MBE 2 Flashcards
Where is partnership a considered a citizen?
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.
When can a federal court remand a case to state court?
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.
Can an out-of-state corporation be subject to personal jurisdiction because of contacts in state by an independent contractor?
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.
Will inadvertent disclosure during discovery operate as a waiver of the attorney-client privilege?
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!
Can a TRO may be issued without notifying the party to be enjoined?
Yes, if the moving party submits an affidavit certifying reasonable efforts made to notify.
What must a TRO contain?
Every order granting a TRO must state the reasons why it was issued and must detail the acts restrained.
When should a judgment on the pleadings may be made?
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.
Motion for judgement on the pleadings
Granted if on the face of the pleadings the court finds the moving party is entitled to judgment.
When can a final pretrial order may be amended?
only to prevent manifest injustice.
Service of process for multiple Ds
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.
Removal Statute
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.
In a diversity, if a court transfers a case to a district court, what choice-of-law rules apply?
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.
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?
YES! during litigation, even if the law of the forum state provides that attorney’s fees may not be awarded to a successful party.
If the forum state doesn’t allow something procedural, can the district court still do it?
Yes, under Erie!
If the forum state does not allow the award of attorney’s fees, the district court can still award them?
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!
When you’re bw state and federal law, first district court considers….
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?
When a district court is deciding bw applying fed CL or state law, they consider…
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.
When are affirmative countervailing fed interests are at stake, such that warrant application of fed law over state law?
If a “uniquely federal interest” is at stake and a significant conflict exists bw that interest and the operation of state law.
preliminary injunction
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)
What can the court consider in ruling on a motion to dismiss for failure to state a claim?
Only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice
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…
The court MUST treat the motion as a summary judgment motion if they court considers those materials in reaching its decision on the motion.
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?
Only when materials outside the pleadings are submitted with the motion and the court considers those materials in making its decision.
When can a P amend a pleading?
P may amend a complaint once as of right within 21 days AFTER being served with an answer.
Is a crossclaim mandatory
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!
