Civil Procedure

Question 1

Subject Matter Jurisdiction {SMJ)

Answer 1

Federal courts are courts of limited jurisdiction and can only hear cases where it has SMJ. SMJ exists if there is a federal question, if there is diversity of citizenship, or in the case of supplemental jurisdiction.

Question 2

CA Subject Matter Jurisdiction

Answer 2

California divides SMJ into three defined categories:
- Unlimited Civil Cases
- Limited Civil Cases
- Small Claims Cases

Question 3

CA SMJ Unlimited Civil Cases

Answer 3

Requires greater than $35K amount in controversy and includes the full range of motions and remedies.

Question 4

CA SMJ Limited Civil Cases

Answer 4

Requires less than or equal to $35K amount in controversy and limited to claims requiring monetary remedies.

Question 5

CA SMJ Small Claims Cases

Answer 5

Requires a claim less than or equal to $12.SK, or $SK if a business entity, no attorneys allowed, pro se only.

Question 6

Federal Question

Answer 6

A federal question arises under federal law, the U.S. Constitution or United States treaties. Raising a federal defense is not sufficient.

Question 7

Diversity Jurisdiction

Answer 7

Diversity jurisdiction exists when there is complete diversity of citizenship between litigants and the amount in controversy is greater than $75,000.

Question 8

Citizenship

Answer 8

Citizenship for a person depends upon their domicile. A domicile is where a person resides, with intent to make the state their permanent home of record. (College students? They may leave the state for college, but if they intend to return home they have not changed their domicile). Corporations may have two states of citizenship, determined by the corporate Principal Place of Business or the state in which incorporated.

Question 9

Amount in controversy (AIC)

Answer 9

In federal courts, the AIC must be greater than $75k, and alleged in good faith. A plaintiff can aggregate claims to get to $755k I making multiple claims against one defendant.

Question 10

Good Faith Claims

Answer 10

A claim must be made in good faith, and, in the case of fraud, must Include specificity regarding the details of the case. A claim that concludes in a trial where less than the required AIC is awarded does not invalidate the claim, as long as an AIC greater than $75K was pled in good faith.

Question 11

Supplemental Jurisdiction (SJX)

Answer 11

A federal court with SMJ may exercise SJX over state claims when they arise from a common nucleus of operative fact. A federal court may decline SJX over state claims when the claim raises a novel or complex issue of State law, it substantially predominates over the original federal claim or if the court has dismissed the claim which had original jurisdiction. (Look for the situation where SMJ is invalid, if so, the court will not be able to exercise SJX either).

Question 12

Removal to Federal Court

Answer 12

Only a defendant may remove a case to federal court. This requires that the federal court has SMJ, no defendant is domiciled in the forum state, and removal is sought within 30 days. (A plaintiff may never remove a case to federal court - they authored their complaint, and chose to bring the case in the forum they selected).

Question 13

Remand to State Court

Answer 13

A remand occurs when a case is sent from Federal Court to State Court. This typically occurs when there is invalid SMJ. A federal court may remand a case that originally had SMJ, at the court’s discretion, once the federal claims have been decided.

Question 14

State v Federal Jurisdiction

Answer 14

State courts can try federal question cases, as long as there is no implied restriction by Congress. States may not discriminate because a case is based strictly on Federal law.

Question 15

In Personam Jurisdiction (IPJ)

Answer 15

IP J is required for a court to exercise judgment, and normally falls into two categories - the traditional bases of jurisdiction and the modern bases of jurisdiction.

Question 16

Foreign Corporation IPJ

Answer 16

Requires the foreign corporation be “at home” in the orum state through continuous and systematic contacts. In 2023, the US Supreme Court ruled in Mallory v. Norfolk Southern that registering to do business in a state suffices for consent to jurisdiction.

Question 17

Traditional Bases of Jurisdiction

Answer 17

The traditional bases of jurisdiction include domicile, presence when served, consent and waiver.

Question 18

Modern Bases of Jurisdiction

Answer 18

The modern bases of jurisdiction are the Long Arm Statute and Constitutionality.

Question 19

Long Arm Statute

Answer 19

Many states have adopted long-arm statutes which allow personal jurisdiction over non-residents. While long-arm statutes can differ by state, jurisdiction under a long-arm statute must satisfy the constitutional requirements for the exercise of jurisdiction. Many states like California, have adopted long-arm statutes which extend personal jurisdiction to the limit of the Constitution. (If you don’t have a traditional bases or a Long Arm Statute, you can’t exercise jurisdiction out of state so, expect you’ll have a Long Arm Statute).

Question 20

Constitutionality of PJ

Answer 20

To satisfy the Constitutional requirements for personal jurisdiction, the defendant must have such minimum contacts with the forum state as to not offend traditional notions of fair play and substantial justice. In determining whether such minimum contacts are present, courts look to three things - the extent of contacts, their relatedness to cause of action, and whether the exercise of jurisdiction would be fair.

Question 21

Contacts for PJ

Answer 21

In determining minimum contacts, the court looks at whether the defendant purposefully availed himself of the forum state, and whether the exercise of jurisdiction by the forum state would be foreseeable.

Question 22

Purposeful Contact

Answer 22

The contacts were purposeful if the defendant availed themselves of the benefits and protections of the forum state’s laws. (Knowledge that your product is being sold in another state is not enough, you need to advertise, send goods, activate a two-way website, etc. Also – if you drive on another state’s roads, you purposely availed yourself of the protections of their traffic laws)

Question 23

Foreseeable

Answer 23

The contacts were foreseeable if the defendant could foresee being haled into court based on contacts in the forum state.

Question 24

Relatedness

Answer 24

The relatedness of a contact to the controversy determines if the court will exert General or Special Jurisdiction.

Question 25

General Jurisdiction

Answer 25

Exists if contacts are so systematic and continuous that the defendant is essentially at home in the forum state.

Question 26

Speciic Jurisdiction

Answer 26

Exists if general jurisdiction does not exist, the court looks to see whether contacts relate to or give rise to the cause of action.

Question 27

Fair Plav and Substantial Justice

Answer 27

Requires courts to consider the burden on the defendant, the state’s interest, plaintiff’s relief interest, interstate judicial system's interest in efficiency and shared social policy interests. (The Burger King Factors, you'll need to do some tap dancing here). rger

Question 28

Judgment on the Pleadings

Answer 28

Can be motioned for when material facts are not in dispute and the pleadings reveal merit of the claim for either party. Filed only after an answer has been filed and pleadings are closed.

Question 29

Venue

Answer 29

Venue is proper in any district where any defendant is a resident where a substantial portion of the claim occurred, or where a substantial part of property is located. Otherwise, venue is proper in any judicial district where any defendant is subject to personal jurisdiction. Venue may be transferred for party convenience or in the interests of justice, if the action could have been brought in the receiving court. In CA, if the suit is considered a local action (involves real property) then the venue will be set in the same county as the real property. Otherwise, the venue will be considered a transitory action, and venue will be considered proper in the county where any defendant resides.

Question 30

Forum Non Conveniens

Answer 30

Allows a court to decline jurisdiction and dismiss an action if the court where the action was brought would be a seriously inconvenient forum and an adequate alternative forum exists in a foreign country.

Question 31

Service

Answer 31

Must be made within 90 days, but upon showing of good cause, the court must exten an additional appropriate period. Requires summons and complaint. Failure to serve in time results in a dismissal without prejudice.

Question 32

Service of Process

Answer 32

Process may be served by anyone 18 years of age or older who is not a party to the case. The federal methods of service upon individuals are deliver to the defendant personally, leave at defendants dwelling with someone of suitable age and discretion who resides there, or deliver to the defendant's agent. If the defendant has waived the right to personal service, process can be served by sending a copy of the summons and complaint by first-class mail.

Question 33

Service Upon Corporations

Answer 33

Process may be served upon corporations by hand delivery to an officer or designated agent of the corporation. Otherwise, process may be served by any method authorized by state law in the state where the action is pending or in the state where service occurs.

Question 34

Service Upon Foreign Corporations

Answer 34

Service upon a foreign corporation can be made by any means proper in the home country. In CA, service upon a foreign corporation can also be made to the local subsidiary general manager of a foreign parent corporation. (So long as that local subsidiary is not a party to the suit).

Question 35

Waiver of Service

Answer 35

Provides a defendant additional time to respond to the complaint. The defendant must be mailed two copies of the summons and complaint and a request to waive form, along with a pre-paid, addressed return envelope. This waiver must be returned within 30 days in the continental United States, or 60 outside the U.S., then the person served need not reply to the complaint until 60 days after service, or 90 outside the U.S. In CA, waiver of process does not allow additional time to answer.

Question 36

Answering

Answer 36

A pleading must be answered within 21 days of receipt of service. In CA, pleadings must be answered within 30 days.

Question 37

12(b)(6) Motions

Answer 37

These motions subject the movant to the Personal jurisdiction of the court, however are an attempt to have the case dismissed due to: 1) Lack of Subject Matter Jurisdiction; 2) Lack of Personal Jurisdiction, 3) Improper Venue; 4) Insufficient Process; S) Insufficient Service of Process; 6) Failure to State a Claim for Which Relief Can be Granted; and 7) Failure to Join a Required Party per Rule 19.

Question 38

Demurrers

Answer 38

In CA, a demurrer functions similar to a 12(b)(6) motion in Federal court, whereas a Motion to Quash is used to claim a lack of Personal Jurisdiction, Insufficient Process, or Insufficient Service of Process. A General Demurrer is used to claim a failure to state a claim for which relief can be granted, and a Special Demurrer for other technical reasons.

Question 39

Scope of Discovery

Answer 39

Discovery shall include all information relevant to any party's case that is not privileged. This discovery must be proportional to the needs of the case, i.e., the cost of compiling the discovery cannot greatly exceed that of the original claim. In CA, a· party may obtain discovery of all non-privileged information that is relevant to the subject matter of the case. (Regarding what information is privileged, consider work product, strategies, and mental observations, which typically are not shared).

Question 40

Motion to Compel Discovery

Answer 40

A party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

Question 41

Discovery Initial Disclosures

Answer 41

A party to a case must, without awaiting a discovery request, provide other parties with 1) the name, and if known the address and telephone number of each person that may have discoverable information; 2) a copy of or description of all documents, electronic media or tangible things within that party's control that can support their claims; 3) a computation of damages; and 4) any insurance policies that could potentially satisfy a judgment.

Question 42

Physical or Mental Exams

Answer 42

When a person's physical or mental condition is in controversy, a physical or mental exam of the person may be requested. Physical and mental examination are the only discovery tools for which advanced court approval is required. The court requires a showing of "good cause” for the examination. (Think about it - if the parties are involved in a minor fender bender, a party that’s suing for 1 million in pain and suffering should rightfully be subjected to a physical exam. Their counsel should also get sent out for a mental exam ... And, it would be unreasonable for the defendant to trust any such doctor or expert witness obtained by the plaintiff – the defendant will want want their own doctor expert witness in order to avoid adversarial bias).

Question 43

Disclosure of Persons with Knowledge

Answer 43

A party has no obligation to include in their initial disclosures information concerning individuals who have discoverable info but whom the party does not intend to use. This includes expert witnesses that provide service, but their reports will not be admitted, and they will not be called to testify.

Question 44

26(f) Conference

Answer 44

A meet and confer to plan discovery, this conference should be as soon as possible, and must take place 21 days prior to Scheduling Conference. Initial disclosures must be exchanged 14 days after the 26(f) conference, unless the court stipulates otherwise.

Question 45

Interrogatories

Answer 45

A party may request 25 interrogatories, and if more are needed, bring this issue up at the 26(f) conference. Parties have 30 days to respond to interrogatories.

Question 46

Depositions

Answer 46

A formal interview under oath. A party is initially limited to 10 depositions, but the parties may stipulate a certain number. Depositions are normally limited to one day, and at the most seven hours on that day.

Question 47

Work Product Doctrine

Answer 47

Material a lawyer prepares for litigation is immune from discovery unless the opposition shows a substantial need and inability to gather the material without undue hardship. Absolute privilege applies to mental impressions, notes or opinions. Qualified privilege applies to other materials that can be discoverable upon showing of substantial need and inability to acquire the materials elsewhere.

Question 48

Res Judicata

Answer 48

Claim Preclusion - Prohibits parties from re-litigating claims. Requires that the litigants be identical (or in privity, did the original litigant pass away?), a final judgment on the merits of the original case, and it must be the same claim based on same transaction or occurrence as that previously litigated. In CA all appeals must be exhausted. A dismissal with prejudice equals a final judgment on the merits. If the plaintiff wins, then the new claim is merged, if the defendant wins then the new case is barred. (Three requirement - same parties, final judgment and same transaction or occurrence)

Question 49

Collateral Estoppel

Answer 49

Issue Preclusion - Prohibits parties from re-litigating a specific issue. This requires that there be a final judgement on the merits, the issue is identical to the issue previously decided, the issue was actually litigated and essential to the prior case, and the opposing party had an opportunity to litigate the issue in the original case. If one state initially issues a judgment, that forum state laws determine if it can be used non mutually in another state.

Question 50

Res Judicata/Collateral Estoppel Example

Answer 50

Two guys, A and B on a bus, bus crashes into a median while the driver is checking Facebook on his phone. Guy A sues, wins his case, and it is determined that the bus company is negligent. Guy A can't later sue the bus company again for more money (Res Judicata). But, Guy B can sue for damages, and since the bus company was already found negligent, Guy B doesn't need to prove the bus company was negligent, that issue was already determined during Guy A's trial (Collateral Estoppel).

Question 51

The Erie Doctrine

Answer 51

In a federal case under diversity, the court will apply its own federal procedural laws but must apply state substantive law. The forum state's laws wiII be used to determine which state rules will apply. The goal of the Erie Doctrine is to discourage forum shopping, where a plaintiff will file in a federal court when faced with unfavorable state laws , and to ensure justice is evenly applied . Federal Procedural law includes things such as court procedures, federal rules of evidence and civil procedure, deadlines, etc. Substantive law will include things that affect legal rights and responsibilities, such as the elements of the claim, the statute of limitations, etc. In general, apply federal rules if on-point and do not violate a substantial right. If it does, use state law to determine the outcome In this case, since state law will determine the outcome, filing in federal court serves no purpose.

Question 52

Statute of Limitations

Answer 52

Limits the amount of time a plaintiff may bring a claim to encourage resolution of claims within a reasonable tiem before evidence has been lost or facts have become unclear through the passage of time, defect of memory, death or disappearance of witnesses.

Question 53

Relation Back

Answer 53

An amendment to a pleading overcomes the statute of limitations when the claim arises from the same transaction or occurrence as the original claim, the new party received notice of the lawsuit and knew or should have known the action should have been filed against the new party.

Question 54

Class Action Certification

Answer 54

A class action lawsuit is one where a large number of plaintiffs file suit. In order to receive class status , a judge must determine that the class must be so large that joinder of all parties is impractical, there is a common question of law or fact shared by the class, the claims of the named representatives are typical of the class and the representatives fairly and adequately protect the interests of the class.

Question 55

CAFA

Answer 55

Allows federal courts to preside over class action cases when the amount in controversy exceeds $5M, the class is at least 100 persons, and where minimal diversity exists - at least one plaintiff and one defendant are diverse.

Question 56

Summary Judgment

Answer 56

Should be granted if the pleadings, discovery, and affidavits bear no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Either party can file until 30 days after the close of all discovery.

Question 57

Judge or Jury

Answer 57

Under the 7th Amendment, if a case contains both legal and equitable claims arising from a common nucleus of operative facts, then the legal claims should be tried by the jury first, and the equitable claims would be tried by the court afterward. This works in the opposite way in CA.

Question 58

Judgment as a Matter of Law (JMOL)

Answer 58

Can be motioned for if a party has been fully heard and no reasonable jury could find in their favor. The movant must make this motion prior to sending the case to the jury. If they make this motion and the verdict is against them, they can move for a renewed JMOL.

Question 59

Directed Verdict

Answer 59

This is a JMOL in California Court C.C.C.P §630.

Question 60

Renewed Motion for Judgment as a Matter of Law (RJMOL)

Answer 60

A renewed motion for JMOL may be filed no later than 28 days (CA it’s 15) after entry of the judgement and is limited to those issues raised in the JMOL. If the party did not file the motion prior to assignment to the jury, they have not preserved the right to file a renewed JMOL.

Question 61

Motion for New Trial

Answer 61

This motion must be filed no more than 28 after judgment (In CA, 15). The court may grant a new trial for an error during trial, juror misconduct or if the verdict is against the weight of the evidence.

Question 62

Insufficiency of Evidence

Answer 62

In situations where a party fails to raise the issue of insufficiency of evidence in a motion for JMOL, RJMOL or a new trial you have failed to preserve, and can't raise this issue on appeal.

Question 63

Judicial Order for a New Trial

Answer 63

A judge can order a new trial for any reason that a party could motion for one. (This is in regard to the common MBE scenario where a judge over-hears jurors mention they didn't understand the jury instructions - in this case, the judge may order a new trial sua sponte or on their own accord).

Question 64

Joinder of Claims

Answer 64

A plaintiff can join any number or type of claims against a defendant. These can include state claims and federal claims, and they are not required to be related - you only need the same litigants, and one of the cases must meet the requirements of SMJ.

Question 65

Compulsory Joinder of Parties

Answer 65

a plaintiff must join all interested parties or face dismissal of the lawsuit. The court must ask: 1) should the absentee be joined; 2) can the absentee be joined; and 3) if the absentee cannot be joined, can sufficient relief be granted?

Question 66

Permissive Joinder of Parties

Answer 66

Parties may join as plaintiffs or be joined as defendants whenever: 1) some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and 2) there is a question of fact or law common to all parties. Simply being jointly or severally liable does not deem a party a necessary party.

Question 67

Miscellaneous Jury points

Answer 67

if an action is not one where a jury might be demanded, a court can’t grant a jury without both parties’ consent. The court may try any jury issue with an advisory jury. If both parties consent, the court may allow a jury trial on a non-jury issue, and the effect is binding.

Question 68

1791 Rule

Answer 68

If a party would have been entitled to a jury in 1791, before the common law/equity split, that party is entitled to a jury trial today.

Question 69

Right to Jury in Civil court

Answer 69

The right to a jury trial in civil cases is only guaranteed n federal courts – state laws determine jury rights in state courts.

Question 70

Motion to Dismiss

Answer 70

A court may dismiss a civil claim without legal merit by determining if sufficient facts are pled to sustain a prima facie case for the alleged cause of action. If not, the court will not evaluate the merits of the case. If the motion is based on insufficient process, proper procedure would be to file a motion to dismiss, not with an answer stating affirmative defenses, per FRCP 12(b).

Question 71

New Trial

Answer 71

Ordered when there is an error during trial, juror misconduct, verdict is excessive or inadequate, or the verdict is against the weight of the evidence. A motion for a new trial must be filed no later than 28 days after the judgment has been entered. A RJMOL motion can be filed simultaneously with a new trial motion. If the RJMOL is approved, the court should conditionally rule on motion for new trial. (A RJMOL should be filed if the verdict is against the evidence, Motion for New Trial if there is an error that takes place during trial.)

Question 72

Juror Misconduct

Answer 72

Testimony that a juror used extraneous, prejudicial information or improper outside influences is grounds for a new trial. Misunderstanding of the standard of proof, mental states and relying on evidence that was directed to be disregarded are not grounds for a new trial.

Question 73

Final Judgment Exceptions

Answer 73

A claim or issue may be immediately appealable (interlocutory) if it is too important to wait and requires that the lower court must have conclusively determine the disputed questions, the issue must be separate from and collateral to the merits of the main issue of the case, and the issue must be effectively unreviewable on appeal from some final judgement (Extreme cases only – immunity, double jeopardy, or some right that would negate the need for standing trial).

Question 74

Appeals

Answer 74

Must be within 30 days, unless the party is the US Government, or an agent thereof, then the appeal must be filed within 60 days. (CA – also 60 days). However, if a timely RJMOL, Motion for New Trial, or Motion to Set Aside or Amend the Judgement is file, the running of the 30 days is terminated. Upon a ruling on the post trial motions, a new 30 ay period begins to run.

Question 75

Issues Eligible for Review on Appeal

Answer 75

Requires the losing party to preserve the issue during trial, typically by making an objection, then raise the issue on appeal. If the issue of fact, the appellate court will give great deference to the trial court’s handling, as well as the jury determination. The appellate court will not reverse if they find the error was harmless.

Question 76

Harmless Error

Answer 76

An error that does not affect substantial rights of the parties.

Question 77

Default Entry

Answer 77

If a party has made an appearance yet later defaults, they must be given a 7-day notice of the default entry hearing. If they never appeared, they are not afforded a 7-day notice and go straight to default. Note – if a party files a Motion for Lack of Personal Jurisdiction, it's still an appearance, so if that party fails to reappear, they are still entitled to a 7-day notice.

Question 78

Default Amount in Controversy MBE Jeopardy Question

Answer 78

A party sues for $80K and the opposing party fails to appear at trial. If during trial the plaintiff can show $200K in damages, and the opposing party didn't appear, the plaintiff will get the $200K in a default judgment, despite initially suing for only $80K. Additionally, sue for $90K and get awarded $1.99? As long as $90K was pleaded in good faith, it satisfies the above $7SK AIC requirement.

Question 79

Amending a Complaint

Answer 79

A pleading may be amended once within 21 days of serving, ,21 days after being serviced of a responsive pleading or preanswer (if it requires a response), after seeking leave of the court, or written consent of the adverse party. If a party moves to dismiss a claim twice without leave of the court it acts as an adjudication on the merits – dismissed with prejudice. For statute of limitations purposes, an amendment to a pleading that arises from the same transaction or occurrence set forth in the original pleading is generally deemed filed on the date the original pleading was filed.

Question 80

Additur and Remittur

Answer 80

In cases where jury awards are deemed insufficient, a court may invoke an additur (provide the losing party the option of adding to their judgement or facing a new trial), or when excessive, a remittur (offering the winning party the option of lowering their award or facing a new trial). Federal courts don’t permit additur, but may invoke remittur.

Question 81

Standards of Review

Answer 81

1) Clearly Erroneous; 2) De Novo; 3) Abuse of Discretion

Question 82

Clearly Erroneous

Answer 82

Standard that is used when there is bad fact finding.

Question 83

De Novo

Answer 83

Standard that is used if the error is due to a pure matter of law, the appellate court may order judgment in place of the original verdict. Mixed questions of law and fact are typically de novo.

Question 84

Abuse of Discretion

Answer 84

Standard that is used when the court makes a bad decision that is plainly wrong or without appropriate basis.

Question 85

Sanctions

Answer 85

The Court has discretion to impose sanctions sufficient to deter repetition of conduct. The court will not fine the party because of the lawyer's misconduct, nor will they dismiss a case with prejudice. (Sanctions can include monetary penalties, or in extreme cases, passage of the MPRE, Bar Exam, etc),

Question 86

Rule 11 Sanctions

Answer 86

Every pleading, written motion, or other paper filed with the court must be signed by the attorney of record, certifying that to the best of the attorney's knowledge information, and belief formed after a reasonable inquiry: 1) the document is not being presented for an improper purpose; 2) the legal contentions are warranted by existing law; and 3) factual contentions and denial have evidentiary support. A court may order sanctions on it’s own initiative. If an opposing party moves for sanctions, they must give notice of their intention to do so to the opposing counsel and allow them 21 days to withdraw or correct the matter before the Motion may be filed. Sanctions may be for monetary penalties, or, more frequently, non-montary directives.

Question 87

Writ of Mandamus

Answer 87

An order directing a judge to act/enjoin when it has been determined that an appeal would be insufficient to correct the problem at hand, and that the trial court's actions constitute a serious abusee of power in need of immediate rectification.

Question 88

Findings and Conclusions

Answer 88

Required to be provided by a court when there is no jury and the case is tried solely on facts. This can be done when there is no need to assess the credibility of the witnesses.