MBE Civ Pro Flashcards
Federal Rule of Civil Procedure (FRCP) 13(g) allows a party to make a CROSSCLAIM against a CO-PARTY on the same side of an already-existing claim.
A proper crossclaim must:
1) have arisen out of the SAME TRANSACTION or OCCURRENCE as the ORIGINAL CLAIM; (common nucleus of operative fact)
AND
2) Ask for actual relief from the co-party
*Court must have Subject-Matter jurisdiction + It must be a common nucleus of operative fact… Subject-Matter jurisdiction alone (e.g. the cross-claim arises out of Federal Law–> Federal Question Jx –> Is NOT enough to add the cross-claim)
A man from State A sued two mortgage brokers, both citizens of State A, in federal district court in State A. The man’s complaint alleged that the brokers failed to make disclosures required by an applicable federal lending law.
The first broker filed an answer and a crossclaim against the second broker. The crossclaim alleged that the second broker underpaid him in violation of federal labor laws. The first broker is seeking $150,000 in damages. The second broker filed a motion to dismiss the first broker’s crossclaim.
Should the court grant the second broker’s motion to dismiss the crossclaim?
No –> Crossclaims need supplemental jx –> No common nucleus of operative facts (doesn’t arise out of same transaction/occurrence as the original act) –> Can’t be added
A claim arises under State law in a Federal court, with no Diversity Jx, and the case requires the Federal Court to answer a hypothetical questions as to Federal Law (e.g. Federal Patent Law and a Patent’s validity in a State law Malpractice claim)
Is there subject-matter jurisdiction?
No. The claim does not sufficiently raise a substantial, disputed question of federal law to support federal jx
An “embedded federal issue” is either:
(i) a federal law issue that will be central to determining whether a DEFENSE asserted or expected to be asserted by the defendant is valid;
OR
(ii) a federal law issue whose RESOLUTION will help determine the validity of the plaintiff’s state law claim, even though the direct source of the plaintiff’s claim is state law
To determine if there is an embedded federal issue, courts consider whether:
(i) the embedded federal issue will be necessarily raised in the federal case;
(ii) the federal issue will be actually disputed in the case;
(iii) the federal issue embedded is substantial;
AND
(iv) allowing this exception will not disrupt the federal-state balance of judicial decision-making.
What are (3) types of Personal Jurisdiction?
(1) In personam jurisdiction (over the person)
(2) In rem jurisdiction (thing being litigated is in the state) (e.g. the house in dispute)
(3) Quasi-in-rem jurisdiction (a thing is in the state) (e.g. a bank account)
What is the due process requirement for in personam jurisdiction?
Due Process requirements are met if there are SUFFICIENT MINIMUM CONTACTS with the FORUM STATE such that maintenance of the action in the State does NOT OFFEND traditional notions of FAIR PLAY and SUBSTANTIAL JUSTICE
When must a party be joined as a COMPULSORY joinder under Rule 19?
“When the Compulsion doesn’t Destroy SMJ… Relief is so-so… and Interests are Impaired…”
If person a subject to service of process joinder would NOT destroy SMJx or venue, they MUST be joined if:
(i) Complete relief CANNOT be provided to existing parties w/o that person;
(ii) Disposition in the ABSENCE of the person MAY IMPAIR the person’s ability to PROTECT his interest;
OR
(iii) The person’s ABSENCE would leave existing parties subject to a SUBSTANTIAL RISK of MULTIPLE OR INCONSISTENT obligations
When is notice NOT required for a TEMPORARY restraining order (TRO)?
- if movant can establish–in affidavit or verified complaint–that IMMEDIATE + IRREPARABLE HARM will occur if relief not given prior to hearing adverse party’s opposition;
OR
– movant’s attorney can CERTIFY IN WRITING efforts made to give notice and why it should not be required
When can a party amend?
“To Amend –> 21 serves or 21 RpMs””
FRCP 15(a)
- Once as of RIGHT, within 21 days (after serving) if NO responsive pleading is required;
– if responsive pleading is required, within 21 days of service of the responsive pleading, or within 21 days of service of a 12(b) motion, whichever is EARLIER
If you ALREADY AMENDED ONCE –> You need leave of court
(Leave of court should be given freely whenever justice so requires)
How may an individual within the U.S. be served?
“If you wanna serve, directly serve SC, or on the D or DA”
Service within the STATE which the federal district court SITS
1) By directly serving the SUMMONS AND COMPLAINT on the defendant;
2) By leaving the SUMMONS AND COMPLAINT at the Defendant’s usual place of abode (home) w/ someone of SUITABLE AGE who resides therein;
OR
3) Delivering SUMMONS AND COMPLAINT to an agent appointed by the DEFENDANT or otherwise AUTHORIZED BY LAW to receive service
Impleader claims are
claims that are made by a DEFENDING party against a NONPARTY for ALL OR PART of the DEFENDING PARTY’s liability on an ORIGINAL claim
What are the (3) types of class actions?
“RFC” –> “Right F-ing Classes”
(1) Risk of Prejudice: The class is maintainable if the prosecution of separate actions would create the risk that CLASS OPPONENT would become subject to INCOMPATIBLE standards of conduct resulting from INCONSISTENT adjudications,
OR
if prosecution of the claims through separate actions would IMPAIR CLASS MEMBERS’ INTERESTS
(2) Final Equitable Relief: A class seeking FINAL INJUNCTIVE/or DECLARATORY relief may be certified if the class shares a GENERAL CLAIM against the opposing party
(3) Common Legal or Factual Questions: A class can be certified if QUESTIONS OF LAW OR FACT that are common to the CLASS members PREDOMINATE over any Qs affecting only INDIVIDUAL members, + a class action is the SUPERIROR method for bringing about a FAIR and EFFICIENT adjudication of the controversy
How much time does a party have to respond to interrogatories?
“30 DAYS TO GO ROGUE”
within 30 days after being served w/ the ROGS
Note: The court may order or the parties may stipulate to a shorter or longer time.
What are the three types of jury verdicts?
1) General Verdict: decision by jury on who who wins, and if its the plaintiff, then the amount of damages
2) General Verdict w/ ROGS = (General Verdict + a Special Verdict) – makes sure the jury INDEPENDENTLY considered the MATERIAL FACTS in the case to arrive at the VERDICT
3) Special Verdict: WRITTEN finding by the jury on each issue of ULTIMATE FACT. Courts gives written questions to the jury as to each ultimate fact of the case + asks the jury to make a finding on each fact
Discuss aggregation of claims for amount-in-controversy purposes
If aggregating claims in a case involving one plaintiff against one defendant, for purposes of diversity, the amount in controversy is the total amount of the plaintiff’s claims
What are the three types of mandatory disclosures?
Rule 26(a) requires the parties to make:
1) INITIAL disclosures;
2) Disclosures of EXPERT TESTIMONY 90 days before trial;
3) PRETRIAL disclosures 30 days before trial
What # of preemptory challenges does each party get?
3/each party for preemptory challenges (no reason needed)
Unlimited # for challenges for cause
When can a party file a renewed motion for judgment as a matter of law?
1) No later than 28 days AFTER JUDGMENT ENTERED
2) *But if based on a jury issue not decided by verdict, no later than 28 days AFTER Jury’s DISCHARGED
When is a default and default judgment entered against a party?
– Default occurs when the opposing party has failed to plead/respond/reply/or take action in the case, and it is proven by affidavit or otherwise –> Court clerk MUST enter the default;
– Default judgment can be requested by Plaintiff after a Default is entered, court clerk can enter it if the relief sought is a certain or computational amount and the opposing party is not a minor or incompetent… or otherwise request is by the COURT itself
What interlocutory orders are immediately appealable?
In Certain Cases An Appeal Can Be Made Prematurely
Injunction (grant/denial)
Class action certification
Certification by district court
Admiralty law
Appointment of Receiver
Collateral-order doctrine
Bankruptcy (certain orders)
Mandamus (petition for writ)
Patent-infringement order (only accounting left)
What is the standard of review used by appellate courts for legal rulings?
In general, appellate review of legal rulings is de novo (i.e., without deference to the trial court’s legal rulings)
If a case starts out as not removable, but later becomes removable, what is the timeframe for removing?
Defendant has 30 DAYS to file NOTICE OF REMOVAL once he/she gets a copy of an amended pleading/ motion/order/or other paper from which it may first be ascertained that the case is now removable
What are the two ways in which a defendant can consent to in personam jurisdiction?
- Express consent: defendant agrees in advance to the jx if a lawsuit is brought by the plaintiff, or stipulates to PJx once action is brought
- Implied consent: through conduct, such as filing a counterclaim or driving a vehicle within a state
What are the prerequisites to obtaining any sanctions/filing a Motion for Sanctions under Rule 37?
Need to Attempt to obtain evidence from the Party first w/o a court order and THEN make a motion to compel
THEN you can file the Motion for Sanctions
A federal court may assert SUPPLEMENTAL Jx over a counterclaim that does not satisfy the jurisdictional amount when the counterclaim is
Compulsory
(arises out of the same transaction/occurrence as the original claim–common nucleus of operative facts)
A PERMISSIVE counterclaim does not qualify for SUPPLEMENTAL Jx and therefore must satisfy the 1) Jx amount (>$75k) and 2) complete diversity in a diversity action
(In a diversity jx action)
A PERMISSIVE counterclaim does not qualify for SUPPLEMENTAL Jx and therefore must satisfy the
1) jurisdictional amount
and
2) complete diversity
When a cause of action arises out of or closely relates to a defendant’s contact with the forum state, jx may be warranted over that action even if that contact is the defendant’s only contact with the forum state
This type of jurisdiction is referred to as
“Specific Personal Jurisdiction”
“General personal jurisdiction” requires that a defendant be domiciled in the state or have continuous and systematic contacts with the forum state.
A person having one limited contact within a State (e.g. for the purpose of negotiating and signing a contract there), would not be subject to general personal jurisdiction in that State. But would be under
“Specific Personal Jurisdiction” –> when cause of action arises out of or closes relates to a defendant’s contact w/ forum state
In general, venue in a federal civil action is proper in only one of the following judicial districts:
(i) where any defendant resides, if all defendants reside in the same STATE in which the district is located;
OR
(ii) where “substantial part of the EVENTS OR OMISSIONS” on which the claim is based OCCURRED, or where a “substantial part of the PROPERTY” that is the subject of the action is LOCATED
Under § 1441(a), An action may be removed to the FEDERAL court in the DISTRICT where
the STATE ACTION is pending,
That removal statute determines venue, regardless of whether venue would have been proper under the venue statute (§ 1391) if plaintiff had originally brought the action in that federal district court
In a DIVERSITY case on a STATE LAW claim, MAY the FEDERAL court properly use its power to assess attorney’s fees as a sanction for a defendant’s bad-faith conduct during the litigation, even if the law of the forum state provides that attorney’s fees may not be awarded to a successful party?
Yes.
Federal court has inherent power to do so if defendant acted in BAD-FAITH.
If conflict between state & federal law on an issue before the court, and there’s no federal statute or rule on point, then the court must determine whether federal common law, rather than state law, should be applied
In making this determination w/ respect to federal common law, the district court will ask whether
the failure to apply state law will lead to different outcomes in state and federal court
If the answer is yes, then the court will apply state law, unless affirmative countervailing federal interests are at stake that warrant application of federal law
*SCOTUS has also recognized the application of federal common law when a “uniquely federal interest” is at stake + a significant conflict exists between that interest and the operation of state law
True or False: In conflicts between State and Federal law, regardless of a federal statute addressing the issue, SCOTUS has also recognized the application of federal common law when a “uniquely federal interest” is at stake + a significant conflict exists between that interest and the operation of state law
TRUE.
E.g. defense contractor liability for private contractors who are in contracts w/ the U.S. Military for defense weapons being subject to a products liability claim
When a defendant files a MTD 12(b) 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 the court CONSIDERS SUCH materials in reaching its decision on the motion
If a pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material, then the court, upon motion or upon its OWN INITIATIVE, may
order that such defense or material be stricken
(Motion to Strike)
(e.g. . a statement concerning the value of a plaintiff’s automobile when the complaint only seeks to recover damages for PERSONAL injuries –> the statement would be immaterial)
For Federal STATUTORY INTERPLEADER, diversity jx is met if
– any 2 adverse CLAIMANTS are citizens of different states (*not the stakeholder)
– amount in controversy: property at issue must merely be $500 or more in value,
(no >$75k requirement)
*The stakeholder must be diverse from Claimants in a Federal interpleader action, not a Federal STATUTORY interpleader action
If a party files a CLAIM, a COUNTERCLAIM, or a CROSS-CLAIM against another party, the second party must file any claim that
that party has against the first party that arises out of the S/T/O as the first party’s claim
The first defendant is an opposing party with respect to this mandatory claim; accordingly, the second defendant’s claim is a *COMPULSORY COUNTERCLAIM
While all cross-claims are permissive, the second defendant’s claim is a counterclaim, not a cross-claim (the defendant responding to the defendant who filed a cross-claim against him)
An illustrator filed an action in federal district court against a competitor, alleging that the competitor had used one of the illustrator’s designs without permission in violation of federal copyright law. A pretrial conference was scheduled for the following month. On the scheduled date, the illustrator failed to attend the pretrial conference, and he failed to notify the court or the competitor. He later informed the judge that his absence was due to a family emergency. The judge then issued an order requiring both parties to notify the judge by telephone at any time prior to the conference if they could not appear. On the date of the re-scheduled pretrial conference, the illustrator again failed to appear as he had to deal with another family emergency. In his haste, the illustrator forgot to notify the judge by telephone. Due to his frustration with the illustrator’s conduct, the judge dismissed the case.
Was dismissal of the action proper?
A. No, because dismissal is not a permitted sanction for failure to appear at a pretrial conference or obey a pretrial order.
B. No, because the illustrator’s conduct was excusable.
C. Yes, because the illustrator failed to attend the pretrial conference.
D. Yes, because the illustrator failed to obey the judge’s order.
B. No, because the illustrator’s conduct was excusable.
A. is wrong b/c court can treat it as a failure to comply w/ a discovery order –> Dismiss the case or hold party in contempt of court (previously selected this answer)
The court may direct counsel and parties to appear for pretrial conferences
If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may
impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including 1) contempt of court OR 2) dismissal of an action
Dismissal of an action is a severe sanction, and generally it is appropriate only when a party’s conduct is serious, repeated, extreme, and otherwise inexcusable
The general rule of appellate review of a lower court’s legal rulings is DE NOVO
ABUSE OF DISCRETION applies to ________ decisions made by the court, such as the admissibility of evidence, not the trial court’s legal rulings
The “CLEARLY ERRONEOUS” standard of review applies to a trial court’s FINDINGS OF FACT, not its rulings on the applicable law
The “PLAIN ERROR” rule permits an appellate court to take notice of a plain error that affects a substantial right, even though a party failed to object or make an offer of proof at trial
ABUSE OF DISCRETION –> DISCRETIONARY rulings
Full Faith and Credit requires that, in determining the CLAIM-PRECLUSIVE effect of a PRIOR FEDERAL judgment in an action based on DIVERSITY JX, federal common law requires that
the law of the STATE in which the federal court RENDERED ITS JUDGMENT be applied,
UNLESS the state law is incompatible with federal interests
Is there diversity jx/citizenship if the suit involves a U.S. citizen domiciled in a foreign country
No.
No diversity of citizenship if it involves a stateless persons—i.e.,
(1) noncitizens present in the U.S. but not citizens of a foreign country or
(2) a U.S. citizen domiciled in a foreign country
