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MBE > MBE Rapid Fire > Civil Procedure > Flashcards

Civil Procedure Flashcards

1
Q

Elements of federal question jurisdiction

A
  1. There is a federal question in dispute; and
  2. Question appears on the face of a well-pleaded complaint
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2
Q

What is diversity jurisdiction and when does it exist?

A

Jurisdiction based on the parties’ citizenship.

Exists when:

  1. There is complete diversity between parties (no party is a citizen of the same state as the other party); and
  2. Amount in controversy is greater than $75,000

28 U.S.C. § 1332

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3
Q

How is citizenship for diversity jurisdiction determined for:

  1. Persons?
  2. Corporations?
A
  1. Persons: where the party is domiciled → where party currently resides and intends to remain indefinitely. Only one domicile allowed.
  2. Corporations: place of incorporation and/or principal place of business. Can be domiciled in 2 states.
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4
Q

Define

supplemental jurisdiction

A

Power for courts to hear a claim that does not have SMJ as long as the claim is substantially related to one for which SMJ does exist

28 U.S.C. § 1367

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5
Q

When can a case be removed? (generally)

A

When P could have filed original complaint in federal court (i.e. fed court has FQ, diversity, or supplemental jurisdiction over all claims)

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6
Q

What is the minimum contacts analysis for PJ?

A
  1. Did the D purposefully avail himself of the forum (such that it was foreseeable litigation could occur)?
  2. Would exercise of PJ violate notions of fair play and substantial justice? (If D has minimum contacts, extremely rare for this to defeat PJ)
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7
Q

Define

specific jurisdiction

A

Exists when the claim is related to D’s contacts in the forum state.

Examples include:

  • committing a tortious act in a state
  • signing a contract in a state
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8
Q

Where is venue proper?

A
  1. District where D resides, if D’s are all residents of the same state;
  2. District where a substantial portion of events giving rise to the claim occurred; or, if none of these provide basis for venue then →
  3. Any district that has PJ over any D
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9
Q

Where can a party transfer venue if:

  1. Original venue was proper?
  2. Original venue was improper?
A
  1. Original proper: As long as the new district would also have proper venue. The transfer will be granted if the new district is more convenient for the suit 28 U.S.C. § 1404
  2. Original improper: Any district where venue would be proper
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10
Q

How can process be served?

A

Either:

  1. In the manner prescribed by the state court in the state where the federal suit has been filed; or
  2. In the manner prescribed by the state court in the state where D will be served; or
  3. Serve process in the manner specified in FRCP 4(e)(2)
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11
Q

In a diversity jurisdiction case, assuming state common law and federal law conflict, what is the first step in Erie analysis?

A

Determine the law behind the primary issue, and determine whether the law is procedural, substantive, or something in the middle.

  • If the issue is substantive, apply state law.
  • If the law is procedural, apply federal law.
  • If the law is something in the middle, proceed to step two.
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12
Q

For Erie analysis, if the law is something in the middle, how do you determine which law to apply?

A

Ask:

  1. Outcome determinative test: Does the choice of law impact the outcome of the case? If so, apply state law.
  2. Forum shopping: Would failing to apply the state law lead more people to want to litigate in federal court ? If so, apply state law.
  3. Balance of interests: Does the state have a greater interest in having its own law applied than the federal law? If so, apply the state law.
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13
Q

What types of laws are substantive?

A
  • Choice of law
  • Statute of limitations
  • Elements of a crime or case
  • Burdens of proof
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14
Q

Compare procedural and substantive laws

A

Procedural: Laws that provide the process by which a case will progress. Examples include methods of serving process or time limits for filing motions.

Substantive: Laws that provide a right. Examples include the duty of care or a state privacy law statute.

⚠️ Note: Some laws, such as a statutes of limitations, fall in a grey area between the two. These laws are where most issues with the Erie Doctrine reside. The status of such statutes is dependent on the outcome determinative test (Step 2).

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15
Q

Rule 12(b) grounds for dismissal

A
  1. Lack of SMJ;
  2. Lack of PJ;
  3. Improper venue;
  4. Insufficient process;
  5. Insufficient service of process;
  6. Failure to state a claim upon which relief can be granted; and
  7. Failure to join a party under Rule 19

FRCP 12(b)

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16
Q

What is a complaint and what must it contain?

A

Pleading filed to initiate lawsuit.

Must contain:

  1. Grounds for SMJ;
  2. Statement of claim; and
  3. Demand for relief (damages, equitable relief, etc)
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17
Q

D has ____ days after service of process to file an answer

A

21

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18
Q

What must an answer contain?

A
  1. Admittance or denial of all complaint allegations
    • Failure to deny constitutes admission
  2. Affirmative defenses (if D fails to raise in answer, they will be waived)
    • Self-defense
    • Statute of Fraud
    • Statute of Limitation
    • Contributory negligence
    • Claim preclusion
    • Fraud
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19
Q

When can a party amend its pleading as a matter of course?

A
  1. Parties may amend pleadings once as a matter of course within 21 days of service of process.
  2. If the pleading is one to which a responsive pleading is required, 21 days after either responsive pleading or pre-answer motion (whichever came first)

FRCP 15(a)

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20
Q

When do amendments adding parties “relate back”?

A

If:

  1. Amendment arises out of the same conduct, transaction, or occurence as the original pleading; and
  2. Within 90 days after the complaint is filed, the new D:
    • Received notice & will not be prejudiced; and
    • Knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity (i.e. suit was foreseeable)

FRCP 15(c)(1)(C)

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21
Q

A party has ___ days to respond to an amended pleading

A

14 days after service of the amended pleading or the time remaining for response to the original pleading (whichever is later)

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22
Q

What 12(b) defense is never waived?

A

Lack of SMJ

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23
Q

When is joinder of additional parties permitted?

A

Multiple plaintiffs can join a party or sue multiple D’s if:

  1. P is suing D’s jointly, severally, or in the alternative;
  2. Claims arise out of the same transaction or occurrence; and
  3. There is a common question of law or fact to all parties joined

FRCP 20

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24
Q

What occurs if a necessary party cannot be joined?

A

The court uses a balancing test to determine whether the suit should be dismissed:

  1. Would the judgment rendered in the party’s absence prejudice that person or the existing parties?
  2. Could prejudice be lessened or avoided by:
    • protective provisions in the judgment;
    • shaping the relief; or
    • other measures
  3. Would a judgment rendered in the person’s absence be adequate?
  4. Would the plaintiff have an adequate remedy if the action were dismissed?
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25
Q

When is joinder of parties compulsory?

A

If party is necessary →

  1. Complete relief cannot be issued in the party’s absence; or
  2. Failure to join would impede the rights of either that party or existing parties
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26
Q

Define

impleader

A

When the D adds a third party to the case, alleging third party is responsible for some or all of the liability facing the D (i.e. “It wasn’t my fault, it was his fault”)

(common for indemnity cases & with joint tortfeasers)

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27
Q

What is interpleader and what are the two different types?

A

Allows a party with multiple, different claims to join all the claimants together.

Types:

  1. Rule interpleader (FRCP 22)
  2. Statutory interpleader (28 USC § 1335)
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28
Q

What are the SMJ, PJ, and venue requirements of rule (FRCP 22) interpleader?

A
  1. SMJ → Stakeholder must be diverse from every claimant (complete diversity required) and amount in controversy >$75K
  2. PJ → over all claimants
  3. Venue → same rules as other federal cases
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29
Q

What are the SMJ, PJ, and venue requirements for statutory interpleader?

A
  1. SMJ → one claimant diverse from > one other claimant (only minimal diversity required) and amount in controversy > greater than or equal to $500
  2. PJ → exists as long as claimants are in the US
  3. Venue → proper in any district where any claimant resides
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30
Q

What are the general requirements for a Rule 24 intervention?

A

Permitted when

  • Right is granted by federal statute; or
  • Party has an interest relating to the subject matter of the action and would not be able protect their interest w/o intervention .

FRCP 24

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31
Q

Define

permissive counterclaims

A

Claims that do not arise out of the transaction or occurrence as the original claim

32
Q

Define

compulsory counterclaims

A

Claims filed by the D against the P that arise out of the same transaction or occurrence as the original claim

33
Q

Define

cross-claim

A

Claims filed against a co-party (i.e. someone on the same side of the v). Must arise out of the same transaction or occurence

Ex. Ian sues Max and Carly. Carly can file a cross-claim against Max as long as it arises out of the same transaction or occurence

34
Q

What are the three types of class actions under Rule 23(b)?

A
  1. When separate actions would create a risk of inconsistent judgments or judgments that would substantially impair the ability of a non-party member to protect his interests (Rule 23(b)(1))
  2. When the class seeks injunctive or declaratory relief (not damages) (Rule 23(b)(2))
  3. Most common: When a class seeks damages and questions of law or fact common to class members predominate over any questions affecting individual members, so that a class action is superior to individual suits. (Rule 23(b)(3))
35
Q

What two steps does the court take to determine where a class action is appropriate?

A
  1. Does a class fulfill the four requirements under Rule 23(a)?
    1. the class is so numerous that joinder of all members is impracticable;
    2. there are questions of law or fact common to the class;
    3. the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
    4. the representative parties will fairly and adequately protect the interests of the class.
  2. If yes: Determine what type of class, considering:
    • 23(b)(1)
    • 23(b)(2)
    • 23(b)(3)
36
Q

What are the SMJ requirements for a class action under 28 U.S.C. § 1332?

A

For actions with more than 100 members:

Federal question: same as other cases

Diversity:

  1. Any plaintiff is diverse from any defendant; and
  2. Aggregate amount in controversy is >$5 million

⚠️ Note: Only the class representatives must be diverse from opposing parties, not each member of the class.

37
Q

For a class action, when claims arise under state law and parties are citizens of different states that have different laws on the claims, is commonality defeated?

A

Likely yes

⚠️ Note: This scenario is frequently tested on the MBE

38
Q

What are the 6 methods of discovery?

A
  1. Mandatory disclosures;
  2. Interrogatories;
  3. Request for Admissions;
  4. Request for Documents and Tangible Items;
  5. Requests for Mental or Physical Examinations; and
  6. Depositions
39
Q

What are the 3 mandatory disclosures and the deadline for each?

A
  1. Initial disclosures (14 days after discovery conference)
  2. Expert testimony (90 days before trial)
  3. Pretrial disclosures (30 days before trial)
40
Q

What pretrial disclosures are required related to expert and lay witnesses?

A
  • Expert: List of all expert witnesses and any info used to form the basis of their opinion. (FRCP 26(a)(2))
  • Lay: List of all witnesses and documents that will used as exhibits at trial (FRCP 26(a)(3))

Deadline: 90 days before trial

41
Q

Define

depositions

A

Proceedings held in the course of discovery (before a trial) where a witness is questioned orally by an attorney under oath

42
Q

What are the rules on deposing a corporation?

A

Party can subpoena a corporation.

Corporation/entity must then designate one or more officers, directors, or managing agents, or other persons to testify on its behalf about information known or reasonably available to the organization

43
Q

Define

interrogatories

A

Written questions used for disclosure of routine information (25 max)

FRCP 33

44
Q

What are requests for production and the deadline for response?

A

Request for documents, tangible evidence and electronic evidence

Deadline: 30 days after request served

FRCP 34

45
Q

What are requests for admissions and how can a party respond?

A

Requests for parties to admit the truth of certain evidence

Response options:

  • Admit information is true
  • Deny information is true
  • Explain why party cannot admit or deny
  • Object to request

FRCP 36

46
Q

A party can compel another party to ____________ under Rule 37(a)

A
  • Answer questions in a deposition
  • If a corporate defendant, to designate an individual for purposes of deposition
  • Answer an interrogatory
  • Produce documents or permit inspection of documents
47
Q

What is the effect of an attorney signing discovery disclosures pursuant to Rule 26(g)?

A

Certifies that the disclosures are:

  • Complete and correct (mandatory disclosures only);
  • Consistent with the rules;
  • Warranted by existing law;
  • Not made for an improper purpose; and
  • Not unreasonably burdensome

(Discovery counterpoint to Rule 11)

48
Q

What does it mean if a case is dismissed with prejudice?

Without prejudice?

A

With prejudice: adjudication on the merits, cannot relitigate

Without prejudice: no adjudication on the merits, can religitate

49
Q

What is a 12(b)(6) motion to dismiss?

A

A motion to dismiss the case before discovery because the P has failed to state a claim upon which relief can be granted.

50
Q

Upon what conditions will a motion to dismiss be granted?

A
  • Generally, it will be granted when a complaint does not contain enough specific allegations to make it plausible that P could be entitled to relief.
  • Exception: Remember that claims of fraud or mistake must be pled with particularity, rather than only plausibilty.
51
Q

Involuntary dismissal under 41(b) is ____ prejudice

A

With prejudice

52
Q

Difference between a default and a default judgment?

A

Default = D’s failure to respond (stage 1)

Default judgment = judgment entered into the record after D defaults (stage 2)

53
Q

Upon filing a motion for summary judgment, the moving party must:

A

Make a prima facie showing that:

  1. No genuine issue of material fact exists; and
  2. Moving party is entitled to judgment as a matter of law
54
Q

After the moving party shows that summary judgment is proper, what is the second step?

A

Burden then shifts to non-moving party to present evidence showing that a genuine issue of material fact exists

55
Q

Deadline for motion for summary judgment

A

30 days after discovery has ended

56
Q

How can a party demand a jury trial?

A
  1. File a written demand within 14 days after the last pleading; and
  2. Properly serve to the other parties
57
Q

What are challenges for cause and how many does each side have?

A

Used to dismiss a potential juror due to bias; unlimited number per side

58
Q

What are peremptory challenges?

A

Used to dismiss jurors, reason does not need to be articulated as long as it is race and gender neutral.

59
Q

Deadline for a party to propose jury instructions?

A

Generally, before the close of all evidence presented to the jury.

However, a party can file after close of evidence if either:

  1. instructions are for issues not reasonably anticipated, or
  2. court has given permission to untimely file (can propose for any issue)

FRCP 51

60
Q

Define

judgment as a matter of law

(also called a “directed verdict” or JMOL)

A

Ruling entered by judge against a party if a party lacks sufficient evidence to prevail on an issue necessary to a particular claim or defense

FRCP 50(a)

61
Q

When can D file for judgment as a matter of law? P?

A

Both parties: before case is submitted to jury

D: Either after close of P’s evidence or after close of all evidence

P: After close of all evidence

62
Q

Define

renewed motion for judgment as a matter of law (RJMOL)

(also called “judgment notwithstanding the verdict” or JNOV)

A

If a party loses on a JMOL, they can make a renewed motion for JMOL (“RJMOL”) within 28 days after entry of judgment

⚠️ Note: Party must have properly & timely filed a JMOL to seek an RJMOL

FRCP 50(b)

63
Q

Deadline for all post-trial motions? (generally)

A

28 days

64
Q

In ruling on a RJMOL, the court may:

A
  1. Allow the verdict to stand;
  2. Order a new trial; or
  3. Direct entry of judgment as a matter of law (if reasonable people could not agree that the verdict was correct)
65
Q

When is a motion for relief from judgment under Rule 60(b) proper?

A
  • There is mistake, inadvertence, surprise, excusable neglect;
  • Newly discovered evidence;
  • Misrepresentation, misconduct, or fraud
  • Judgment has been satisfied, released, or discharged;
  • Judgment is void; or
  • Any other reason that justifies relief
66
Q

What is the deadline for filing a motion for relief from judgment?

A

Within one year of final judgment if for:

  • Mistake, inadvertence, surprise, excusable neglect
  • Newly discovered evidence
  • Misrepresentation, misconduct, or fraud

Within a reasonable period of time if:

  • Judgment is satisfied, released, or discharged
  • Judgment is void
  • Any other reason that justifies relief
67
Q

What are examples of juror misconduct? What happens if misconduct is found?

A
  • Introducing or using evidence gained outside of trial
  • Improperly communicating with outside parties
  • Giving dishonest testimony during voir dire

If found, court may order a new trial.

68
Q

Deadline to file a notice of appeal?

A

Within 30 days of the final judgment or order being appealed

69
Q

Define

final judgment rule

A

Appeals court can only hear cases with a final judgment on the merits of the whole case (i.e. there is nothing left for the court to address)

⚠️ Exception: if there is a basis for an interlocutory appeal

70
Q

What interlocutory orders are appealable as a matter of right?

A
  • Injunctive orders
  • Orders appointing or refusing to appoint a receiver
  • Orders directing the sale or disposal of property
  • Patent order that is final except for accounting
  • Order denying arbitration (9 USC § 16)

28 USC § 1292

71
Q

List the standards of review used by appellate courts

A
  • De Novo (legal rulings)
  • Clearly Erroneous (factual findings)
  • Abuse of Discretion (discretionary rulings)
  • Plain Error (an error that the parties did not preserve by objecting to it at the time it occurred)
72
Q

What are the required elements of claim preclusion?

A
  1. A valid final judgment on the merits;
  2. Same parties (same P against same D); and
  3. Same claims (arising out of same transaction or occurence);
73
Q

What is a valid final judgment on the merits?

A
  1. Court had valid SMJ, PJ, & venue;
  2. Judgment was final; and
  3. Judgment was made on the merits
74
Q

What are the requirements of issue preclusion?

A
  1. Same issue was actually litigated and determined;
  2. Issue was essential to the judgment (ie if decided on in the opposite way it would change the result of the case);
  3. Valid final judgment on the merits;
  4. Party against whom preclusion is asserted must have had a full and fair opportunity to litigate the issue in the first suit
75
Q

What is non-mutual defensive collateral estoppel and when is it allowed?

A

When a new D seeks to assert a final judgment decided in a prior suit against P.

Only allowed if P had a full chance to litigate the issue previously.

76
Q

What is non-mutual offensive collateral estoppel?

A

P tries to prohibit D from relitigating issue D previously lost against another P

⚠️ Note: Rarely granted

MBE Rapid Fire (8 decks)

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