Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

MBE ISA > CIV PRO MBE > Flashcards

CIV PRO MBE Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Subject Matter Jurisdiction

A

Court is trying to get jrds over case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What are the two types of SMJ Cases?

A

Diversity & Federal Question

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

SMJ - Diversity (2) Requirements

A

(1) Case must be over 75k

(2) Complete diversity of citizenship

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

SMJ Diversity 75k Rules

A

Can add in other claims against single defendant to get to 75k

Can add additional claims that aren’t up to 75k if first claim is 75k

Multiple P’s
- If one p has a claim over 75k the other p’s can get in too even if claims are lower

  • If none of you have claims up to 75k cannot combine to get in

Class actions
- As long as one member of the class has a clim over 75k then all other members can get in

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Complete Diversity of Citizenship

A

NO P AND D CAN RESIDE IN THE SAME STATE

Domiciled:
- where you are present + have an intent to stay

Foreign Country:
- Citizen state A vs foreign country - COUNTS AS DIVERSITY
- Two foreign citizens = NOT DIVERSITY

Corporation:
- Citizen of any state they are incorporated and/or PPB

Intentional joining:
- cannot join a party just to get diversity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Federal Question

A

P’s claim must be about a federal law/federal issue

Well-pleaded complaint Rule:
- Must be obvious that the issue is federal!!

If federal issue is a defense = no federal issue!!!!!

Federal question cases:
- IP, marintine, and admiralty

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Supplemental Jrds

A

Court adds case or parties to a current case that already has SMJ

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Where is Supplemental Jrds allowed?

A

New case or party

Federal Question:
- Derives from common nucleus affect
- Same t/o
-Came car accident, same thing

Diversity:
- Derives from common nucleus affect
- New case or party cannot destroy diversity of citizenship

TYPICALLY ONLY D IS THE ONE ADDING IN NOT THE P - COURT HAS DISCRETION

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Cases Allowed/ Not Allowed Supplemental Jrds

A

Allowed:
- Compulsory counterclaim
- Joinder in compulsory counterclaim
- Cross claim
- Impleader of 3rd party defendants

Not allowed:
- Original plaintiff v 3 party D
- Compulsory joinder
- Joinder of defendants
- Intervention

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Personal Jrds (PJ)

A

getting an individual in court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

How can you get PJ?

A

(1) Served with complaint while present in state
- if forced there -> doesn’t
count (fraud or diff lawsuit)
(2) Domiciled in State

(3) Consented to be sued there (long arm)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

PJ - Out of State Defendant (long arm statue)

A
  • Are there minimum contacts with the forum?
    - You visit multiple times a year,
    have family there, business
    relationships there
    - Does the person reasonably
    anticipate that they may litigate
    there?
  • Cannot violate DP

Corps: Minimum contacts
- Did the business purposely avail itself to the state?
- Are there activities systematic and continuous
- Reps, offices, sales people in
that state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

In Rem Jrds

A

Trying to get jrds over property or object

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Quasi In Rem Jrds

A

Going after property of someone to satisfy a judgment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Service of Process (where location)

A
  • Only in limits of state where district courts sit OR
  • Anywhere else that state law (long arm statue) allows

Exception:
- 100 mile bulge rule
- Out of state service is allowed
against out-of-staters anywhere
within 100 miles of courthouse
where suit is pending but ONLY
APPLIES TO 3P DEFENDANTS
OR INDISPENSABLE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Service of Process (how)

A

Personal Service
- handed directly to you
- someone over 18 who is a NON PARTY!!

At Home:
- Can leave complaint at house as long as it is left with someone of suitable age (someone likely to give it to you)

First Class Mail:
- Returns an acknowledgment or waiver form

Authorized Agent:

Whatever State law allows:

Out of Staters:
- Registered mail
- Newspaper if no other
reasonable way

Public Official:

Corporation:
- Officer or designated agent of company
- Anyone of high placement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Removal - DEFENDANT

A

ONLY D CAN REMOVE!!!!!

A case is in state court -> but wants to be removed to fed court
Exception:
-If it says its in a state agency or
other state entity -> can’t be
removed

Removal is ok if the case could have gone to federal court in the first place

All d’s have to be on notice of removal and agree

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Remand - PLAINTIFF

A

P tried to get the case back to state court b/c removal was improper

Must file to remand within 30 days of the removal notice

D has the burden to show that removal was proper

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Removal - Notice Of Removal

A

Must file notice w/the court within 30 days of getting served with original complaint

Diversity:
One year rule: cannot be removed if one year has passed since start of the lawsuit

D cannot remove to a state where he/she is a citizen

Multiple claims
If one claim is removable -> the entire case can be removed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Venue

A

(1) district where any D resides
(2) any district where substantial
parts of the event took place
IF THERE IS NO OTHER DISTRICT THAT IS PROPER:
(3) wherever one person is reachable (where you have PJ over DEFENDANT)

Corporation:
- Where the PPB is OR
- Any district in state they are incorporated

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Forum Non-Conveniens: Transferring Venue

A

If venue was proper in first place -> but someone wants case to be transferred to another district -> judge decides if it is convenient for the parties and in interest of justice

Law of original state will apply

If venue was not proper -> judge must dismiss case or if in the interest of justice -> may be transferred to any district where the case might have been originally brought

Not totally convenient -> both parties consent

Dismissal
If it is more convenient in another country -> case is dismissed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Complaint

A
  • Filed with court with a summons
  • Served to the other party
  • when SOL begins

Elements:
- Short and plain statement for jrd
- Summary of facts (not legal theory)
- Demand for relief (damages)
- The complaint needs more specifics if
- Fraud
- Special damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Answer

A
  • Signed by lawyer
  • Served within 21 days
  • Can deny or admit anything in the complaint
  • Whatever is not denied is admitted
  • Any affirmative defenses must be pleaded in the answer
    • Contributory neg
    • SOF
    • SOL
    • Illegality
    • Duress
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Amending Pleading

A
  • Can amend once as long as within 21 days of the original pleading
  • Need permission of court if not within 21 days
    Court allows if “justice so requires”
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Relate Back

A

Want the amended pleading to revert back to OG date

  • Changing a party
    Allowed if:
    - same conduct or t/o
    - Notice within 90 days to new
    party
    - The new party knew or should’ve known that they would be sued but for a mistake in party ID
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Rule 11

A

Lawyer is signing, submitting or filing a doc to the court

Promising that what they are submitting is true to best of their knowledge

Basically making sure lawyers aren’t submitting random shit
- Allegations warranted by existing law
- Evidentiary support
- No improper purpose

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Counter Claim

A

A sues B & B sues A back

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Compulsory counter claim

A

Same t/o
Court already has supplemental jrd

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Permissive Counter Claim

A

Not same t/o
Needs it’s own jrd

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Permissive Joinder

A

Multiple p’s can join together to sue someone
Come from same t/o
Question of law or fact is common

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Compulsory Joinder

A

Party must join b/c would be unfair to litigate without them

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Necessary Parties

A

Need to be joined b/c complete relief cannot occur
Leaving them out would impair their interest
If joining them destroys jrd = case may still PROCEED

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Indispensable Parties

A

If you don’t join them would prejudice them
If joined them and destroys jrd = case is DISMISSED

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Class Action Requirements

A

(1) size
- Must be so large that little claims would be impractical

(2) common question
- The issue must all of same law or fact

(3) typicality
- Claims have to be typical of the
other hundred thousands

(4) fair representation
- The reps have to be fair to all members

if request for a CA is denied -> can be appealed & others can move fwrd w/o you

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

3 Types of Class Actions

A

(1) B1
- If it is not a class action it would impair interest of members

(2) B2
- Injunctive relief

(3) Common Question (most popular)
- tort/injury

B1 & B2
MAY NOT OPT OUT
NO NOTICE REQUIRED (court discretion)

B3
MAY OPT OUT
NOTICE REQUIRED TO ALL MEMBERS
Mail is ok to reach out

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Diversity Class Action

A

Citizenship of representative that counts!!!!

Only one member has to have a claim over 75k -> everyone else can join in under the 75k

Exception: if cumulative claims is over 5 mill -> don’t need to meet the 75k

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

Intervension

A

Someone who is not part of the original suit -> wants to come in on their own

As of right:
- Do not need court permission if
have an interest in prop or.
transaction
- impair them if not included

Permissive:
- Common question of law or fact
- Court permission is required

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Impleader

A

D believes a 3P owes part or all of the claim
Ex: John sues Isa - Isa thinks someone owes money too
- Contribution
- Indemnification

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Two types of Interpleader

A

Statutory Interpleader
- Nationwide service of process is allowed (doesn’t matter where they live)
- Any two claimants can be diverse
- 500 or more
- Deposit money/prop with court

Rule Interpleader
- Complete diversity is required between all
- No nationwide service
- 75k requirement
- No need to deposit money in court

40
Q

Interpleader

A

1 party owes something to 2 or more ppl -> doesn’t know how much or who so can force the person to fight it out amongst themselves

41
Q

What can be discovered?

A

anything:
- Relevant
- Not privileged
- Proportional to the needs of the case

42
Q

Cross-Claim

A

Sue a co-party
ex: A sues B & C
Cross claim: B sues C

Cross-claims must arise from the same transaction or occurrence as the underlying action

43
Q

Work Product

A

generally not available to discover/immune

Unless:
- substantial need for
material and you can’t get
without undue hardship by
any other means

Absolute immunity
- Legal opinions
- Conclusions
- Mental impressions

44
Q

Discovery: Witnesses

A
  • Names and locations of all possible witnesses is all discoverable

Expert Witnesses
- The party must give other side the list of each expert who will testify
will prepare a report with:
- Compensation
- Name
- Info
- All information they will
testify over

Experts who will not be a witness:
- Only discoverable if there are exceptional circumstances

Any info that is wrong or incomplete - must supplement or fix it within a reasonable time

Methods
Don’t need court intervention -> done b/w the parties

45
Q

Deposition

A
  • Between party or non-party
  • Oral or written

Non-Party:
- Can force them to take depo via subpoena

Party:
- Make them take depo or can get them for sanctions

Limit on Depos:
- 10 depos per side - one per person
- Can’t depose someone twice w/o court permission

46
Q

Interrogatories

A
  • Written questions/statements
  • only to a PARTY!!
  • 25 per party
47
Q

Request to Produce Docs

A

Party can request production of documents in other sides possession control or custody
- Papers
- photographs

48
Q

Physical or Mental Exam

A

Want other party to submit to a physical or mental exam
- Must be an issue in case
- Court order
- Good cause

49
Q

Sanctions for Failure to Comply with Discovery

A

Sanctions (least to greatest)
- fees/costs for time from
other side
- Facts to be established
- Dismiss an action
- Hold you in contempt

All discovery is admissible at trial!!!!!

50
Q

Pre-Trial Conference/Orders (3)

A

(1) Conference of the parties (MUST)
- Parties must meet to talk about the case, settlement, and talk about discovery plan (submit to court)

(2) Scheduling Conference (MUST)
- Must have conference to limit time
- Must issue scheduling
order within 90 days of
filing complaint

(3) Final Pre-Trial Conference (MAY)
- Judge may have one
If they have one -> must
- issue pre-trial order
- Only modified to
prevent manifest
injustice

51
Q

Temporary Restraining Order

A
  • Can be granted without notice to the other party
  • Trying to prevent immediate irreparable harm
  • Expires at time stated in order but cannot be longer than 14 days
  • If you wan’t them to be longer -> need to show GOOD CAUSE or get a preliminary injunction
  • MUST INCLUDE IN DETAIL THE ACTS RESTRAINED
52
Q

Preliminary Injunction

A
  • Need to give notice + hearing to restraining party
  • Irreparable injury will occur
    Likely to succeed on merits of case
  • Harm to moving party outweighs the other party
  • is longer than 14 days
53
Q

Jury Trials

A
  • Needs to be at least 6 but no more than 12
  • Parties can agree to less people
  • Verdict must be unanimous -> Unless parties agree otherwise
  • Demand must be made within 14 days of the last pleading
  • If there is a case with legal and equitable remedies
    - You try to legal issues
    first with the jury
    - Then the equitable
    claims with the
    court/judge
54
Q

Withdraw of Jury Trial

A

If all parties consent -> can withdraw

If there is no right to a JT or the parties waive -> the judge can decide the case:
- Will act as fact finder
- States findings and
conclusions
- Mini trial to dispose of
case

55
Q

Jury Selection - Dismiss Juror (2)

A

2 ways to dismiss a juror
(1) For Cause:
- There is a reason
- Any bias or connection
to the case -> must be
dismissed
NO LIMITS TO HOW MANY PPL CAN GET DISMISSED

(2) Preemptory Challenge (without cause)
- Can excuse for ANY reason
ex: “I don’t like the guy i
don’t want him on the
case”
- Each party has THREE challenges
- Cannot be excluded based on race and/or gender

Balanced Pool:
- Jury has to represent the overall community

56
Q

Jury Instructions

A
  • Judge will give instructions
    If party wants to object to instructions -> must do it before jury goes into deliberate or retirees -> if not they loose it on appeal
57
Q

Jury Deliberations

A

Allowed: papers, exhibits and notes
Not allowed: anything that was not in evidence

58
Q

Juror Rules

A
  • Not allowed to make experiments or private study of docs outside the jury room
  • Cannot talk to non-juror about the trial
    - If they do -> could
    cause for misconduct
    and possibly a new trial
  • Outside information coming into the jury could
    call for a new trial
    Prejudicial information
  • It doesn’t matter if an own juror had misconduct it only matters if its from an outside 3P
59
Q

Post Trial Bias

A

If a juror during jury selection failed to disclose a bias or a material question and the correct answer would have led to a challenge -> new trial could be ordered

60
Q

Motion: 12B

A

can be raised ANYTIME
- Lack of SMJ

Must be raised in answer or other 12b motion or it is waived!
- Lack of PJ
- Improper Venue
- Insufficient service of
process

61
Q

Failure to Join a party

A

May be raised before or at trial - doesn’t have to be raised in the 12b answer

62
Q

Motion to Dismiss for failure to state a claim

A

Even if every fact is true -> nothing happened/ no real recovery

  • Insufficient facts
  • May be raised before or at
    trial

Dismissal: with prejudice unless court says otherwise

63
Q

Motion to Strike

A
  • Before responding to a pleading
  • Within 21 days of service
  • For redundant, immaterial or scandalous material (don’t need it)
64
Q

Motion for More definitive statement

A
  • Vague or ambiguous
  • Clean up some of the ambiguity + be more specific in your pleading
65
Q

Summary Judgement

A
  • No general dispute of material fact and
    Moving party is entitled to judgment as a matter of law
    I.e., no reasonable person could find for non-moving party
  • Can make it until 30 days after discovery
  • If denied -> cannot be appealed
  • Moving party can use discovery, affidavit, depos and holds the burden to show
  • There can be a partial summary jdm
66
Q

Directed Verdict (JMOL)

A
  • D can make a motion after p’s case or either party after both sides rest
  • there is no legal significant basis for a jury to reach a diff conclusion
  • A reasonable jury would not have enough evidence to find for a party
67
Q

Renewed JMOL (RJMOL)

A
  • Have to have made a JMOL to have a RJMOL
  • Make a JMOL before the case goes to jury -> then case goes to jury
  • After case goes to jury and within 28 days of verdict -> make a RJMOL
  • If judge thinks a reasonable jury would not choose this -> can overturn the verdict
68
Q

Motion For Relief From Judgment

A

Error clerical, fraud, oversight, misconduct - can be relieved from it

1 year deadline

69
Q

What are potential errors upon which a party may base a motion for a new trial?

A

(1) Prejudicial error — serious error that makes judgment unfair
E.g., judge misstates law, gives wrong jury instructions

(2) Prejudicial misconduct — of a party, attorney, juror, etc.
E.g., jury considers evidence excluded at trial

(3) Judgment against weight of evidence — jury erred in reaching verdict given the evidence before it

(4) Newly discovered evidence

(5) Excessive or inadequate damages — court cannot increase jury award (violates 7th Amend.); judge can order a new trial or offer remittitur if convinced the award is too high

70
Q

Remittitur

A
  • New trial for excessive damages
  • Unless party agrees to reduction of award
  • If don’t agree to it -> order new trial
71
Q

Additur

A
  • Adding more money
    Not in federal court
72
Q

New Evidence is Discovered

A
  • Evidence was discovered after the end of the trial
  • Party was diligent when searching and could not find it
  • Evidence was material
73
Q

Default judgement:

A

Entered when one party fails to plead or defend
- Don’t show up or don’t
reply “give up”

74
Q

Voluntary Dismissal

A

P voluntarily dismisses the case if:
- Before D serves answer
or moves for summary
judgment
WITHOUT PREJUDICE
Ones after that -> need court approval

75
Q

Involuntary Dismissal

A

Dismissed by court order if:
- Failure to state a claim
- Failure to follow a court
order
- Failure to prosecute Usually with prejudice*

Except:
- Lack of PJ
- Venue
- Failure to join indispensable party

76
Q

Judicial Bias

A

Judgement for Cause:
- If you think the judge
may be committing bias or an “appearance of bias” even if the judge thinks they can be fair -> parties can make motion to get him out
- can also be waived by both parties

Specific Grounds:
Must be removed if:
- Judge has personal knowledge of facts
- Judge acted as a lawyer with a lawyer who is on the case (conflict of interest)
- Judge gave his opinion ab merits of case while acting as a judge
- judge or immediate family has a financial interest in the outcome of case
- Violation of due process of one of the parties

77
Q

Res Judicata = Claim Preclusion

A

(1) Same two parties litigating again
Or anyone in privity
(Employer v employee
Buyer v seller)

(2) same t/o

(3) There was a judgment on the merits
Does not apply to if case is dismissed for:
- Lack of jrd
- Improper venue
- Settlement

Even if law changes and now a loss means you can win -> still cannot bring the suit again

78
Q

Collateral Estoppel = Issue Preclusion

A

(1) Issue must be actually litigated & decided
does not apply if:
- settlement
- default judgment

(2) Issue must be necessary to the judgment

(3) typically three ppl involved (new P or new D)

79
Q

Collateral Estoppel = Issue Preclusion 3 EXAMPLES

A

(1) Isa sues robby - isa loses now nat wants to sue robby -> ok
NEW PERSON IS ALLOWED TO SUE B/C OF DUE PROCESS
Same D’s - Diff P’s

(2) Defensive use
(1) Isa V robby - isa loses
(2) Isa v Mik
Not allowed!! Mik can stop isa from suing
Same P -> Diff D

(3) Offensive use
Isa v Robby (ISA WINS)
Nat v Robby
Not allowed! Nat cannot use isa winning to her benefit

80
Q

Full Faith and Credit

A

One state must respect the other states judgments

81
Q

Notice of Appeal

A

Filed within 30 days of judgment

82
Q

Objections at Trial

A

Must make objections at trial b/c if you don’t they are waived
Putting court on notice to set up appeal later

83
Q

Appellate Court

A

Appellate Court: Reviews issues of laws

Trial court: reviews facts

84
Q

When can you appeal an error?

A

When the outcome would have been different
No appeal if was harmless error

85
Q

When can you appeal a case?

A

when there is a final judgment

Not considered a FJ:
- Interlocutory order
- Order given before trial judmt

86
Q

FJ v Not FJ

A

Not a FJ:
- Lack of JRD
- Improper Venue
- Failure to Join an
indispensable party
- Suit with multiple claims (one is decided) - unless “no reason for delay”
- Denial of summary
judgment
- New trial
- Partial final judgment

Considered a FJ:
- Injunctions
- Certification of class action

87
Q

Collateral Order

A

can be appealed
(1) order determined the disputed question
(2) resolves an issue that
is totally separate from
main issue
(3) delay would cause
irreparable damage

88
Q

Standards of Review

A

DeNovo
- Issues of law

Abuse of Discretion
- Court mistake,
relevance, admitting
something wrong

Clearly Erroneous
- Issue of facts

89
Q

Erie Doctrine

A
  • Choice of law
  • ONLY IN DIVERSITY CASES!!!!

Examples:

(1) Federal law v state law:
Apply substantive state
law; unless the issue is
procedural then you
apply federal law (FRCP
or other fed rules) for ex:
VENUE
- SOL IS STATE LAW

(2) State A v State B:
Apply the law of the state
where the court is sitting or
being heard

90
Q

14 Days (3)

A
  • TRO
  • Demand for Jury Trial
  • Impleader
91
Q

21 Days (5)

A
  • time to answer the complaint or 12b response
  • amend or supplementing a pleading
  • responding to a counterclaim
  • Rule 11 Safe Harbor
  • motion to strike
92
Q

28 Days (2)

A
  • file RJMOL
  • new trial
93
Q

30 Days (5)

A
  • notice of removal and remand
  • return request for waiver of SOP
  • appeals
  • request for admission
  • summary judgment motion
94
Q

60 Days (1)

A
  • answer complaint or 12b motion if D waived SOP
95
Q

90 Days (3)

A
  • serve process after filing complaint
  • relate back
  • scheduling conference
96
Q

1 Year (2)

A
  • remove in a diversity case
  • motion for relief from jdmt

MBE ISA (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions