CIV PRO MBE RULES BASELINE

Question 1

Diversity Jurisdiction
For purposes of diversity jurisdiction, when can the value of a single Pl’s claims against each of multiple defendants be aggregated or not?

Answer 1

For purposes of diversity jurisdiction, the value of a single PL’s claims against each of multiple defendants cannot be aggregated if the claims are separate and distinct and the Ds were not jointly liable with respect to the claims.

If you can’t aggregate the claims, then each would have to independently meet the amount in controversy requirement , i.e. exceed $75,000.

Question 2

Summary judgment motion
When will the court grant a summary judgment or a partial summary judgment in a case?

Answer 2

The court will grant a summary judgment or a partial summary judgment in a case , where the movant does not show there is a genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

If a movant goes forward –he presents evidence to make his argument that he asserts warrants a summary judgment. If the evidence is uncontradicted by the opposing party, then the fact that the movant asserts is sufficient to entitle the moving party to a judgment as a matter of law.

Burden shifts to the opposing party to present evidence that would dispute this fact. The party opposing a motion for summary judgment may not rely merely on allegations or denials in his own pleadings, but must either set out specific facts showing a genuine dispute for trial or show by affidavit or declaration that, for specified reasons, he cannot present facts essential to oppose the motion.

Alluding to a statement made in a pleading does not constitute evidence. Opposing party must offer evidence to dispute what the movant has put forward.

Question 3

Subject Matter Jurisdiction
When is a party permitted to raise the issue of lack of subject matter jurisdiction?

Answer 3

The defense of lack of subject matter jurisdiction may be raised at any time, even on appeal

Question 4

Diversity Jurisdiction
When is the issue of diversity jurisdiction determined in a federal case?

Answer 4

Diversity is determined at the time the case is filed. There is no requirement that diversity exist at the time the cause of action arose. A change in citizenship or amount-in-controversy after the filing of the case will not affect diversity jurisdiction that was in existence at the time of the filing.

Question 5

Subject Matter Jurisdiction; Supplemental Jurisdiction

When is the court permitted to exercise supplemental jurisdiction over one of the parties’ counterclaims?

Answer 5

The court can exercise supplemental jurisdiction over a party’s counterclaim if it arises from the same case or controversy as the Pl’s claim. If it doesn’t meet this requirement, then the federal court would not have jurisdiction over the claim.

If the party’s counterclaim does not meet the two prongs for diversity: citizens from different states and amount in controversy exceeds $75k, then that would fail.

Unrelated claims - could be tried separately but the federal court would still have to have proper jurisdiction- Federal Q , diversity jurisdiction, something.

Question 6

Joinder of Claims (Impleaders) Multiple Parties and Claims

Is a party required to bring a contribution action against another party when he believes this third party will be liable to him for contribution for part of the liability?

Answer 6

Under Rule 14(a)(1): A D alleging that a third person is liable to him for all or part of the Pl’s claim against him may implead such a person as a third-party D. But such joinder is permissive and not compulsory.

Even though the claim arises out of the same facts/occurrence as the Pl’s claim against the D, a claim for impleader is not subject to compulsory joinder.

Question 7

Venue

In a federal suit, where is venue proper?

Answer 7

Venue is proper in the judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred.

When a state has more than one federal judicial district, venue is generally determined by the judicial district, rather than the state in which the D resides.

The residence of a PL is generally not relevant for venue purposes.

Question 8

Personal Jurisdiction - Procedural

Explain when one of the parties must assert a defense of lack of personal jurisdiction - in federal courts?

Answer 8

The defense of lack of personal jurisdiction is waived if it is omitted from the first pre-answer motion made by the party.

Question 9

Pleadings and Motions Against the Complaint
When must the defense of lack of personal jurisdiction be raised?

Answer 9

The defense of lack of personal jurisdiction must be raised in a pre-answer motion or, if no -re-answer motion is made, in the answer, or the defense will be waived.

A motion to dismiss for lack of personal jurisdiction cannot be made at any time.

Question 10

Removal - Home rule

When can a claim be removed when solely based on diversity jurisdiction?

Answer 10

If removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no D is a citizen of the state in which the action was filed.

Question 11

Personal jurisdiction; Long arm statute
When is a party warranted to make an assertion of in personam jurisdiction?

Answer 11

To warrant an assertion of in personam jurisdiction, a D’s contacts with the forum state must be purposeful and substantial, such that the D should reasonably anticipate (foresee) being taken to court here.

Foreseeability depends on whether a D recognizes or anticipates that by running his business there, he runs the risk of being party to a suit in a particular state.

Specific jurisdiction: A court has specific jurisdiction over a D when a cause of action arises out of or closely relates to a D’s contact with the forum state, even if that contact is the only contact with the forum state.

Question 12

Federal Question Jurisdiction

How does the federal question subject matter jurisdiction arise?

Answer 12

Under the well-pleaded complaint rule, federal question subject matter jurisdiction exists only when the federal law issue is presented in the Pl’s complaint.

It is not sufficient that a D’s counterclaim, even a compulsory counterclaim, arises from federal law.

**Diversity of citizenship is not required when subject-matter jurisdiction is based on a federal question.
There is no amount-in-controversy requirement when subject matter jurisdiction is based on a federal question.

Question 13

Subject Matter Jurisdiction

Can subject matter jurisdiction be waived or agreed upon by the parties, like personal jurisdiction?

Answer 13

Subject matter jurisdiction cannot be waived or agreed to by the parties, unlike persona jurisdiction.

Domestic relations are generally excluded from diversity jurisdiction, –so court would not have subject matter jurisdiction over these matters.

The parties cannot agree to subject matter jurisdiction ; any attempted waiver would be ineffective.

Question 14

Subject Matter Jurisdiction
Diversity Jurisdiction

What are the rules for subject matter jurisdiction based on diversity to exist?

Answer 14

In order for subject-matter jurisdiction based on diversity to exist, the amount in controversy must exceed $75,000 and the PL and D must be citizens of different states.

When there is only on PL and one D, all of the PL’s claims against the D, including unrelated claims, are aggregated for purposes of determining whether the amount-in-controversy requirement has been satisfied.

Question 15

Subject Matter Jurisdiction
Federal Question Jurisdiction

When can a federal court exercise federal question jurisdiction when a state law creates a cause of action?

Answer 15

A federal court can exercise general federal-question jurisdiction if the complaint raises a real and substantial issue of federal law and the outcome necessarily depends on resolving the federal issue.

Question 16

CIVIL PROCEDURE MBES: MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

WHAT CAN THE COURT CONSIDER WHEN RULING ON A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM?

Answer 16

A motion to dismiss for failure to state a claim is a request that the court dismiss the suit because the nonmovant’s complaint fails to assert a legally cognizable claim OR fails to allege facts that sufficiently support the claim. The court’s consideration of this motion is limited to the contents of the pleadings (including attached exhibits) and matters of public record.* The court also must:

treat all well-pleaded facts in the complaint as true and
view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant.

Question 17

CIVIL PROCEDURE MBES: STANDARD OF REVIEW ON ERROR ALLEGED

WHAT IS THE STANDARD OF REVIEW ON APPEAL FOR A COURT’S DISCRETIONARY RULINGS/

WHAT ARE SOME ARE SOME AREAS THAT WOULD BE CONSIDERED DISCRETIONARY BY THE APPEALS COURT?

Answer 17

A party can challenge a final judgment on appeal by alleging that the trial court erred. The standard of review used by the appellate court depends on the error alleged. A trial court’s discretionary rulings are reviewed for abuse of discretion. Under this highly deferential standard, the trial court’s ruling will be reversed only if it was clearly arbitrary or unreasonable. That is because the trial court is best suited to understand the circumstances surrounding the discretionary ruling.

Discretionary matters, admissibilit of evidence, sanctions for violation of discovery rules, gnranting or denial of a montion to transfer venue or to sever actions.

Question 18

CIVIL PROCEDURE - REMAND AFTER REMOVAL TO FED CT

WHEN CAN A PARTY SEEK TO RETURN A CASE TO STATE COURT WHEN IT HAS BEEN REMOVED TO FEDERAL COURT?

Answer 18

A party (usually the plaintiff) can seek to return the case to state court by filing a motion to remand. **One basis for remand is the home-court-advantage rule (i.e., forum-defendant rule). * **This rule prohibits removal when (1) subject-matter jurisdiction arises from diversity jurisdiction and (2) a defendant is a citizen of the state where the case was filed.

Question 19

CIVIL PROCEDURE - JUDGMENT AS A MATTER OF LAW

HOW MUST A COURT DECIDE ON A PARTY’S MOTION FOR A JUDGMENT AS A MATTER OF LAW?

Answer 19

When considering a motion for JMOL, the court must (1) view the evidence and draw all reasonable inferences in favor of the nonmovant, (2) disregard any evidence favorable to the movant that the jury need not believe, and (3) not consider the credibility of witnesses or the weight of evidence.

Question 20

CIVIL PROCEDURE - CHALLENGE OF A FINAL JUDGMENT ON APPEAL

WHAT IS THE STANDARD OF REVIEW ON APPEAL FOR A TRIAL COURT’S DISCRETIONARY RULINGS?

Answer 20

A party can challenge a final judgment on appeal by alleging that the trial court erred. The standard of review used by the appellate court depends on the error alleged. A trial court’s discretionary rulings are reviewed for abuse of discretion. Under this highly deferential standard, the trial court’s ruling will be reversed only if it was clearly arbitrary or unreasonable. That is because the trial court is best suited to understand the circumstances surrounding the discretionary ruling.

Question 21

CIVIL PROCEDURE: DEPOSITIONS AND TIMING

WHAT IS THE TIMING RULE FOR WHEN A PARTY CAN CONDUCT A DEPOSITION OF A WITNESS? WHEN IS THE EARLIEST THAT THIS CAN BE DONE?

Answer 21

Leave of court for oral or written deposition

Court’s leave* or parties’ stipulation required to conduct deposition when:

deposition exceeds 10-deposition limit
**deposition sought before parties’ initial planning conference **or
deponent already deposed in action
*Leave of court is always required when deponent is in prison.

Question 22

CIVIL PROCEDURE MBES: FINAL JUDGMENT RULE

WHAT DOES THE FINAL JUDGMENT RULE STATE? HOW DOES IT RELATE TO INTERLOCUTORY APPEALS?

Answer 22

The final-judgment rule bars federal appellate courts from hearing an appeal until the federal district court has entered a final judgment. A final judgment is a judicial decision that fully resolves the dispute on the merits and leaves nothing for the court to do but enforce the judgment. Here, the court’s order granting the newspaper publisher’s motion for a new trial is not a final judgment since the jury’s verdict will be set aside and the merits of the plaintiff’s defamation claim will be decided in a new trial.

However, the interlocutory appeals statute (28 U.S.C. § 1292) provides some exceptions to the final-judgment rule that allow an immediate appeal of certain orders (see image above).

Question 23

CIVIL PROCEDURE MBES: COMPULSORY COUNTERCLAIMS

WHEN DOES A DEFENDANT’S COUNTER CLAIM BECOME A COMPULSORY COUNTERCLAIM? WHAT ARE THE RULES FOR FAILURE TO FILE A COMPULSORY COUNTERCLAIM?

Answer 23

If a defendant has a claim against the plaintiff, then the defendant may state it as a counterclaim in the answer to the complaint. However, a counterclaim is compulsory and must be asserted in the defendant’s answer if it:

arises from the same transaction or occurrence as the plaintiff’s claim(s) and

does not require adding parties over whom the court cannot acquire jurisdiction.

Failure to do so generally results in the counterclaim being waived and barred from being raised in subsequent lawsuits. But when an action is dismissed before a defendant’s answer is filed, any counterclaims that would have been compulsory in an answer are not waived. That is because the defendant never had the opportunity to raise, and therefore could not waive, those counterclaims.

Question 24

CIVIL PROCEDURE MBES: AMENDED PLEADINGS

WHAT IS THE TIME FRAME IN WHICH THE RESPONDING PARTY MUST RESPOND TO AN AMENDED PLEADING?

Answer 24

Unless the court orders otherwise, a responding party generally must respond to an amended pleading within (1) the time that remains to respond to the original pleading or (2) 14 days after service of the amended pleading—whichever occurs later.

Question 25

CIVIL PROCEDURE MBES: CHALLENGE OF JURY INSTRUCTION

HOW DOES A PARTY GO ABOUT CHALLENGING A JURY INSTRUCTION THAT HE CONTENDS IS INCORRECT?

Answer 25

To challenge a jury instruction on appeal, a party must preserve the issue at trial by timely objecting to the instruction on the record and stating the grounds for the objection. An objection is timely if it is made promptly after learning that a jury instruction has been or will be given OR that a request for a jury instruction has been refused.

Question 26

CIVIL PROCEDURE MBES: CORRECTION OF CLERICAL ERROR IN A JUDGMENT

CAN A DISTRICT COURT CORRECT A CLERICAL ERROR OR MISTAKE IN A JUDGMENT? WHAT ARE THE PROCEDURES?

Answer 26

A district court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record. The court may do so on its own initiative (i.e., sua sponte) or pursuant to a party’s motion before an appeal from the judgment or order is docketed. But after an appeal is docketed, the district court can correct the mistake only with the appellate court’s leave (i.e., permission).

Question 27

CIVIL PROCEDURE MBES: RELIEF FROM JUDGMENT

WHEN CAN A PARTY SEEK EXTRAORDINARY RELIEF FROM A DISTRICT COURT’S FINAL JUDGMENT? WHAT ARE THE TIMEFRAMES?

Answer 27

A party can seek extraordinary relief from a district court’s final judgment in limited circumstances (see table above). This motion for relief may generally be made within a reasonable time, but it must be made within one year from the entry of the final judgment when the motion asserts any of the following grounds for relief:

The judgment was due to mistake, inadvertence, surprise, or excusable neglect by the nonmovant or the court.

The movant has discovered new evidence that could not have been discovered with reasonable diligence in time to move for a new trial—i.e., within 28 days of the final judgment.

The nonmovant engaged in misrepresentation, misconduct, or fraud.

Question 28

CIVIL PROCEDURE MBES: ERIE DOCTRINE

UNDER THE ERIE DOCTRINE, WHEN DOES STATE LAW APPLY, EVEN WHEN THE POINT IN QUESTION LOOKS PROCEDURAL?

Answer 28

Under Erie, state law applies if (1) it is outcome determinative—i.e., forum-shopping or inequitable administration of the laws would result if it is not applied—and (2) there is no countervailing federal policy interest.