Civil Procedure MBE

Question 1

Personal Jurisdiction:

Answer 1

General jurisdiction: Plaintiff can sue defendant for anything generally. Look for consent (express or implied due to failure to properly object), presence (continuous and systematic contacts with the state or present in state when served), or domicile.

Question 2

Domicile

person

corporation

LLC or partnership

Answer 2

> > A person is domiciled in the state that is her permanent home where she intends to stay indefinitely.

> > A corporation is domiciled in the state where it is incorporated and where its principal place of business is located.&raquo_space;

A partnership or LLC is domiciled where its partners or members are citizens.

Question 3

Personal Jurisdiction: Specific

Answer 3

The lawsuit must arise out of the specific contacts with the state (e.g., a tort committed in the state or a contract or business transaction arising out of contacts with the state).
It must be both constitutional under the state constitution (e.g., a long-arm statute) and constitutional under the Due Process Clause of the U.S. Constitution (there must be minimum contacts with the forum state so as not to offend “traditional notions of fair play and substantial justice”).

Question 4

Subject-matter jurisdiction:

Answer 4

this is all about the power of the federal court to hear a certain kind of case.

Question 5

SMJ: Federal question

Answer 5

• Federal-question jurisdiction: It must arise out of federal law. The federal issue must be on the face of the well-plead complaint.

Question 6

SMJ: Diversity jurisdiction

Answer 6

• Diversity jurisdiction: there must be complete diversity at the time the case is filed and the amount in controversy must exceed $75,000.

Question 7

Supplemental jurisdiction

Answer 7

• Supplemental jurisdiction: State claims may be brought in a federal case if they arise out of a common nucleus of operative fact. Further, nondiverse parties may be sued in a diversity case.

Tip: in a diversity case, a defendant may implead a nondiverse party, but a plaintiff may not sue a nondiverse party directly if the only basis for the lawsuit is diversity.

Question 8

Removal

Answer 8

Removal: A defendant may remove a case within 30 days of being on notice that the case is removable (but not over a year in diversity cases unless plaintiff acted in bad faith). Defendants cannot remove on diversity grounds if any defendant is domiciled in the state in which they are sued. Tip: When a defendant removes a case, do not look to traditional venue rules to determine venue. A defendant has only one venue option—it may remove the action to the federal court that geographically embraces the state court where the suit was filed.

Question 9

Remand

Answer 9

Remand: if a plaintiff wishes to file a motion to remand to state court due to failure to comply with procedure requirements of the rule, it must do so within 30 days after removal.

Question 10

Venue

Answer 10

Venue: The state has personal jurisdiction over defendant. Where in the state does plaintiff sue?

Venue is proper where any defendant resides if all defendants reside in the same state or where a substantial part of the events or omissions giving rise to the claim occurred

Question 11

A court may transfer a case to a different venue in certain circumstances:

Transfer to proper venue

Transfer to more appropriate forum:

Forum non conveniens:

Answer 11

> > Transfer to proper venue: Occurs if the case is filed in the wrong venue. The law of the transferee court applies.

> > Transfer to more appropriate forum: Occurs when there is a more convenient forum for the case. The federal court may transfer it in the interests of justice.
The law of the transferor court applies.

> > Forum non conveniens: if a case should be litigated in a different forum (e.g., a different country) a court may dismiss the case.

Question 12

Service: Plaintiff is ready to start the lawsuit. How does plaintiff let defendant know about it?

Answer 12

Plaintiff must serve defendant with a summons and copy of the complaint.

Question 13

The process server must be:

Answer 13

The process server must be at least 18 years old and not a party to the case.

Question 14

A plaintiff can use the following (SAID) methods to serve an individual:

Answer 14

> > State law: follow the state law methods where the federal court is located or where service is made,

> > Agent: deliver a copy of the summons and complaint to an agent appointed by defendant or law,

> > Individual: deliver a copy of the summons and complaint to the individual personally, or

> > Dwelling: leave a copy of the summons and complaint at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.

Question 15

Serving a corporation:

Answer 15

to serve a corporation, a plaintiff may use the state law methods where the district court is located or where service is made, or it may serve an officer, a managing or general agent authorized, or any other agent appointed to receive service.

Question 16

Waiver: A plaintiff may ask a defendant to waive formal service of process by:

Answer 16

sending the complaint, two copies of a waiver form, and a prepaid means for returning the form via first-class mail or other reliable means.

Question 17

If defendant waives formal service, it has _____ days to answer the complaint (rather than ____). If defendant does not, it must?

Answer 17

60 days

rather than 21

pay for formal service of process.

Question 18

Pretrial procedures—this tells you what to file and how to prepare your case

Complaint and answer
• A complaint must be served within _____ days after it is filed. A response (answer or motion) must be served within 21 days (or 60 if formal process was waived) after the complaint is served.
• A pleading may be amended as of right within _____ days after service (or if the pleading requires a responsive pleading, 21 days after service of the responsive pleading or motion).

After 21 days, a party may amend its pleadings with?

Answer 18

90 days after it is filed

21 days

consent of the other party or the court. The court will freely give leave when justice so requires.

Question 19

Joinder of new claims:

Answer 19

Once a party has one properly filed claim, it can bring all claims if the court has jurisdiction. This applies to plaintiff’s claims as well as defendant’s counterclaims (e.g., suing plaintiff) or cross-claims (e.g., D v. D or P v. P).

Question 20

Counterclaims:

Compulsory counterclaim

permissive counterclaim

Answer 20

Federal law recognizes compulsory counterclaims where defendant must bring a counterclaim if it arises out of the same transaction or occurrence or defendant loses the right to bring the claim later.

A permissive counterclaim (i.e., one not arising out of the same transaction or occurrence) may be filed but does not have to be filed.

Question 21

Cross Claims

Answer 21

Cross-claims: A cross-claim is a claim asserted by one party against a coparty (i.e., D v. D or P v. P). It must arise out of the same transaction or occurrence as the initial claim. A cross-claim is not compulsory.

Question 22

Joinder of Parties

Plaintiffs joining plaintiffs:

Answer 22

plaintiffs may sue together if they assert a right to relief jointly, severally, or in the alternative with respect to claims arising out of the same transaction or occurrence and involving a common question of law or fact.

Question 23

Joinder of Parties

Defendant adds defendant:

Answer 23

A defendant may implead a new claim against a new party if that party may be liable to defendant for part or all of the recovery. This must be filed within 14 days of serving the answer, otherwise leave of court is required.

Question 24

Intervention: A movant may intervene as a matter of right if:

Answer 24

(1) it has an interest related to the property or transaction that is the subject of the action,
(2) disposition without the movant may impair or impede the movant’s ability to protect its interest, and (3) its interest is not adequately represented by the existing parties. The motion must be timely made.

A court may grant permissive intervention if the party has a claim or defense that shares a common question of law or fact with the main action.

Question 25

Interpleader:

Statutory interpleader

Answer 25

This occurs when the holder of a property subject to conflicting claims (usually an insurance company that holds a common fund) may file a lawsuit as a plaintiff and join all claimants to avoid the possibility of double liability.

Under statutory interpleader, $500 is enough and minimal diversity is enough (i.e., if there is diversity between any two of the claimants) to get into federal court.

Question 26

Class actions: Mnemonic requirements: CANT

Class Action Fairness Act CAFA requirements

Answer 26

Requirements include: Commonality, Adequacy, Numerosity, Typicality, and (with common question suits) plaintiffs need to show superiority and that common questions predominate.

The Class Action Fairness Act (CAFA) allows a federal court to have jurisdiction over a class action if there are 100 or more plaintiffs seeking over $5 million and they have minimal diversity.

Question 27

Preliminary measures: temporary restraining order, TRO

Answer 27

notice to the other party is not needed. This is a stopgap measure that should not last longer than 14 days unless good cause is shown.

Question 28

For a preliminary injunction requirements

Answer 28

, notice must be given to the adverse party. A preliminary injunction is equitable relief with the object of preserving the status quo.

Question 29

Discovery:

Answer 29

Parties may discover anything that is relevant and not privileged.
Parties can use interrogatories (25 per side), depositions, and requests to admit.

Tip: depositions and subpoenas are the only methods that may be used on a nonparty.

Question 30

work product

Answer 30

Work product (prepared in anticipation of litigation) is not discoverable unless there is a substantial need and undue hardship. However, an attorney’s mental impressions are never discoverable.

Question 31

Conferences and disclosure:

In federal court the 26(f) conference is where initial disclosures of DISS

Answer 31

: In federal court, the 26(f) conference is where initial disclosures of (DISS) Damages calculation, Insurance agreements, the identity of Supporting witnesses, and Supporting documents are made and a discovery plan is outlined.
Tip: unfavorable witnesses or documents do not need to be disclosed.

Question 32

Conferences and disclosure

16(b) conference

Answer 32

> > 16(b) conference: Next, the 16(b) scheduling conference is held. The court enters a scheduling order and deadlines for motions.

Question 33

> > Pretrial disclosures:

Answer 33

30 days before trial, parties must disclose the identity and reports of experts, the names of witnesses to be called at trial, and documents and depositions the parties plan to offer at trial.

Question 34

Rule 11 sanctions

Answer 34

Rule 11 sanctions are made if an improper paper is presented to the court. However, if a motion is made by a party to impose Rule 11 sanctions, that party must give the other party 21 days to withdraw the offending paper prior to filing the motion with the court.

Question 35

State law in federal court:

Answer 35

If a case is in federal court under diversity jurisdiction, federal law generally applies to procedural issues.

Tip: this includes the Federal Rules of Evidence or Civil Procedure, when to bring a class action, and the right to a jury trial.

Question 36

Generally, state law applies to __________ issues.

examples

Answer 36

substantive

Tip: this includes which party has the burden of proof, which statute of limitations applies, caps on damages, elements of claims, and choice of law rules.

Question 37

Federal common law

Answer 37

Federal common law is applied where Congress has given the courts the power to develop law (e.g., bankruptcy law, admiralty, and civil rights) or

where a federal rule is necessary and state law would frustrate federal objectives. (This latter category is very narrow and usually comes up when a case would directly affect the U.S. government.)

Question 38

The Klaxon doctrine:

Answer 38

A federal court sitting in diversity must apply the choice of law approach prevailing in the state where it sits.
Tip: this is a MBE favorite!

Question 39

Jury trial—Seventh Amendment:

Answer 39

A jury pool must be taken from a cross section of the community.
Tip: the jury itself does not need to be diverse.

Question 40

Jury trial request:

Time to request?

Answer 40

For an issue triable by jury, a party can demand a jury trial by serving the other parties a written demand (which can be in a pleading)
“no later than 14 days after the last pleading directed to the issue is served.” A proper demand may be withdrawn with all parties’ consent.

Question 41

Jury Number:

Answer 41

A jury must begin with at least six and no more than 12 members.
Unless the parties agree otherwise, the verdict must be unanimous and returned by a jury of at least six.

Question 42

At what point in the trial may a party file and furnish to every other party written requests for jury instructions?

Answer 42

At the close of the evidence, a party may file and furnish to every other party written requests for the jury instructions.

Question 43

Objecting to jury instructions:

Answer 43

a party who objects to the instructions must do so in a timely manner, on the record, stating the matter objected to and the grounds.

Question 44

Plain error

Answer 44

: an appellate court may consider a plain error in the instructions, even if it has not been properly preserved or objected to, if the error affects substantial rights.

Question 45

DIRECTED VERDICT (JUDGMENT AS A MATTER OF LAW—JMOL)

Answer 45

If there is no substantial evidence to support a verdict for the nonmoving party, a directed verdict will be given. The court looks at whether plaintiff has met its burden of production.

Question 46

When may a defendant file a motion for JMOL?

Answer 46

Defendant may file this motion after plaintiff rests its case.
Either party may file it after defendant rests its case.

Question 47

RENEWED JMOL

When must a A renewed JMOL be filed?

Answer 47

Under federal law, the party must have already made a motion for JMOL at some point. Here, the party is renewing it and must show the evidence is insufficient as a matter of law to support the jury’s verdict.

Within 28 days of entry of the jury’s verdict

Question 48

Motion for a new trial

When must it be filed?

Answer 48

A new trial is granted if there were errors in the trial that tainted the jury’s decision-making or if the jury’s decision was against the great weight of evidence.

It also may be granted if the verdict is excessive (i.e., remittitur) or inadequate (i.e., additur, which is not recognized by federal courts).

must be filed Within 28 days of the entry of the jury’s verdict. The court may even order a new trial on its own

Question 49

Relief from Judgment

must be filed within ?

Answer 49

If there are circumstances like mistake, fraud, or new evidence that could not have been discovered, the court may grant relief from judgment.

Generally, within one year of the judgment (but there are exceptions, e.g., fraud).

Question 50

Appeal of final judgments

must be filed within?

Answer 50

Final judgments generally are appealable (exceptions: preliminary injunctions, interlocutory orders, and collateral matters). Orders granting a directed verdict or denying a new trial are appealable.

Generally, within 30 days after entry of judgment.

Question 51

Anytime through trial, the following motions may be brought:

Answer 51

• Failure to join a necessary party
• Judgment on the pleadings
• Failure to state a valid claim or defense

Question 52

Appeal

Answer 52

Bring any time at all, even on appeal:

Lack of subject-matter jurisdiction

Question 53

Bring in pre-answer motions:

Answer 53

• More definite statement

- Motion to strike

Question 54

Bring in first answer or motion:

Answer 54

• Lack of personal jurisdiction
• Insufficient process/service
• Venue
• Affirmative defenses

Question 55

Motion for summary judgment:

Answer 55

The question is whether there is a genuine issue of material fact. The moving party must show there is no genuine issue of material fact. The burden then shifts to the nonmoving party, which must show there is a genuine issue of material fact.

The motion is looked at in the light most favorable to the nonmoving party.

Tip: the court will deny the motion if the case involves something subjective like motive, intent, or credibility.

Question 56

Failure to state a claim upon which relief can be granted:

Answer 56

a defendant brings this motion, which essentially states, even if everything plaintiff says in its complaint is true, there is no recognized violation of any legal rights.

Question 57

default if no timely answer

Answer 57

A default is entered by a clerk if there is no timely answer.
Tip: The default itself does not give plaintiff any rights to collect money. Plaintiff must seek a default judgment.

Question 58

Default judgments

Answer 58

Default judgments are made by a clerk for a “sum certain” (and can be without notice) or by a judge (which requires seven-days’ notice if defendant has appeared).

Question 59

No progress dismissals:

Answer 59

These usually are with prejudice.

Tip: “with prejudice” means that the lawsuit cannot be refiled.

Question 60

Involuntary Dismissals

Answer 60

Involuntary dismissals (e.g., for failing to comply with a court order) usually are with prejudice.

Question 61

voluntary dismissal: general rule

exception

Answer 61

Voluntary dismissals by plaintiff generally are without prejudice.

Exception—two dismissal rule: if plaintiff voluntarily dismisses a case twice, the second dismissal is with prejudice and plaintiff cannot refile the lawsuit or one that arises out of the same facts.

Question 62

Res judicata or claim preclusion requirements

Answer 62

Same claim
Same Parties
Final Judgment on the merits

Question 63

Res judicata: (claim preclusion) Same Claim requirement

Answer 63

Use the transaction or occurrence test: If it was or could have been asserted because it was part of the same transaction or occurrence, it is the same claim.
Tip: compulsory counterclaims are also barred.

Question 64

Res judicata: (claim preclusion) Same parties requirement

Answer 64

The parties must be the same or in privity.

Question 65

Res judicata: (claim preclusion) Final judgment requirement

Answer 65

This means it is not modifiable (e.g., child custody, alimony, etc.).

Question 66

Res judicata: (claim preclusion) on the merits requirement

Answer 66

This includes a full trial, a dismissal with prejudice, claims decided on summary judgment or JMOL, or default or consent judgments.
Tip: a judgment may not look like it is “on the merits,” but it still may be considered to be for these purposes (e.g., a dismissal with prejudice for failing to comply with a discovery order is “on the merits”).

Question 67

Collateral Estoppel: Issue preclusion requirements

Mnemonic SAAN

Answer 67

Same Issue
Actually litigated
Actually decided
Necessary

Question 68

Collateral Estoppel: Issue preclusion

same issue

Answer 68

SAME ISSUE

The issues must be exactly the same

Question 69

Collateral Estoppel: Issue preclusion

Actually litigated

Answer 69

The issues need to be actually raised and litigated

Question 70

Collateral Estoppel: Issue preclusion

Actually decided

Answer 70

The issues need to be actually decided in trial

Question 71

Collateral Estoppel: Issue preclusion

Necessary

Answer 71

The decision must be “necessary” to the court’s judgment.

Question 72

Nonmutual collateral estoppel

Answer 72

Nonmutual collateral estoppel allows a party to invoke collateral estoppel against a party who litigated and lost on an issue in a prior action.

Question 73

Defensive nonmutual estoppel

Answer 73

Defensive nonmutual estoppel means issue preclusion may be raised as a shield by a new defendant.

Question 74

offensive nonmutual estoppel

Answer 74

Some states do not allow offensive nonmutual collateral estoppel where it can be used as a sword by a new plaintiff (but federal law allows this).