MBE - Civ. Pro. Federal Flashcards
Corporation Citizenship
Citizen of every state in which it is incorporated and the one state in which it has its principal place of business
Which State law applies in diversity case?
law of the state where federal court hearing the case is.
Note: this state laws may require applying another state law => do not be thrown!
P cannot invoke supplemental J (diversity only)
- unless multiple Ps and 1 P lack 75+ requirement
- However, for cases based solely on diversity, supplemental jurisdiction is not available for claims by the plaintiff against persons made parties under the impleader rules when use of supplemental jurisdiction would be contrary to the requirements of diversity jurisdiction.
When does a conduct fall under the same transaction, occurrence, or conduct?
When upon reading the original complaint, D would get notice of the amended pleading’s allegations:
If does not relate back, won’t be allowed to amend.
when is business entity PJ ok?
the entity must be subject to the court’s personal jurisdiction WITH respect to the particular civil action in question.
just saying subject to PJ is too broad
can parties agree to venue that would not be ok otherwise?
Yes, this is not like waiving PJ, which is not allowed.
What law applies if a case is transferred from improper venue?
if for improper grounds => new venue
if from proper venue => old venue law
Specific jurisdiction of a corporation
For specific jurisdiction (i.e., jurisdiction for the instant cause of action only), it must be determined whether the state has a long arm statute authorizing jurisdiction and whether the statute is constitutional (i.e., whether the defendant has sufficient minimum contacts with the jurisdiction such that the exercise of jurisdiction over him would be fair and reasonable).
Is there a time limit to transfer?
No, as long as reasonable and in the interest of justice.
careful! do not confuse this with removal OR with changing venue because improper.
What if there is no venue where 1) all D’s reside or 2) substantial part of the claim arose?
The action may be brought in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.
For statute of limitation purposes, when does the action commence?
if federal question => the moment complaint is filed
diversity cases => state rule for determining when the action is commenced applies.
Is misjoinder ground for dismissal?
No, on a motion or on its own, the court may sever the claims, add or drop a party, but misjoinder in itself if not a ground for dismissal
Is a jointly and severally liable party a necessary party for joinder?
No, potential D who may be jointly and severally liable is not a necessary party for joinder.
Can court’s denial of MSJ to issue an injunction be appealed?
No, denial of MSJ on preliminary injunction does not make it interlocutory (which can be appealed)
Can parties consent to transfer the case from an improper venue to another improper venue?
No, if the case is initially brought in a wrong venue, the court can either dismiss the case or transfer it to the right venue “for the interest of justice.
But if initially in the correct venue, judge may allow to move to a venue that all parties consented to or another proper venue.
when ruling on directed verdict (as a matter of law), does the court interpret credibility and conflicts of evidence?
No, the court only decides if a reasonable jury could have bases to rule for the non-moving party.
Attachment
Seizing property without court writ to secure potential judgment. This is a provisional remedy that can be granted anytime after start of the action.
What can a court do when an indispensable party cannot be joined (no SMJ). m
may dismiss the case or continue without the indispensable party if “equity and good conscious” indicate that the case must continue.
In a FQ cases, is there Erie (decide what law applies) issue?
No! if not a diversity, ALWAYS apply FEDERAL RULEs (no procedural/substantive analysis)
What does the judge do when Renewed motion for judgment as a matter of law is combined with motion for new trial?
Rule of RNAMOL and give a conditional ruling on the new trial. Then, if the RNOMOL is reversed on appeal, an automatic new trial will start.
Is an involuntary dismissal dismissal with prejudice?
Yes involuntary dismissals (failure to prosecute, failure to comply with FRCP, failure to show right to relief) are adjudications of the merits, therefore are dismissals with prejudice, which means that cannot being the same case again.
Can ask for jury in the complaint?
Yes, can ask for jury in pleadings or within 14 days after the last pleading (answer).
If you feel like you are the wrong D to get sued, can you implead the guy party and file motion to dismiss?
To impleading is only proper when the joining party is DERIVATIVELY liable to the D, cannot implead to substitute the D and switch Ds.
The right thing to do here is to file and answer denying the allegation.
When can a party object to jury instructions?
Anytime before jury retires to consider a verdict!
Can a party appeal for insufficiency of evidence if failed to bring a renewed motion for directed verdict?
No, to preserve the right to appeal on insufficiency of evidence, must bring renewed motion after jury verdict.
Note: bringing directed verdict after the closing on OP’s case is not enough, must be renewed.
Can 12(b) defenses de raised in the answer?
Sure, can be through a motion to dismiss or in the answer.
Can D bring a counterclaim that is completely unrelated to P’s initial claim?
YES => permissive counterclaim
BUT must have an independent SMJ
Who can file for joinder?
Only parties, third parties who want to join a lawsuit must file for permissive intervention and there must be at least one common question.
which state law determines whether involuntary dismissal in diversity action has a preclusive effect?
the state where the case was dismissed determined whether dismissal was adjudication on the merits.
Does federal common-law have superiority over state law?
YES, even if a state law does not allow Jes Juticata, or non-mutual collateral estoppel, the issue/claim may still be precluded cuz federal common law allows it.
Can the court consider affidavits when ruling on motion for summary judgment ?
Yes, parties may attach affidavits to pleading, and the court will consider them if they are adequate.
what must an affidavit have?
AFFIDAVITS MUST HAVE
> PERSONAL KNOWLEDGE
BE ADMISSIBLE AT TRIAL
SHOW COMPETENCE TO TESTIFY
Amending pleading/relation back!
- easy to amend
- can amend without asking once within 21 days after your pleading was received.
- can ask to amend after this too, usually easily granted, not granted only if would prejudice the other party
- if filed ok with statute of limitations, want to amend and state has passed, still can amend if amendment stuff arose from the the same T/O of the original pleading.
Does Res Juticada bar vicarious liability claims too?
Yes, because without the initial D’s liability, employer cannot be found liable.
In-state D rule
If a case if brought is a state court of state A, and D is a citizen of state A, cannot remove case from state court to federal court in DIVERSITY ACTION (FQ is ok).
Also, cannot remove after 1 year from filing.
Can a court exercise FQ jurisdiction over a state law claim?
Yes, if there is “embedded federal issue”
TEST for embedded:
1) federal issue will necessarily be raised in state case
2) fed. question will be actually disputed in state case
3) fed. issue is essential
4) allowing fed. issue will not mess state/federal balance of judicial decision making.
When can a new trial be granted?
1) when the verdict is against the manifest weight of evidence
2) to correct an error
3) because the jury award is inadequate or excessive.
Can the court look at stuff outside pleadings to decide pre-trial motions?
Yes, it can look at discovery, affidavits etc. to decide personal jurisdiction, for example.
what’s standard of review for discretionary rulings?
Abuse of discretion - ok unless plainly wrong or without appropriate bases
is allowing medical examination of D a substantive or procedural question?
It is a procedural question (in diversity action, federal procedural law applies)
What is trying an issue by implied consent?
If a party raises evidence and issues and the OP does not object, it is viewed as a consent to litigate this new issue (does not have to fite a pleading, but can then move to amend your pleading in accordance with the implied issues)
How to analyze personal jurisdiction essay?
=> Traditional bases
- D consented to suit in the forum,
- D served in the forum,
- D domiciled in the forum.
=> State long arm statute
State statute says ok to hear other states cases
=> Constitutional - D has minimum contacts that would would make prosecuting D comport with traditional notions of fair play and substantial justice
1) Minimum contact - purposeful availment + foreseeability
2) Relatedness
> General => so systematic and continuous that he is essentially at home
> Specific => contact is less than systematic and continuous, but the claim arises out of the defendant’s contact with the forum
3) Fairness (if specific) => Factors: convenience of the parties and witnesses, forum state’s interests.
Can state district court hear a case if state long-arm statute prohibits it?
No, the district court puts itself is a state court position when decided PJ.
Note - even if federal law would allow PJ, a state court is free to grant less long arm power than fed. law allows.
exception standard for deposing non-testifying expert/getting work product
Non-testifying expert => impracticable to obtain options by other means
Access to work product => substantial need and undue hardship in obtaining it other way.
Interlocutory Appeals Act requirements
Court has discretion to hear appeal when
(i) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an appeal would materially advance the conclusion of the case, and
(ii) at least two appellate court judges agree to hear the appeal.
Interlocutory claims that can be appealed as a right
(i) an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction, note: not an MSJ for injunction),
(ii) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships,
(iii) decrees in admiralty cases that find liability but leave damages to be assessed later,
(iv) a patent infringement order where only an accounting is wanting, and
(v) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.
If there are multiple claims and judge enters a judgment disposing some of the claims, is that judgment appealable?
depends! it is deemed a final, appealable judgment ONLY IF the court makes an express determination that there is no just reason for delay.
Can summery judgment for a part of the claim be appealed?
No, MSJ is not a final judgment: UNLESS
1) it disposes of all of the parties’ claims OR
2) the court expressly determines that there is no just reason for delay.
What standard of review does the appellate court use to review jury instruction?
If preserved with objection (party objected to instruction at trial) => abuse of discretion
If did not preserve => waived the right to appeal
(review is limited to considering whether there was a plain error in the instruction that affected substantial rights) => CHECK THIS! SCREWED UP IN THE TEST 😾
What standard of review does the appellate court use for
> (renewed) judgment as a matter of law
> grant of new trail
(renewed) judgment as a matter of law => de novo
grant of new trail => abuse of discretion
If no FQ or diversity, then one party drops and there is diversity , can the case be removed from state court to federal?
Yes if NOT more than ONE YEAR has passed since the case was commenced in state court.
What venue can a case be removed to?
a federal court embracing the state court
OR
Proper venue (all Ds reside or substantial part of the events occurred)
Can a court remove a case on its own?
NO, only D can ask for removal!
When does a previous claim “merge”?
Res Judicata
If case 1 P wins, can not bring the same claim again because new claim will be merged with the old one.
If case 1 D wins, claim is barred by prior judgment.
Collateral estoppel elements
i) there must have been a final judgment;
(ii) the issue must have been actually litigated and determined;
(iii) the issue must have been essential to the judgment; and
(iv) Either same parties or at least same D (non-mutual collateral defensive)
Non-mutual offensive maybe ok if court finds => it would be fair and equitable to allow the nonparty to do so
Can a P bring the same case twice?
Yes, if the first one
> was VOLUNTARILY dismissed with no prejudice
—- not ok, if involuntarily dismissed
before D served answer
only happened once before
For issue preclusion, does it have to be the same cause of action as Case 1?
No, can be a difference cause of action that has the same issue as a substantial reason for judgment.
Is default judgment considered judgment on the merits that would be barred by issue preclusion
NO.
Do you need a court order to review work product material if you fit the exception?
Yes.
When can you allow inspection of business records instead of answering discover questions?
when the burden of getting answers is the same for both parties.
Careful: this does not apply to production of documents discovery - can only not answer if shows undue burden or cost.
Does mortgage holder have a right to do something before foreclose type actions?
Yes, the mortgage holder can enter the property and stop waste on the property => mortgage holder in possession
When mortgagor abandons the property, mortgage holder can enter and administer the property to maintain its mortgage interest.
When M holder enters, it has the same duties as mortgagor - maintain in proper condition, etc.
Necessary v. Indispensable party joinder?
Necessary party => whose interests will be impaired if they are not joined.
=> case can continue even if can't be joined
Indispensable Party => whose interests will be PREJUDICED if they are not joined.
=> if cannot be joined, the court must dismiss the case. (messes up diversity)
Can you aggregate not related claims to get 75K?
Yes, can aggregate all one D claims against one P claims
Does an issue whether a contract violates federal law create FQ jurisdiction?
No, here the right that P is enforcing comes deem K law, nor federal law:
Note: anticipating federal defenses is not FQ
challenging fed statute that takes away right not FQ
MUST ENFORCE A FEDERAL RIGHT
