Civil procedure MBE

Question 1

Federal Question jurisdiction arises when

Answer 1

a P’f alleges a claim arises under federal law.

Question 2

Supplemental Jurisdiction

Answer 2

Fed. Courts have discretion to exercise supplemental jurisdiction for claims that arises from a common nucleus of operative facts.

Question 3

Diversity Jurisdiction

Answer 3

Mechanism that a Plaintiff can use to get to Federal Court.
Each plaintiff must be from different states from all defendants.
The claim must be for an amount exceed $75K

Question 4

A corporation is deemed to be a citizen of

Answer 4

Every state in which is incorporated.
and
The one state where it has its principal place of business.

Question 5

In general, punitive damages can be a_________ to be counted in the evaluation of the amount in controversy requirement

Answer 5

aggregated / added

Question 6

Motion to dismiss / 12(b) Rule.

Objection to personal jurisdiction may be asserted by

Answer 6

Pre-answer motion
or
in the answer itself
Provided that the objection is in the Defendant’s first response! Can be simultaneously if the answer also moves to dismiss.

Question 7

If Personal Jurisdiction is not raise in Defendant’s first response, the objection is:

Answer 7

waived.

Question 8

Venue.

Venue is proper in any district where:

Answer 8

-A defendant resides
(if all the Defendants reside in the same state)
-Or if Defendants reside in different states, venue is proper where the cause or causes of action occurred (or substantial causes occurred), this will be only proper venue.

Proper venue can be more than one.

Question 9

Forum non Conveniens

Answer 9

inconvenient forum.
Court would reject/dismiss the action based on this
or
literally would not do anything with the case

Question 10

Rule 4.
Service of process.
Service can be made to an individual by:

Answer 10

leaving a copy of the summons and complaint
at the individual’s dwelling or usual abode
with someone of suitable age, discretion, and maturity who resides there.

Question 11

A third-party defendant may assert a claim against the plaintiff if the claim (counterclaim of a third-party defendant)

Answer 11

arises from the same transaction or occurrence as the original Plaintiff’s claim.
So, the original defendant can bring a third-party action OR bring and own independent action against the original Plaintiff

Question 12

A defendant wants to bring a counterclaim against the Plaintiff for the same transaction or occurrence of the original claim
When the Defendant needs to assert the counterclaim?

Answer 12

in the same pending action as a counterclaim.
Because the claim arises from the same transaction or occurrence as the original’s pending claim.
If Defendant does not bring a this counterclaim it will be barred from asserting the claim in an independent action.

Question 13

A Defendant cannot assert a third-party claim, against another party, unless they are seeking

Answer 13

to obtain recovery.
and that recovery must be for the Defendant’s third-party Plaintiff’s own liability to the original Plaintiff.

(example, A sues B, B says that C did it (negates all liability completely) and wants to assert a third-party claim against C ->CAN’T!) unless,
(if you are denying liability, can’t bring a third-party unless you are admitting some liability and saying that the third-party is ALSO liable in some percentage, both defendants should be liable in order to bring it)

Question 14

Amending a complaint.
Amendments to complaints substituting a new defendant are allowed and the amendment will relate back to the original complaint if:

Answer 14

1. the claims in the amendment arise from the same transaction or occurrence
2. within the time permitted for serving the original complaint (90 days of filling).
3. the new Defendant receives such notice of the action that it won’t be prejudiced in defending on the merits and they knew or should know about the possible claim.

Question 15

What happens to the following 12(b) motions if are not arise in the FIRST motion/response of the Defendant?:

1. Motions to dismiss for lack of personal jurisdiction.
2. Motion to dismiss for improper venue

Answer 15

they are waived.

Question 16

Motion to dismiss based on Subject matter Jurisdiction is never ______

Answer 16

waived

Question 17

Service of Process can be made by the rules of:

Answer 17

1.Federal rules (if Fed. Court)
or
2.Rules of the state where the Federal court sits
or
3.Rules of the state in which service is to be effected

Question 18

Discovery.

Discovery may be had of any non-privilege matter that is:

Answer 18

relevant to any party’s claim or defense as long as the information being sought can reasonably lead to admissible evidence.
(Anything is discoverable as long as is not privilege) (work product information / attorney -client)

Question 19

A party must provide the names of individuals likely to have __________ information

Answer 19

A party must provide the names of individuals likely to have discoverable information.
Along with the subject of that information that the disclosing party may use (the nature)

Question 20

Work product doctrine is:

Answer 20

a qualified immunity from discovery.
Exception:
to discover this information is that the opposing party shows a substantial need that they cannot obtain the same material in an alternative way without undue hardship.

Question 21

as to a granted Motion to Compel, the court must require to the breaching party to pay

Answer 21

reasonable expenses incurred by the Plaintiff in making the motion to compel, if the party compelled with the motion to compel.
If did not compel with the motion, can impose sanctions.

Question 22

Procedural mistakes objections are to be made

Answer 22

timely.

Timely objection to procedural mistakes or you waive your right to object this on appeal.

Question 23

Motion for summary judgment should be granted when there is no

Answer 23

genuine dispute of material fact.

Question 24

Default judgment against a Defendant

Answer 24

A defendant against whom a default is entered, loses the right to contest liability, unless the entry of default is set aside.
The amount of damages needs to be certain/determined before a default judgment may be enter.
The Judge needs to enter the default judgment.
The Defendant is entitled to a hearing on the Default as long as the Defendant made some type of appearance.

Question 25

A clerk can enter a default judgment if:

Answer 25

The amount of damages is specific and certain.

Question 26

Class actions:
When a district court issues an order, grating or denying, the class action certification, can be appealed within:

Answer 26

14 days of entry.

is immediately appealable.

Question 27

Motion for a new trial:

Answer 27

May be granted when there is an error during the trial.

example: usually the verdict goes against the evidence presented / jury misconduct…

Question 28

Motion for Judgment as a matter of law may be made by any party before the case is:

Answer 28

submitted to the jury.

Question 29

Remittitur:

Answer 29

Arises when a trial judge believes that a jury’s award of compensatory damages is so excessive as to shock the conscience.
the judge may order a new trial or Offers the Plaintiff REMITTITUR.
The Plaintiff is given the choice between:
Accepting the award offered by the court of a lower amount (remittitur)
or
request a new trial

Question 30

Crossclaims are never:

Answer 30

Are never compulsory.

Question 31

Issue preclusion (collateral estoppel) :

Answer 31

in a previous action between Plaintiff and Defendant, any judgment that occurred binds them in subsequent actions on different causes of action as to issues actually litigated and essential to the judgment of the first action.
Default or Consent judgment = no issue preclusion because was not litigated.

Question 32

Supplemental jurisdiction:

Answer 32

When the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding.

Question 33

a court can have supplemental jurisdiction over a cross-claim?

Answer 33

Yes

Question 34

A defendant may remove an action that could have originally been brought in the federal courts, either on the basis of a

Answer 34

federal question being presented
or
on the basis of diversity of citizenship

Question 35

Removability.
When a defendant want to move the case from state court to Fed. Court.
The Fed court must have SMJ in order to request the removability.
Exception:

Answer 35

When jurisdiction of the federal court is based solely on diversity, and one of the defendants is a citizen of the state in which the action was brought, the action is not removable.

Question 36

Personal jurisdiction may be “specific,” meaning that:

“General” personal jurisdiction:

Answer 36

-Specific Personal jurisdiction: the court has personal jurisdiction over the defendant for the complained-of cause of action, for this specific claim.
The close connection between the plaintiff’s cause of action and the contact from which the case sprung is usually sufficient for the court to exercise “specific” jurisdiction over the defendant.
Close connection between the case and the Defendant.
-“General” personal jurisdiction: meaning that the court has personal jurisdiction over the defendant for ALL causes of action. the Defendant is at home.

Question 37

Venue in civil actions is proper in

Answer 37

(i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and
(ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred.

If there is no district anywhere in the United States that satisfies (i) or (ii), the action may be brought in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action

Question 38

Proper service process can be made by the rules of:

Answer 38

Federal rules
State rules where the claim is sit
State rule where the service is going to take place

Question 39

a defendant typically must serve an answer or other appropriate response within 21 days after being formally served with process, a defendant who waives service of process is allowed

Answer 39

60 days from the date on which the plaintiff mailed the summons and complaint in which to serve a response.

Question 40

an amended complaint relates back to the time of the original complaint if it:

Answer 40

asserts a claim that arises from the same transaction set forth in the original complaint and, within the time prescribed for service of process, the new defendant received such notice of the action that it will not be prejudiced in defending the merits and either knew or should have known that the action would have been brought against it but for a mistake concerning the proper party’s identity.

Question 41

Ex parte temporary restraining order:
As a general rule, notice of the hearing for the issuance of the order must be given before it is issued. However, a court may grant an ex parte temporary restraining order without notice of the hearing to the adverse party if the moving party does the following:

Answer 41

(i) gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition;
(ii) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and
(iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained.

Question 42

Third-party claims

Answer 42

Third-party claims may be maintained only if the defendant/third-party plaintiff alleges that the third-party defendant is liable to the defendant/third-party plaintiff for all or part of the defendant/third-party plaintiff’s liability to the plaintiff.
the Defendant can bring a their-party claim if this third-party may be liable to the original D’t for any part of a judgment that the plaintiff may recover against her.

Question 43

A deposition may be used against any party who was present at the deposition or had notice of it in order to:

Answer 43

(i) to impeach the testimony of the deponent as a witness;
(ii) for any purpose if the court finds that the deponent (including a party-deponent) is dead, at a distance greater than 100 miles from the place of trial (unless the absence was procured by the party offering the deposition), or unable to testify
(iii) for any purpose if the deponent is an adverse party.

Question 44

Before claim preclusion (also called res judicata) applies, it must be shown that

Answer 44

(i) the earlier judgment is a valid, final judgment “on the merits”;
(ii) the cases are brought by the same claimant against the same defendant; and
(iii) the same “cause of action” (or “claim”) is involved in the later lawsuit.