MBE 2

Question 1

Where is partnership a considered a citizen?

Answer 1

In each state where its partners is domiciled. This is true for both general and limited partnerships.

It is NOT a citizen of the state where it is registered.

Question 2

When can a federal court remand a case to state court?

Answer 2

Fed court can ONLY remand a case to the state court that the claim originated. If the claim originated in federal court, it can’t remand to state court.

Question 3

Can an out-of-state corporation be subject to personal jurisdiction because of contacts in state by an independent contractor?

Answer 3

No an OOS corp is NOT subject to PJ solely bc of in state contacts by an independent contractor.

Contacts of a nonresident employer’s agents or employees are generally imputed to the employer if the agent or employee is acting within the scope of the agency or employment.

Question 4

Will inadvertent disclosure during discovery operate as a waiver of the attorney-client privilege?

Answer 4

Inadvertent disclosure during discovery will NOT operate as a waiver of attorney-client privilege IF holder of privilege promptly takes reasonable steps to rectify error. Wait too long and you might lose the privilege!

Question 5

Can a TRO may be issued without notifying the party to be enjoined?

Answer 5

Yes, if the moving party submits an affidavit certifying reasonable efforts made to notify.

Question 6

What must a TRO contain?

Answer 6

Every order granting a TRO must state the reasons why it was issued and must detail the acts restrained.

Question 7

When should a judgment on the pleadings may be made?

Answer 7

ONLY after pleadings are closed.

Thus, if D asserted a counterclaim in its answer, P must file an answer to the counterclaim before making any motions.

Question 8

Motion for judgement on the pleadings

Answer 8

Granted if on the face of the pleadings the court finds the moving party is entitled to judgment.

Question 9

When can a final pretrial order may be amended?

Answer 9

only to prevent manifest injustice.

Question 10

Service of process for multiple Ds

Answer 10

If Ds are served at different times, and a later-served D files a notice of removal, any earlier-served D may consent even if that earlier-served D didn’t initiate removal in the timeallotted for
the earlier-served D.

Question 11

Removal Statute

Answer 11

Action can ALWAYS be removed to fed court in district where state action is pending.

Removal statute determines venue, regardless of if venue would’ve been proper if P had originally brought action in fed district court.

Question 12

In a diversity, if a court transfers a case to a district court, what choice-of-law rules apply?

Answer 12

District court where case is transferred MUST apply law that would’ve been applied in original court that transferred case. Only applies if venue is proper in the OG court.

Question 13

In a diversity on a state law claim, can fed court use its power to assess attorney’s fees as a sanction for bad faith conduct?

Answer 13

YES! during litigation, even if the law of the forum state provides that attorney’s fees may not be awarded to a successful party.

Question 14

If the forum state doesn’t allow something procedural, can the district court still do it?

Answer 14

Yes, under Erie!

Question 15

If the forum state does not allow the award of attorney’s fees, the district court can still award them?

Answer 15

YES! Even if forum state doesn’t allow award of attorney’s fees, district court can still award them if the party against whom the fees were awarded acted in bad faith. Assessment of attorney’s fees is a procedural issue, and procedural rules follow fed law under erie!

Question 16

When you’re bw state and federal law, first district court considers….

Answer 16

District court asks:

1) Is conflict bw state and fed law about issue before court? If yes,
2) Does a valid fed statute or Federal Rule apply? If NO, then
3) Should fed CL, rather than state law, be applied?

Question 17

When a district court is deciding bw applying fed CL or state law, they consider…

Answer 17

1) If failure to apply state law will lead to different outcomes in state and fed court. If yes, then court will apply state law, UNLESS affirmative countervailing fed interests are at stake that warrant application of fed law.

Question 18

When are affirmative countervailing fed interests are at stake, such that warrant application of fed law over state law?

Answer 18

If a “uniquely federal interest” is at stake and a significant conflict exists bw that interest and the operation of state law.

Question 19

preliminary injunction

Answer 19

Form of relief that requires notice to D and a hearing on if the injunction should issue.

(doesn’t need full hearing on the merits! just an opp where D can be heard)

Question 20

What can the court consider in ruling on a motion to dismiss for failure to state a claim?

Answer 20

Only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice

Question 21

If D files a motion to dismiss for failure to state a claim upon which relief can be granted AND attaches materials outside the pleadings to the motion…

Answer 21

The court MUST treat the motion as a summary judgment motion if they court considers those materials in reaching its decision on the motion.

Question 22

When MUST a court treat a motion to dismiss for failure to state a claim upon which relief can be granted as a summary judgment motion?

Answer 22

Only when materials outside the pleadings are submitted with the motion and the court considers those materials in making its decision.

Question 23

When can a P amend a pleading?

Answer 23

P may amend a complaint once as of right within 21 days AFTER being served with an answer.

Question 24

Is a crossclaim mandatory

Answer 24

NO! A party is never required to assert a cross-claim against a co-party. You can’t forfeit the right to pursue a crossclaim!

Question 25

What time of jurisdiction applies for compulsory counterclaims and the joinder of additional parties to compulsory counterclaims

Answer 25

SUPPLEMENTAL JURISDICTION! diversity is irrelevant

Question 26

Prerequisites to obtaining discovery sanctions under Rule 37?

Answer 26

Before moving for sanctions, D must attempt to obtain evidence from P without a court order and make a motion to compel.

Question 27

Before moving for discovery sanctions under Rule 37, the movant must…

Answer 27

Make a good-faith effort to secure the info before filing the motion.

Question 28

Exception when a party fails to timely object to jury instructions?

Answer 28

Plain error doctrine: an appellate court may address a plain error in jury instructions given by trial court, even though the party has failed to object to the instructions, when the error affects substantial rights.

Question 29

Plain error doctrine

Answer 29

An appellate court may address a plain error in jury instructions given by trial court, even if party failed to object to the instructions, if the error affects substantial rights.

Question 30

Additur

Answer 30

Increase by the court in amt of damages awarded by a jury. NOT permitted in a fed court bc violates 7th Amendment right to a jury trial

Question 31

Can a court condition a new trial order on a party’s refusal to accept a damages amount determined by court?

Answer 31

Yes a fed court can condition a new trial order on P’s refusal to accept a damages amount less than the amount awarded by a jury (i.e., remittitur).

Question 32

When does federal law allow immediate appeal of interlocutory orders?

Answer 32

federal law makes certain equitable orders reviewable immediately as a matter of right, including an order granting or denying an injunction.

Question 33

What type of interlocutory orders are not immediately appealable?

Answer 33

denial of a summary judgment motion, a motion to dismiss, or the granting of a new trial motion

Question 34

When D failed to plead or otherwise defend an action, P can request …

Answer 34

That the court clerk enter a default. The court clerk must enter a default if the P can establish the defendant’s failure, usually by affidavit.

Question 35

A motion to strike

Answer 35

a request for court to remove redundant, immaterial, impertinent, or scandalous material or an insufficient defense from a pleading

Question 36

What needs to happen before default judgment against D can be sought?

Answer 36

the court clerk must first enter the defendant’s default

Question 37

How many days for service of complaint?

Answer 37

90

Question 38

Diversity jurisdiction with stateless people

Answer 38

Diverse citizenship does not exist when a suit involves stateless persons—i.e.,
(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 39

who can’t serve process?

Answer 39

• ppl under 18 years old and
• party to the suit

Question 40

Can a party to a suit serve process on an opposing party?

Answer 40

NO!!!!! A party to the suit can’t serve process!!!!

Question 41

When can discovery requests be served?

Answer 41

Discovery requests cannot be served until parties had an initial planning conference to discuss initial disclosures and prep a discovery plan, unless otherwise stipulated

Question 42

Interrogatories

Answer 42

Written q (served by one party on another) that may inquire about ANY matter in scope of discovery—including facts, opinions, and legal/factual contentions that pertain to the case.

Question 43

How can a party may voluntarily dismiss a crossclaim, counterclaim, or 3P claim without a court order?

Answer 43

By unilaterally filing a notice of dismissal
(1) before a responsive pleading is served or (2) if a responsive pleading isn’t served, before evidence is introduced at a hearing or trial.

Question 44

Can a party voluntarily withdraw a crossclaim without the approval of the court or the consent of the parties?

Answer 44

Yes, if the opposing party hasn’t served a response yet.

Question 45

Examples where the collateral order doctrine applies

Answer 45

• denying state 11A/gov’t official/employee immunity
• vacating attachment of vessel
• refusing to require security bond under state law
• remanding action to state court based on abstention

Question 46

Is an order denying summary judgment final for purposes of the final judgment rule?

Answer 46

NO! Bc it merely determines that there’s some dispute of material fact—it does not fully resolve the underlying claim

Question 47

When is a judgement final?

Answer 47

when it fully resolve the underlying claim