the convenience of parties & interest of justice 3) Law of original venue will apply
Transfer of Venue - Improper Venue
1) Judge must dismiss OR transfer in the interest of justice 2) Transfer to any district where the case could have originally been brought
Transfer by Consent
Both parties must consent
Dismissal for Improper Venue
If the more convenient forum is a foreign country
Complaint
Filing of Complaint commences Statute of Limitations Service of the Complaint within 90 days
Elements of the Complaint
1) Statement of Jurisdiction 2) Statement of Facts (not theory) 3) Demand for Relief
Answer
1) Signed by lawyer 2) Whatever is not denied is admitted 3) Served within 21 days of service of Complaint
Affirmative Defense
Pled in Answer Contributory Negligence • Statute of Frauds • Statute of Limitations • Illegality
Amendment as of Right
Once within 21 days of service of pleading
After 21 Days Amendment
Need Court’s permission • “When justice so requires”
Relation Back
Arose out of the same conduct, transaction, or occurrence
Relation Back (for PARTIES)
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
Rule 11
Attorney signs to best of “knowledge, information, and belief” there is a basis for the claim Key Words
Counterclaim
Defendant raises a claim back at the plaintiff
Compulsory Counterclaim
1) Same transaction or occurrence 2) Supplemental jurisdiction
Permissive Counterclaim
1) NOT same transaction or occurrence 2) Needs independent jurisdiction
Permissive Joinder
1) Single transaction or occurrence 2) Common questions of law/fact
Compulsory Joinder
Party needs to be joined or unfair
1) Necessary Party
Impair Interest • If cannot join due to jurisdiction - Case may STILL PROCEED
2) Indispensable Party
Prejudice • If cannot join due to jurisdiction - Case must be DISMISSED
Class Certification
1) Size 2) Common Question 3) Typical 4) Representation/Conflict
Types of Class Actions
B1 = Impairment of Interests • B2 = Injunctive Relief • B3 = Common Question (the superior method)
Opting Out Class Actions
B1 & B2 = Members MAY NOT OPT OUT vs. • B3 = Member MAY OPT OUT
Notice & Class Actions
B1 & B2 = Notice NOT required, in discretion of Court vs. • B3 = Notice to ALL members
Diversity in Class Actions
1) Citizenship of the named representatives 2) One member must meet $75K+ OR the sum of claims is $5 million
Appealability of Class Actions
If Certification of Class is denied - May be appealed
Intervention as of Right
1) Interest in property/transaction 2) Interest is impaired 3) NO Court permission required
Permissive Intervention
1) Claim/defense has common question of law/fact 2) Court permission IS required
Interpleader
1 party owes something to 2 or more people
Statutory Interpleader
1) Nationwide Service 2) ANY 2 claimants can be diverse 3) $500 or more at stake 4) Deposit money/property in Court/bond
Rule Interpleader
1) NO Nationwide Service 2) Complete Diversity between claimant & ALL opponents 3) $75K+ requirement 4) NOT required to deposit money
Impleader
Adding a 3rd party defendant who owes part or all of claim
Cross Claim
1) Co-party 2) Same transaction or occurrence 3) Actual damage
Discoverable
1) Not privileged 2) Relevant 3) “Proportional to needs of the case”
Work Product
Generally immune from discovery Documents prepared in anticipation of trial
Work Product - Discoverable
1) Substantial need 2) Cannot obtain without UNDUE HARDSHIP
Absolute Immunity Work Product
Mental impressions • Conclusions • Legal opinions/theories
EXPERT - Testifying
1) MUST provide ID 2) Expert must prepare report
EXPERT - NOT Testifying
Discoverable only in “EXCEPTIONAL CIRCUMSTANCES”
Duty to Supplement
Duty to supplement incomplete or wrong information • Must be done in a timely manner
Deposition
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
Interrogatories
Only to a PARTY • Written/Answered in writing • Limit = 25
Request to Admit
Written request • Conclusively established
Request to Produce
Documents in the other side’s possession, control, custody
Physical/Mental Exam
1) Must be at issue 2) Court Order 3) Good Cause
Object to a Request
Information not relevant
Protective Order
Stop Discovery for embarrassment, harassment, undue burden
Order to Compel
Party not complying with Discovery
Conference of Parties
1) Court MUST have conference 2) Parties MUST submit Discovery plan
Scheduling Conference
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”
Final Pretrial Conference
1) Court MAY hold conference 2) IF there is a conference, Court MUST issue Pretrial Order 3) ONLY modified to prevent “Manifest Injustice”
Temporary Restraining Order
1) No notice 2) IMMEDIATE IRREPARABLE HARM 3) Expires in no more than 14 days
Preliminary Injunction
1) Notice & Hearing required 2) IRREPARABLE HARM
RIGHT TO JURY TRIAL
7th Amendment At least 6 jurors unless stipulated • Unanimous verdict unless stipulated
Demand for a Jury
Made within 14 days after service of the last pleading
Action in Equity
No right for actions based in equity (injunction, etc.)
Law & Equity
Legal issue is tried by jury first • Equitable claim is settled by judge
Withdrawing a Demand
Demand may be withdrawn IF all parties consent
State Trials
No right to a jury in State trials • Number of jurors varies by State • Verdict does NOT need to be unanimous
Judge’s Role - No Jury
Acts as Finder of Fact • States Findings & Conclusions • Mini-trial to dispose of the case
Dismiss For Cause
Juror shows any bias/connection to case • No limit
Peremptory Challenge
Dismissal for any reason • Each party has 3 • CANNOT dismiss for race/gender
Balanced Pool of Jurors
Jury pool must be representative of overall community
Jury Instructions
Must object before jury retires • Or waived for appeal
Jury Deliberation
Allowed - Papers, Exhibits, & Notes • NOT Allowed: Anything not in evidence
Juror Conduct
Cannot conduct experiments or studies outside jury room • Cannot talk to non-jurors about trial • Misconduct/Possible New Trial
Prejudicial Information
New trial can be ordered for outside prejudicial information • Verdict will NOT be set aside for inside juror prejudice
New Trial for Post-Trial Bias
1) Juror failed to honestly answer a material question 2) A correct answer would have led to a valid challenge
12(b) Motion
Defendant is attacking the complaint
Lack of Subject Matter Jurisdiction
Can be raised ANYTIME
Waived if not included in Answer/12(b) Motion
Lack of Personal Jurisdiction • Improper Venue • Insufficient Service of Process
Failure to Join a Party
May be raised before or at trial
Failure to State a Claim
Even if the facts are true, there is no recovery • Insufficient facts • Dismissal with prejudice • May be raised before or at trial
Motion to Strike
Before responding to a pleading • Within 21 days of service • For redundant, immaterial, or scandalous material
Motion for a More Definitive Statement
Before responding to a pleading • Pleading is vague or ambiguous
Motion for Summary Judgment
No genuine dispute of material fact • Filed until 30 days after discovery close • Denial not appealable • Burden on moving party • Partial judgment allowed
Affidavits
Must be based on personal knowledge
Judgment as a Matter of Law - Directed Verdict͛
Raised by defendant after plaintiff’s case • Raised by either party at the close of evidence
JMOL Standard͛
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
Renewed Motion for Judgment as a Matter of Law͛
Must have filed a prior JMOL • Filed within 28 days after verdict • Judge may overturn verdict
Motion for Relief from Judgment
Clerical error, oversight, or mistake • Fraud or misconduct by the other party
Motion for a New Trial͛
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
Remittitur
New trial for excessive damages • Unless the party agrees to reduction of award
Additur͛
No Additur in Federal Court
Newly Discovered Evidence͛
1) Evidence was discovered after trial 2) Party was reasonably diligent in searching before/during trial 3) Evidence was material
Default Judgment
One party fails to plead or defend • Court enters default judgment
Voluntary Dismissal
Plaintiff voluntarily dismisses • Before Answer/Summary Judgment • First time without prejudice
Involuntary Dismissal
COURT dismisses the case
Involuntary Dismissal - Without Prejudice
1) Lack of Jurisdiction 2) Venue 3) Failure to Join Indispensable Party
Judicial appearance of bias
Parties can waive
Grounds for Recusal
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
Res Judicata/Claim Preclusion
1) Same parties or privity 2) Same transaction or occurrence 3) Judgment on the merits
Res Judicata - Merger
Plaintiff wins case • Claim merges into judgment • Cannot sue on same cause of action
Res Judicata - Bar
Plaintiff loses case • Barred from suing on same cause of action
Claim Splitting
Plaintiff cannot SPLIT a claim
Res Judicata does not apply to
1) Dismissal for lack of jurisdiction 2) Dismissal for improper venue 3) Settlement (unless after settlement, case is dismissed with prejudice)
Collateral Estoppel/Issue Preclusion
1) Same issue 2) Final judgment 3) Issue necessary to judgment
Collateral Estoppel does not apply
1) Settlement 2) Default Judgment
Defensive Use of Collateral Estoppel
Same Plaintiff, New Defendant • New Defendant can use Collateral Estoppel as defense
Offensive Use of Collateral Estoppel
New Plaintiff, Same Defendant • New Plaintiff cannot use Collateral Estoppel against Same Defendant
Applicable Preclusion Rule - Diversity Cases
First case in Federal Court, apply federal preclusion rule • First case in State Court, apply the first jurisdiction’s preclusion rule
FULL FAITH & CREDIT
One state must respect the other’s judgments
APPEALS
Notice of Appeal Filed within 30 days of judgment
Grounds for Appeal
1) Objections made at trial 2) Must state grounds 3) Waived if not preserved
Appellate CourtGenerally reviews
issues of LAW • Deference to trial court for FACTS
Appealing Errors
Outcome would have been DIFFERENT • No appeal if error was HARMLESS
Collateral Order Exception
1) Conclusively determines disputed question 2) Resolves important issue separate from merits 3) Delay would cause irreparable damage
Denial of Summary Judgment Appeal
Not appealable
Order for New Trial
Not appealable
Partial Final Judgment
Not preferred to avoid piecemeal appeals
Appealable
Grant/Denial Injunctions • Certification/Denial of Class Action
De Novo
Issues of Law
Abuse of Discretion
Court Errors • Relevancy • Prejudice • Admissibility
Clearly Erroneous
Issues of Fact
