Civil Procedure MBE

Question 1

When can amendment be done without leave of court

Answer 1

An answer can be amended once as a matter of course within 21 days of
serving the answer or
being served with a responsive pleading or Rule 12(b) motion.

Question 2

When can a JMOL be made

Answer 2

A motion for JMOL can be made before the case is submitted to the jury
but only after the nonmovant has had the opportunity to present its case.

Question 3

Which interlocutory orders are appeallable immeditely as a matter of right?

Answer 3

1. orders granting, modifying, refusing, or dissolving injunctions
2. orders appointing or refusing to appoint receivers and
3. decrees determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed

appeal must be made within 30 days of order

Question 4

What is the deadline to file a notice of appeal?

Answer 4

Deadline to file a notice of appeal
within 30 days
OR
within 60 days for
Federal government,
agency, or officer/employee
Final judgment
entered
File notice of appeal
with district court clerk

Question 5

When does the federal rule analysis apply? What is the analysis?

Answer 5

1. In diversity cases when it is unclear whether an issue is substantive or procedural and a conflict exists between the state and federal law where federal law directly addresses the issue
2. Court must apply a valid federal law so long as the law is arguably procedural AND does not abridge, modify, or enlarge a substantive right.

Question 6

An appellate court may hear an appeal from a district court order that grants or denies class action certification. If the appellate court permits the appeal, the district court proceedings are stayed pending the appeal only when

Answer 6

ordered by the district court or the appellate court.

Question 7

Special damages (e.g., loss of business and loss of earning capacity) MUST

Answer 7

be specifically stated in a pleading

Question 8

Final process to enforce a judgment solely for the payment of money may be by:

Answer 8

1) Execution;
2) Writ of Garnishment; or
3) Other appropriate process/proceedings

Question 9

Orders for pretrial conference must be served at least _________ before the date set for the conference.

Answer 9

20

Question 10

How many requests for admissions and how many interrogatories may a party generally propound?

Answer 10

30

Question 11

When must discovery be completed in an expedited trial?

Answer 11

within 60 days of court order adopting stipulation

Question 12

Two or more claims for damages may be added together to reach the jurisdictional limit of the circuit court as long as those claims _________________.

Answer 12

Arise out of the same transaction

Question 13

In computing any period of time prescribed or allowed by the rules of civil procedure, by order of the court, or by any applicable statute, is the day of the act, event, or default from which the designated period of time begins included?

Answer 13

NO

Question 14

What are the three classifications of service of process?

Answer 14

1) Personal,
2) Substituted, and
3) Constructive

Question 15

If a defendant makes a written settlement offer that is served on the plaintiff at least 45 days prior to trial, and the plaintiff rejects or fails to respond to the offer within 30 days, then the defendant will be entitled to recover reasonable costs and attorney’s fees incurred from the date of the offer if:

Answer 15

i) Judgment is one of no liability; or
ii) Judgment obtained by plaintiff is at least 25 percent less than such offer

Question 16

Under the general venue statute, actions must be brought only in the county in which:

Answer 16

(1) Defendant resides (2) Cause of action accrued; or (3) Contested property is located.

Question 17

If an attorney intends to use its work product at trial, must it be disclosed?

Answer 17

YES

Question 18

What three categories of cases must the district court of appeals review by appeal?

Answer 18

1) Trial Court final orders NOT directly reviewable by supreme court or circuit court,
2) General law administrative actions, and
3) Certain non-final orders of circuit courts

Question 19

Who is allowed to serve an answer to a complaint or cross-claim or a reply to a counterclaim within 40 days after service?

Answer 19

i) State of Florida;
ii) Agency of the state; and
iii) State officer/employee sued in an official capacity

Question 20

When can a voluntary dismissal not be exercised by a party?

Answer 20

1) Property has been seized or is in court custody,
2) Fraud is committed on the court (counterclaim/cross-claim served before notice of dismissal), or
3) Motion to amend/add a counterclaim/cross-claim to the answer has been served (unless it can remain pending or defendant consents to dismissal)

Question 21

May a plaintiff join a liability insurer in a civil action against a defendant insured by the company?

Answer 21

NO

Question 22

What is the Statute of Limitations for an action based on negligence?

Answer 22

2 years

Question 23

Personal jurisdiction 3 types:

Answer 23

(1) In personam jurisdiction
* Voluntary Presence
* Domicle
* Consent

(2) In rem jurisdiction
(3) Quasi-in-rem jurisdiction

Question 24

What are the requirements of a complaint?

Answer 24

(i) A short and plain statement
* of the grounds that establish the court’s subject matter jurisdiction and
* of the claim establishing entitlement to relief; and
(ii) A demand for judgment for the relief sought by the pleader.

Question 25

When must a party be joined as a compulsory joinder under Rule 19?

Answer 25

a person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction or destroy venue must be joined as a party if not doing so would:

(i) prevent complete relief to existing parties

(ii) Disposition in the absence of that person may impair the person’s ability to protect his interest; or

(iii) existing parties would be left subject to a substantial risk of multiple or inconsistent obligations

Question 26

A temporary restraining order may issue without notice to the adverse party if:

Answer 26

(i) The moving party can establish, in an affidavit or a verified complaint, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition; and

(ii) The movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.

Question 27

Under the Erie Doctrine, what law governs in a federal question claim?

Answer 27

ederal substantive and procedural law will control, as well as federal common law

Question 28

What are the three types of class actions?

Answer 28

(1) Risk of Prejudice: The class is maintainable if the prosecution of separate actions would
* create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or
* if prosecution of the claims through separate actions would impair the interests of the class members.

(2) Final Equitable Relief: A class seeking final injunctive or declaratory relief may be certified if the class **shares a general claim **against the opposing party.

(3) Common Legal or Factual Questions: A class can be certified if** questions of law or fact that are common to the class members predominate over any questions affecting only individual members, AND a class action is the superior method **for bringing about a fair and efficient adjudication of the controversy.

Question 30

What is a judgment as a matter of law, and what is the standard used in deciding these motions?

Answer 30

1. Party fully heard
2. court may grant a motion for judgment as a matter of law resolving the issue against a party if the court finds that there is insufficient evidence for a jury reasonably to find for that party

The court must do the following in favor of the opposing party
1. view the evidence in the light most favorable to the opposing party and
2. draw all reasonable inferences from the evidence in favor of the opposing party.

Question 31

Under Rule 20 permissive joinder, does the defendant to be joined have to meet the requirements of federal subject matter jurisdiction?

Answer 31

If brought under diversity jursidction YES
- there must be complete diversity between the plaintiffs and the defendants, and
- each claim must exceed the jurisdiction amount in controversy of $75,000.

Question 32

What are the mandatory disclosures?

Answer 32

Rule 26(a) requires the parties to make:

(i) Initial disclosures;

(ii) Disclosures of expert testimony 90 days before trial; and

(iii) Pretrial disclosures 30 days before trial.

Question 33

When is a default vs. a default judgment entered against a party?

Answer 33

DEFAULT
* occurs when a party has failed to plead or otherwise defend an action, and that failure is shown by affidavit or otherwise; the court clerk must then enter the party’s default.

DEFAULT JUDGMENT
* Once a default is entered against a party, the plaintiff may seek a default judgment from the court clerk
* * (if relief sought is a sum certain or an amount that can be made certain by computation and the defaulting party is not a minor or incompetent)
* or otherwise apply to the court itself

Question 34

What interlocutory orders are immediately appealable?

Answer 34

(i) An order granting, modifying, refusing, or dissolving an injunction;

(ii) An order appointing or refusing to appoint a receiver; and

(iii) A decereedetermining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed

Question 35

If a case was not removable but now is, how much time does the defendant have to remove?

Answer 35

once the defendant receives a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is now removable —> D has 30 days to file a notice of removal

Question 36

Are attorney’s fees part of the amount in controversy?

Answer 36

No, but if they were made recoverable by contract or statute, theya re

Question 37

Are Punitive Damages allowed to be calculated in the amount in controversy?

Answer 37

Yes

Question 38

A partnership is considered a citizen of each state in which each of its partners is domiciled, does it matter whether one partner is a general vs limited partner?

Answer 38

It does not matter, it is where they all decide

Question 39

May a plain error with regard to the jury instructions that affects substantial rights be reviewed by the appellate court even though it was not preserved?

Answer 39

Yes

Question 40

What is a compulsory counter claim? Does it have to meet
the statutory jurisdictional amount requirement to be considered by the court?

Answer 40

a claim arising out of the same transaction or occurrence as the plaintiff’s claim
does NOT have to meet the statutory jurisdictional amount requirement bc compulsory so court has supplemental jurisdiction

Question 41

Does a defendant’s voluntary appearance to object to personal jurisdiction confer personal jurisdiction over a defendant on a court?

Answer 41

NO

Question 42

Where is venue proper when a case is removed from state court?

Answer 42

venue is proper in the federal district court in the district where the state action was pending

Question 43

When a defendant files a pre-answer motion under Rule 12, such as a motion to dismiss for lack of personal jurisdiction, the defendant has how many days after receiving notice of the court’s decision on this motion to file its answer?

Answer 43

14 days

Question 44

An amendment to a pleading will relate back to the date of the original pleading when

Answer 44

the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading

Question 45

Does a class member who objects to the proposed settlement have the right to appeal the court’s approval of it?

Answer 45

YES

Question 46

When a trial judge gives an erroneous jury instruction to which the adversely affected party failed to make a timely objection, the appellate court may nevertheless consider the matter if

Answer 46

the mistake constitutes a plain error that affects the party’s substantial rights

Question 47

The appropriate standard of review by the appellate court for a legal ruling is

Answer 47

de novo

Question 48

The abuse of discretion standard for appellate court review of a trial judge’s ruling is appropriate when

Answer 48

the ruling is a matter over which the trial judge has discretion, such as whether evidence is admissible or sanctions should be imposed.

Question 49

A trial court’s findings of fact, including a master’s findings that have been adopted by the court, are subject to review under which standard?

Answer 49

the “clearly erroneous” standard

Question 50

For purposes of claim preclusion, is a default judgment a final judgment?

Answer 50

Yes

Question 51

What is the merger aspect of claim preclusion?

Answer 51

When a judgment is in a party’s favor, the entire claim merges with the judgment and is extinguished. Under the transactional approach, a subsequent claim with respect to all or any part of the transaction, or series of connected transactions, out of which the original action arose is barred

If there is a car accident and x sues y for property damage and prevails, x cannot then due y for personal injuries bc x’s claim MERGED and subsequent claims are barrred

Question 52

Which law determines whether civil litigants have a right to a jury trial on legal claims?

Answer 52

FEDERAL

Question 53

diverse citizenship cannot be established if the suit involves stateless persons—which are

Answer 53

(1) noncitizens present in the U.S. but not citizens of a foreign country or
(2) U.S. citizens domiciled in a foreign country

Question 54

Due process only permits application of a long-arm statute when:

Answer 54

1. the plaintiff’s claim arises from or is closely related to the defendant’s minimum contacts with the forum state and
2. the exercise of jurisdiction complies with notions of fair play and substantial justice

Question 55

Specific Jurisdiction

Minimum contacts exist when the defendant avails itself of the state’s protections and benefits so that it should reasonably foresee being sued there.

A subsidiary’s minimum contacts may be imputed to its parent corporation when the subsidiary is acting as

Answer 55

the parent corporation’s agent or alter ego

Question 56

When venue is proper, the district court can nevertheless transfer venue for the convenience of parties and witnesses and in the interest of justice. Transfer may be which judicial district?

Answer 56

Any judicial district (1) where the suit could have been originally brought or (2) to which all parties have consented

Question 57

Does the doctrine of forum nonconvenience have anything to do with transfering venue?

Answer 57

NO
forum non conveniens allows a federal court to dismiss a case—even when venue is proper in that court—if a state or foreign judicial system is better suited to hear the dispute

Question 58

What are the service of process requirements to properly serve a defendant?

Answer 58

someone who is at least 18 years old and not a party to the suit serves the defendant with a summons and complaint

Question 59

When may a party dismiss crossclaim, counterclaim, or third-party claim without court order?

Answer 59

1. all parties who have appeared sign stipulation of dismissal or
2. claimant files notice of dismissal before
   * (1) responsive pleading (eg, answer) served or
   * (2) evidence introduced at hearing or trial (if no responsive pleading served)

Summary judgment motion is NOT responsive pleading

Question 60

Although a final judgment must generally be entered before an appelllate court has jurisdiction, what is an exception to this rule?

Answer 60

The collateral order doctrine
An interlocutory order will be characterized as final and immediately appealable if three elements are met:

1. The order conclusively resolves an important issue
2. That issue is separate from the merits of the underlying claim
3. The order cannot be effectively reviewed on appeal from a final judgment

Question 61

Appeals

What are some examples of collateral orders (the exception to the final judgment rule which makes it appeallable)

Answer 61

District court orders:

• denying state 11th Amendment immunity
• denying government official/employee immunity
• vacating attachment of vessel
• refusing to require security bond pursuant to state law
• remanding action to state court based on abstention

Question 62

forum-defendant rule prohibits removal when:

Answer 62

subject-matter jurisdiction arises solely from diversity jurisdiction and
a defendant is a citizen of the state in which the case was filed (i.e., the forum state)

diversity jurisdiction seeks to protect out-of-state defendants from potential bias in state courts. Since in-state defendants do not face the same risk of bias, they cannot remove to federal court bc they are being sued in THEIR OWN state

Question 63

A notice of appeal must generally be filed with the district court clerk within

Answer 63

30 days after the entry of final judgment or an immediately appealable order

Question 64

If a claim involves multiple parties/claims a district court may enter final judgment as to fewer than all claims or parties if it

Answer 64

expressly determines that there is no just reason for delay –> bc final judgment then it becomes immediately appealable

Question 65

An appellate court has discretion to permit an appeal from an order granting or denying class action certification if the petition for such an appeal is filed with the clerk of the appellate court within

Answer 65

14 days after the order is entered

Question 66

A court can impose sanctions for violations of Federal Rule of Civil Procedure 11(b), which requires that

Answer 66

SIGNED
* every filing with the court be signed by an attorney or unrepresented party
CERTIFIED
* certifying that all factual assertions have or will have evidentiary support after a reasonable opportunity for further investigation or discovery

Question 67

Can a federal court exercise jurisdiction over a domestic relations matter if diversity jursidction is met?

Answer 67

NO
Federal courts have traditionally declined to exercise jurisdiction over domestic-relations matters, such as spousal support, even though the requirements for diversity jurisdiction are otherwise met.

Question 68

If both plaintiff’s meet diversity of citizenship but only one meets the AIC, can the court hear the other plaintiff’s claim too?

Answer 68

Yes but only if the other plaintiff’s claim is subject to supplemental jurisdiction if there is a common nucleus of operative fact

Question 69

Can two plaintiff’s aggregate their claims to meet AIC?

Answer 69

NO unless the multiple plaintiffs are enforcing a single title or right in which they have a common or undivided interest

Otherwise
* Each must individually meet the AIC, but if one meets the AIC, then supplemental jurisdiction may be exercised over the one that does not meet AIC if common nucleus of operative fact

Question 70

For factual questions what is the standard of review?

Answer 70

Clearly Erroneous

Question 71

What is the rule for personal jurisdiction over an impleaded party? hint: bulge provision

Answer 71

a federal court has personal jurisdiction over a third-party defendant, joined under Rule 14, who is served within a U.S. judicial district and not more than 100 miles from the court from where the summons is issued (the federal district court), even if state law would otherwise not permit such service.

Question 72

When the judge is the finder of fact, does it have to issue a written opinion?

Answer 72

NO When a judge is the finder of fact, the judge must find the facts specially and state its conclusions of law separately. A judge may do so on the record rather than in a written opinion.

Question 73

When is an appeals court able to hear a writ of mandamus or writ of prohibition?

Answer 73

When
(1) an appeal would be INSUFFICIENT to correct the problem and
(2) the courts actions constiute a SERIOUS ABUSE of power that must be immediately corrected

Question 75

Motion for Summary Judgment must be filed within

Answer 75

30 days after the close of evidence

Question 76

Can a non-movant rely on pleadings in opposing a summary judgment motion?

Answer 76

No because those are general allegations and the non movant must
* show specific disputed facts (through affidavits, declarations, discovery orother materials) or
* request that the court postpone consideration until additional dsicovery cna take place including an affidavit or declaration for support

Question 77

Imposition of sanctions is reviewed on appeal under

Answer 77

abuse of discretion because it is a discretionary ruling

Question 78

Does Forum non-conveniens have to do with transfering a case from one state court to another?

Answer 78

NO it has to do with staying or dismissing a case even when venue is proper bc a foreign or other state court is better suited

Question 79

if a district court certifies in writing (i) that an order involves a controlling question of law as to which there is substantial ground for difference of opinion, and (ii) that an immediate appeal from the order may materially advance the ultimate termination of the litigation, then a court of appeals has discretion to permit an appeal to be taken from such order –> what is the time to appeal?

Answer 79

10 days after the entry of the order

Question 80

Provide examples of substantive law

Answer 80

elements of a claim or defense
Statute of limitations
Burden of proof

Question 81

Are all cross claims permissive?

Answer 81

YES

Question 82

If one defendant files a cross claim against a second defendant, the second party must file any claim that that party has against the first party that arises out of the same transaction or occurrence as the first party’s claim —–> what is that defendant’s claim against the first defendant called?

Answer 82

a COUNTER CLAIM
The first defendant is an opposing party with respect to this mandatory claim; accordingly, the second defendant’s claim is a compulsory counterclaim.

Question 83

Are state malpractice claims based on federal patent law sufficient to raise a federal question?

Answer 83

NO, not if the issue on federal law raises only a hypothetical question linked to the malpractice claim

Question 84

A party may make inconsistent factual allegations in a complaint only if thre is a —– for believing either statement

Answer 84

good faith basis