MBE _ Fed Civ Pro

Question 1

Diverse Citizenship

Answer 1

• U.S. citizens domiciled in the U.S. and foreign citizens
• U.S. citizens domiciled in different states, in which foreign citizens are additional parties or
• U.S. citizens and permanent resident noncitizens domiciled in different states.

BUT, 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 2

Minimum Contacts (Personal Jurisdiction)&
Imputed Minimum Contacts to a Parent Corporation

Answer 2

Minimum contacts exist when the defendant avails itself of the state’s protections and benefits so that it should reasonably foresee being sued there (e.g., by selling and advertising goods in the state).

A subsidiary’s minimum contacts may be imputed to its parent corporation when the subsidiary is acting as the parent corporation’s agent or alter ego. In the absence of such evidence, each corporation is a separate legal entity.

Question 3

Proper Venue

Answer 3

Case may be brought in any federal district where:

• any defendant resides, if defendants all reside in same state
• substantial part of events giving rise to claim occurred or property at issue is located
• any defendant is subject to court’s personal jurisdiction (if neither of the above provisions applies)

Question 4

Transfer from proper venue

Answer 4

When venue is proper, district court may transfer case to any other proper venue for convenience of parties/witnesses & in interest of justice

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

Question 5

Improper Venue - required action of the court

Answer 5

When venue is improper, district court must either:

• dismiss case
• transfer case to proper venue (if interest of justice requires)

Question 6

Doctrine of forum non conveniens

Answer 6

Allows a federal court to dismiss a case - even when venue is proper in that court - if a state or foreign judicial systme is better suited to hear the dispute.

Question 7

Methods of Serving Process in the U.S.
(on individuals & organizations)

Answer 7

Individual

• Following state law where district court is located or where service is made
• Personally serving defendant with summons & complaint
• Leaving summons & complaint at defendant’s dwelling with someone of suitable age & discretion who resides there
• Delivering summons & complaint to defendant’s authorized agent

Organization
* Following state law where district court is located or where service is made
* Delivering summons & complaint to officer, managing or general agent, or authorized agent & mailing those documents to defendant if required by statute

Who
Any defendant (individual or organization) receives proper service of process when someone who is at least 18 years old and not a party to the suit serves the defendant with a summons and complaint.

Question 8

Deadline for Service of Process

Answer 8

A defendant in the U.S. must be served with process within 90 days after the plaintiff’s complaint is filed.*

*The 90-day deadline for service of process applies to defendants in the U.S. For defendants in a foreign country, most federal courts require that process be served with due diligence.

Question 9

Permissive Joinder (FRCP 20) &
Compulsory Joinder (FRCP 19)

Answer 9

Compulsory joinder (FRCP 19)

Person must be joined in lawsuit—provided subject matter jurisdiction is preserved—if absence will:

• prevent court from granting complete relief to existing parties
• prejudice absent person’s interest or
• subject existing party to multiple or inconsistent obligations

Permissive joinder (FRCP 20)

Person may be joined in lawsuit if:

• claims by or against person arise out of same transaction/occurrence and
• common question of fact or law will arise

Motion to sever improperly joined claims may be made at any time.

Question 10

When can discovery requests be served?

Answer 10

Discovery requests generally cannot be served until the parties have held an initial planning conference to arrange for initial disclosures and prepare a discovery plan.

If a discovery request is served before this conference is held, the court would likely grant a protective order to shield the served party from the undue burden of responding to that request.

*Discovery may be sought before an initial planning conference (1) in a proceeding exempt from initial disclosures or (2) if permitted by a court order, the parties’ stipulation, or a procedural rule.

Question 11

What are the 5 methods of discovery?

Answer 11

Depositions
* Written or oral examination of party or witness under oath
* 10 per party

Interrogatories
* Written questions served on party
* Serve up to 25
* Written responses due within 30 days of service

Request for production
* Request served on party (or subpoena served on nonparty) to produce & allow inspection of documents, electronic information, tangible items, or land
* No limit
* Written response due within 30 days of service

Requests for admission
* Requests served on other party to admit truth of facts within scope of discovery
* No limit
* Written response due within 30 days of service

Physical/mental exams
* Order by court or parties’ agreement for physical or mental examination of party if those conditions are in controversy

Question 12

Voluntary dismissal of claims
(FRCP 41(c))

Answer 12

Party may dismiss crossclaim, counterclaim, or third-party claim without court order when:

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

Question 13

Collateral Order Doctrine &
examples of collateral orders

Answer 13

The** collateral-order doctrine** provides a narrow exception to the final judgment rule. An interlocutory order will be characterized as final and immediately appealable if:

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

Examples of collateral orders

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 14

plain view exception
(warrant requirement exception)

Answer 14

In situations in which there is a reasonable expectation of privacy, a police officer may seize an item in plain view of the officer without a search warrant, as long as (i) the officer is on the premises for a lawful purpose, and (ii) the incriminating character of the item is immediately apparent.

Question 15

warrant exception for highly regulated industries

Answer 15

The government may conduct a warrantless search of a business in a closely or highly regulated industry when the government acts pursuant to a statutory or regulatory inspection program that, in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant.

Question 16

curtilage

Answer 16

In determining whether an area is protected as curtilage, the following four-factor test applies: (i) the proximity of the area to the home; (ii) whether the area is included within an enclosure surrounding the home; (iii) the nature of the uses to which the area is put; and (iv) the steps taken by the resident to protect the area from observation by passersby.

Question 17

Can giving Miranda warnings always cure the taint of a prior Miranda violation?

Answer 17

Although the giving of Miranda warnings generally dissipates the taint of a prior Miranda violation with respect to a subsequent confession, this is not always the case.

E.g., when the purpose of Miranda was circumvented by the police’s intentional decision to initially withhold Miranda warnings in a circumstance in which these warnings would otherwise be required (?)

Question 18

Can D overturn a conviction due to his lawyer’s conflicting interests (amounting to ineffective assistance of counsel)?

Answer 18

The representation of defendants with conflicting interests may amount to ineffective assistance of counsel.

In general, to overturn a conviction based on a conflict of interest, a defendant must show that there was an actual conflict of interest and that such conflict adversely affected the attorney’s performance.

Question 19

What is the general standard to reverse a conviction for ineffective assistance of counsel?

Answer 19

To reverse a conviction on the ground of ineffective counsel, the claimant has the burden to show that:
(i) counsel’s representation fell below an objective standard of reasonableness, and
(ii) counsel’s deficient performance prejudiced the defendant, resulting in the reasonable probability that the outcome would have been different.

Question 20

Brady Material / Prosecution Duties under Brady

Answer 20

The prosecution has an affirmative duty to disclose to the defendant any material evidence favorable to the defendant and relevant to the prosecution’s case in chief that would negate guilt or diminish culpability or punishment. Failure to disclose such evidence (known as Brady material) violates the Due Process Clause of the Fourteenth Amendment.

Question 21

PFC for a non-representative jury selection

Answer 21

The Equal Protection Clause prohibits racial discrimination in the selection of juries.

A jury must be selected from a representative cross-section of the community.

To establish a prima facie case for non-representative jury selection, a defendant must show that: (i) the group excluded is a distinctive group in the community; (ii) the group was not fairly represented in the venire from which the jury was selected; and (iii) the underrepresentation resulted from a systematic exclusion of the group

Question 22

Speedy Trial (pre-accusation delays)

Answer 22

The Due Process Clause and federal and state statutes protect defendants from intentional and prejudicial pre-accusation delay. The Due Process Clause may be violated if the delay was used to obtain a tactical advantage for the prosecution or to harass the defendant. However, delay resulting from an investigation conducted in good faith does not violate the Due Process Clause.

Note: Although a defendant’s right to a speedy trial under the Sixth Amendment only looks at post-accusation delay, a defendant’s due process rights can be violated by a pre-accusation delay