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Bar Exam > Civil Procedure MEE > Flashcards

Civil Procedure MEE Flashcards

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1
Q

Four Ways to get SMJDX

A

1. Federal Question–federal question raids on face of well pled complaint. NOT in defense.

  1. Diversity– a. complete diversity between all Ps and All Ds (meaning no P/D overlap in state dom) b. amount in controversy $75K 2nd P can come in with supp claims so long as they don’t ruin diversity
  2. Supplemental–start with fed Q JDX. JDX over additional state law claims over which would not normally have SMJ, so long as they come from COMMON NUCLEUS OF OPERATIVE FACTS -a 2nd P might be able to enter suit and bring state law claims -D can bring a state crossclaim against other D so long as all still CNOF
  3. Removal. D may remove from state to federal so long as basis for fed JDX Also need: If based on diversity, only be removed fed court if no D resident of state in which originally filed Must file removal w/in 30d of receiving complaint all Ds must consent to removal
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2
Q

Domicile For JDX purposes

A

individual is domiciled wherever they live and have intent to remain indefinitely

Look at: where job is, own property

corp: where incorporated

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3
Q

$ amount required for diversity federal JDX

A

OVER $75K. Includes both

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4
Q

supplemental JDX

A

JDX over additional state law claims over which would not normally have SMJ, so long as they come from COMMON NUCLEUS OF OPERATIVE FACTS.

If starts with fed Q JDX.

  • a 2nd P might be able to enter suit and bring state law claims
  • D can bring a state crossclaim against other D so long as all still CNOF

If starts with diversity JDX,
2nd P can join state claim if CNOF AND
CANNOT RUIN DIVERSITY! don’t worry about $75K
-D can bring crossclaim, already there so don’t worry about ruining diversity

Courts MAY reject SJDX IF

  • complex Qs of state law
  • if fed law claims dismissed, only state left
  • any other compelling reason to define SJDX
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5
Q

Courts MAY reject SJDX IF

A
  • complex Qs of state law
  • if fed law claims dismissed, only state left
  • any other compelling reason to define SJDX
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6
Q

Removal JDX rule

A

D may remove from state to federal so long as basis for fed JDX
Also need: If based on diversity, only be removed fed court if no D resident of state in which originally filed
Must file removal w/in 30d of receiving complaint
all Ds must consent to removal

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7
Q

Ways to get personal JDX

A

3 Traditional bases

  1. present in a forum and served there OR
  2. domiciled there OR
  3. consent to PJDX in that state

OR! if the above not meant

  1. Long Arm Statute–can court pull this D into court in this state?
  2. Look at Constitutional Requirement
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8
Q

Long Arm Statue allows to get D to extend allowed by Constitution. What is that?

A

Due process requires:

  1. minimum contacts with forum state
    a. purposeful availment. Purposeful and substantial to where D should foresee being sued in that state. USE THE FACTS
  2. relatedness specific OR general JDX over claim
    a. specific : when lawsuit arises out of D’s conduct in forum state
    b. general: D is “essentially at home” in forum state.
    corporation: where incorporated, AND principal place of business “nerve center”
  3. Fairness:
    a. interest of forum state
    b. burden on D to come to state (corporate can bear cost better than individual)
    c. interest of various states
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9
Q

VENUE. wtf even is it

A

which federal district court, geographically, should the lawsuit come in
3 ways proper:
1. in any judicial district in which any D resides so long as all reside in same state
2. substantial part of events occurred or which property at issue is situated
3. FALLBACK: if not the other 2: in any judicial district where any D is subject to PJDX

Sometimes can transfer

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10
Q

When can transfer venue?

A
  1. see if original court was proper
  2. THEN ASK:
    a. would there be personal JDX
    b. would there be SMJDX
    c. would venue be appropriate
    d. court may still decline if not in interest of justice
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11
Q 
ERIE DOCTRINE (lightly tested, simple on exam)
what to look for
A

When federal court is asked to apply a state law
–does the court apply state or federal?

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12
Q

Erie doctrine

A

If action is in court under FedQ: will apply federal substantive and procedural law

If in fed court under diversity JDX: state substantive law and federal procedural law

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13
Q

TRO: explain

A

TRO comes before a preliminary injunction
Goal: to maintain status quo before getting an injunction
Must show that immediate and irreparable injury will occur
Must show effort was made to give notice to other side, or explain why it wasn’t (but other side need not be there)
Lasts max of 14d, can be renewed

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14
Q

Prelim injunction: what and how

A

To get a PI (equitable relief), must:
-give notice to other side
will be granted:
1. likely to succeed on merits
2. irreparable harm will occur
3. balance the equities in favor: hardships to D of granting versus to P of not granting
4. PI be in best interests of public

In place for: as long as trial takes, generally

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15
Q

FRCP Rule 4 process service
corporation: who can be saved

A
  • rules governing service of process are PROCEDURAL
  • officer, managing agent, general agent, agent appointed by law to receive process
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16
Q

Erie Doctie re: process

A

If service of process, fed law overrules state in fed court

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17
Q

Rule 12 MOTIONS TIMING: when to raise

A

Lack of SMJ can be raised at ANY TIME, even on appeal
PJDX, Venue, Process: on first pre-answer motion, or answer if that’s your first motion
12b6 fail to state claim: or R19 fail to join new party: in any pleading, in motion for Judgment on leas, or at trial

18
Q

R15 amendments and relation back

A

Party may amend once by right within 21d after service on D
If beyond that, may amend by written consent from other side or by leave of court

Relation back: related to SoL and added claim or party

19
Q

Relation back under R15 –adding claim or party

A

Amended complain can add new claim after SoL has run IF:

  • original claim was timely filed
  • new claim relates back to same transaction or occurrence T&O

Adding new party, say was still filed timely IF:
-arose came T&O
-new D must have know about complaint within 90d if filing
-new D must have known that but for a mistake, they would have been named in original suit
(Sue Joe Smith instead of John Smith, John saw it was was stoked his bro would take heat)

20
Q

R11 good faith (not heavily tested)

A

When atty files something, good faith implied
Ig given oopportunity to fix after complaint, must do so
If do not fix, then court will take action

21
Q

JOINDER R19 compulsory joinder of partier. What is it? What are the rules when it’s tried?

A

When D says “this suit cannot proceed without additional party”

  1. is that new party necessary to be joined?
    - if court cannot give complete relief w/o this party
    - if party would be harmed by non presence in court during case
    - if risk of inconsistent judgment or double liability

If yes, necessary:
-need PJDX over party
-would it ruin diversity JDX (if relevant, not here on FedQ)
If it would ruin diversity AND they are indispensable, then court must dimissis suit and tell them to file elsewhere

Can case proceed without adding that party?
If yes, then case will proceed without.

22
Q

JOINDER of CLAIMS: R13 crossclaims

A

Crossclaim: when D sues another D
Can D1 sue D2?
-When claim arises out of same T&O that was basis of the original lawsuit
-check SMJDX: fedQ, diversity, supplemental

23
Q

IMPLEADER: R14

A

D brings new D into lawsuit. Can when:
-show new impleader claim is related between original P>

24
Q

R24 INTERVENTION

A

When nonparty WANTS to join lawsuit

  1. As of right.
  2. nonparty has interest in subject matter of action
  3. action might affect their interest, and won’t have say
  4. if interest not adequately represented by current parties
  5. Permissive, ask court, who will grant IF:
  6. if statutory right to intervene
  7. If 3P has claim or defense related to original cause of action
25
Q

DISCOVERY. R26. What is discoverable?

A

IN an essay, p1 seeks something in discovery from p2, says NO.
Any nonprivileged matter relevant to claim or defense
-limited if unduly burdensome or expensive
-does not have to be admissible to be discoverable

26
Q

What privileges protect relevant material from discovery

A
  1. work product privilege–atty work product
27
Q

Exception from work product privilege

A

SHOW:

  • not available from other means (witnesses die) AND
  • substnaitally prejudiced by not getting access to the information

ONLY factual info is subject here. NOT atty’s mental impressions or opinions about it

28
Q

Expert reports –when get in discovery?

A

If will not testify, must show exceptional crumstaicnes

29
Q

How does duty to store e-info work? What are the sanctions if you fail?

A

Once litigation is anticipated, must take steps to preserve things like emails preserve electronically

Sanctions:

  • court CAN make ruling, or tell jury, to presume that info you did not preserved was unfavorable to you
  • worst case: judge could enter default judgment
30
Q

Discovery: mental and physical exams

A

If party’s mental or phsucial condition is at issue, you are entitled to get an exam of that party

31
Q

How to subpoena non-parties or their documents?

A

Non–parties: can issue subpoena
Non-party’s info: tell them to produce it, subpoena deuces cecum

32
Q

R56 summary judgment: explain it

A

no genuine dispute as to any material fact and movant is entitled to decision as matter of law

SO: if parties are arguing different factual scenarios, there is genuine dispute.

33
Q

When eentiteld to jury trial under 7A for civil matter?

A

When damages exceed $20

Must file demand for one within 14d after you’ve filed answer to complaint

34
Q

Judgment as a matter of law, or directed verdict: when can you ask

A

Close of P’s case OR close of all the evidence.

35
Q

Judgment as matter of law: when do you get one

A

Get one when no reasonable person could differ as to outcome of case

36
Q

RMJML!!! Renewed motion for judgment as a matter of law

A

MUST do a JML motion before jury verdict
THEN can renew it after jury verdict

37
Q

Appeals: when can federal appeals court hear appeal?

A

Mostly, when final judgment rendered. EXCEPTION:
-injunction denied can be appealed immediately (tested)
MORE

38
Q

Claim Preclusion AKA res Judicata

A

Final judgment on the merits precludes same parties litigating the same issue.
Usually a P asserts it
3 elements:
1. Same or very similar P AND D
2. earlier suit must have been final judgment on merits
3. new claim was already decided in first suit–same claim
[it’s rare on the bar–usually not same P and D]

39
Q

issue preclusion, AKA collateral estoppel: definition and elements to assert it

A

P sues D. Issue is decided in P’s favor. Then, new P sues same D on same issue. Asks court to decide in favor instead of retrying it.
Elements:
1. same issue
2. final judgment on merits
3. issue was essential to judgment in first suit
4. P can assert issue preclusion against D if fair.

40
Q

std of review on appeal from bench trial

A

trial judge’s findings of fact…can only be set aside ifclearly erroneous.

A finding is clearly erroneous when, although there is evidence to support it, the appellate court, based on the entirety of the evidence, is left with the definite and firm conviction that a mistake has been committed

41
Q

what does “clearly erroneous” mean

A

A lower court’s fact finding is clearly erroneous when, although there is evidence to support it, the appellate court, based on the entirety of the evidence, is left with the definite and firm conviction that a mistake has been committed

42
Q

Can a state court enforce a federal court’s judgment? Must it?

A

YES. State court must give full faith and credit to both the judgments of other state courts and to federal courts. They must treat federal court judgments as federal courts would (in terms of finality, appealing similar issues, etc).

Bar Exam (21 decks)

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