CivPro MBE Decoded Starred Topics :)

Question 1

How do you determine the citizenship of a child?

Answer 1

Through their domicile, which is the same as their parents domicile

Question 2

How do you determine citizenship of representatives?

Answer 2

Representatives of minors, decedents, and incompetent parties is determined by their own citizenship, NOT by the citizenship of their legal representatives

Subject to the rule for minors

Question 3

Citizenship: Unincorporated Associations

Answer 3

Unincorporated associations are citizens of every state in which each partner/member is a citizen

Question 4

Where is venue proper?

Answer 4

1. Where any defendant resides [if all defendants in same state]
2. Substantial part of the events or omissions giving rise to the claim occurred
3. If first two not metl where any defendant is subject to personal jurisdiction

Question 5

Notice

Answer 5

A defendant must be properly notified of a pending action by a reasonable method and must be given an opportunity to be heard.

Question 6

Service of Process

Answer 6

Provide a defendant with notice of a pending action by delivery to the defendant of a summons and a copy of the complaint. Must be served within 90 days of filing the case.

Question 7

Who can do service of process?

Answer 7

• Anyone who is at least 18 and
• Not a party to the action

Question 8

How can you do service of process?

Answer 8

• Following state law
• Out of state service: If the forum state law permits out of fstate service
• Service on a person can be done by personal service, left at the defendants dwelling or abode, or service to an authorized agent

Question 9

What are the 12b “use it or lose it” defenses?

Answer 9

Must raise in first respponse or are deemed waived:
* Lack of personal jdx
* Improper venue
* Insufficient process (something wrong with papers)
* Insufficient service of process (papers not given properly)

May raise after first response:
* Lack of subject matter jdx
* Failure to state a claum
* Failure to join an indespensable party

Question 10

How long does a defendant have to respond to a complaint?

Answer 10

21 Days (21 savage)

Question 11

What is impleader?

Answer 11

A mechanism a defending party can use to add a third party defendant to seek indemnity, subrogation or contribution.

1. Permissive: Impleader is permissive, not required!
2. Supplemental jdx wil apply
3. Venue need not be proper for the third party defendant

Supplemental jx applies bc naturally, if seeking indemnity, same T/O!

Question 12

When is a party indispensable?

Answer 12

A party is indispensable if they are necessary and unable to be joined. When a party is indispensable and can’t be joined, the case must be dismissed. Court will consider

1. Extent of prejudice to absentee/existing party
2. Extent to which prejudice can be lessened or avoided
3. Adequacy of judgement in persons absence
4. Adequacy of plaintiff’s remedy if dismissed

Question 13

Motion for summary judgement

Answer 13

Will be ordered where the moving party can establish there is no genuine dispute of material fact and the movant is entitled to judgement as a matter of law.

1. Evidence will be viewed in light most favorable to nonmoving party
2. Evidence must be comprised of firsthand knlwedge or declarant who is competent to testify (Credibility not weighed)
3. MSJ may be filed no later than 30 days after close of discovery

Don’t get tricked by facts of opinions/credibility. Not relevant to MSJ!

Question 14

Right to a Jury Trial

Answer 14

7th Amendment preserves a right to a jury trial in civil actions at law.

• Judge decides equity questions (injunction, specific performance)
• Legal issues decided first by the jury
• P must demand jury in writing no later than 14 days after service of last pleading that they are raising a triable issue and demand it. Otherwise, waived!

Question 15

Jury Composition

Answer 15

• Each side has unlimited challenges on voir dire cor cause
• Each side has 3 peremptory challenges (without reason)
• Jury Polling: After a verdict is returned but before jury is discharged, court must poll jurors individually if a party requests it. If they find the jury lacks unanimity bc one didn’t agree, court can ask them to deliberate further or order a new trial

Question 16

Judgement as a matter of law

Answer 16

• A reasonable jury would not have found for the party
• Evidence viewed in light most favorable to nonmoving party
• Must occur before the court submits it to the jury but after the nonmovant has been fully heard

Some MBE’s call it directed verdict. Modernly, his name is JMOL.

Question 17

Bench Trial

Answer 17

• When the court is required to make findings of fact and conclusions of law
• The findings of fact/law must be stated separately but may be stated on the record or in an opinion or decision filed by the court
• Exception: Court does not need to make findings of fact or conclusions on a Rule 12 motion or Rule 56 (Summary Judgement)

Question 18

Motion for a New Trial

Answer 18

• Must be within 28 days after entry of judgement

Grounds for a new trial include:
* Prejudicial/plain error
* New evidence that couldn’t be obtained even with due diligence
* Prejudicial Misconduct
* Judgement is against the great weight of the evidence and
* Excessive Damages or inadequate damages

Question 19

Only final judgements may be appealed. What are the exceptions that allow an appeal before there is a final judgement?

Answer 19

• Movant seeks an interlocatory appeal
• Movant seeks to appeal injunction
• Collateral order
• Writ of Mandamus or Prohibition
• Partial final judgement