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Bar Exam > MBE Civil Procedure > Flashcards

MBE Civil Procedure Flashcards

1
Q

When there is Federal Question Jurisdiction

A

Express: expressly created by federal law that provides underlying right

Implied: right created by federal law and can be fairly implied that a cause of action was intended by Congress

Neither Express or Implied: 
Claim must be: 
1. Necessarily raised
2. Actually disputed
3. Substantial
4. Capable of resolution in federal court without disrupting federal-state balance
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2
Q

Diversity Jurisdiction

A

Complete diversity + AIC > $75,000

Must exist when complaint is FILED

Citizenship of representative parties is used generally EXCEPT for decedents and minors/incompetents

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3
Q

Domicile

A

Individual: state where residing and intends to for an indefinite period; can only have one

Corporation: state(s) of incorporation + principal place of business; can have more than one

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4
Q

Standard of Proof for AIC

A

Plaintiff’s good faith assertion in the complaint is sufficient unless there is a legal certainty that they can’t recover that amount

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5
Q

When Aggregation is Permitted

A

Yes: 1 P - 1 D
No: 1 P - 2+ D; 2+ P - 1 D

Exception: multiple plaintiffs against single defendant can go through if a single plaintiff satisfies AIC and their claims are related

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6
Q

When Minimal Diversity is Enough

A

Federal Interpleader Act (statutory interpleader)

Class actions of > $5,000,000

Interstate mass torts if at least 75 people died in one accident and P/Ds are from many states (like an airline crash)

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7
Q

Assignment of a Claim

A

Complete assignment that is real (for value) is fine and can shift controlling domiciliary to assignee

If only partial assignment; assignor still reigns

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8
Q

Removal - Generally

A

Only proper if federal courts have SMJ and PJ

Only defendants may remove

Must get consent of all defendants to remove within 30 days of service

Automatic with filing; decision of whether removal is proper is for the federal court

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9
Q

Special Removal Rules for Diversity

A

State where suit was filed can’t be a domicile of ANY defendant

Must remove within 1 year of commencement unless plaintiff acted in bad faith to make the case non-removeable

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10
Q

Supplemental Jurisdiction - Generally

A

Federal courts with SMJ may hear additional claims arising from the same case or controversy

–> common nucleus of operative fact

Allows, but does not require - discretion of the court

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11
Q

Supplemental Jurisdiction - Federal Question

A

Additional claims may be heard if there is a common nucleus of operative fact

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12
Q

Supplemental Jurisdiction - Diversity

A

Permissive Joinder: must satisfy complete diversity; AIC not required

Compulsory Counterclaim: don’t need independent grounds at all (D) but (P) does

Permissive Counterclaim: must satisfy both complete diversity and AIC

Cross-Claims: if arising out of the same occurrence/transaction as the initial claim there’s no AIC/citizenship requirement

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13
Q

In Personam Jurisdiction: Bases

A

Generally required whenever judgment imposes a personal obligation

Voluntary
Domicile
Consent
Long-Arm Statute
Attachment of Property (requires minimum contacts if claim not about the property)
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14
Q

In Personam Jurisdiction: Due Process

A

Minimum contacts with the forum state so the action does not offend traditional notions of fair play and substantial justice

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15
Q

Minimum Contacts

A

Courts look for a purposeful availment by Defendant of the protections of the forum’s law

E.g., Defendant’s contacts with the forum state must be purposeful and substantial, such that they should reasonably anticipate (foresee) being taken to court there

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16
Q

Specific v. General Jurisdiction Contacts

A

Specific: when a cause of action arises out of/closely relates to Defendant’s conduct with the forum state (act in the state causing injury; contracting for services in the state; local property; etc.)

General: Defendant is domiciled or has continuous and systematic contacts with the forum state rendering them essentially at home

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17
Q

Imputed Contacts

A

Partnerships: each partner generally an agent of the partnership

Corporation: contacts with forum state don’t automatically establish PJ over a wholly-owned subsidiary unless it is the parent’s alter ego or acting as an agent

Employees/Agents: contacts by nonresident agent/employees are imputed to the employer if they are acting within the scope of their agency/employment (usually not for independent contractors)

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18
Q

Fair Play and Substantial Justice Factors

A
  1. Interest of the forum state in adjudicating the matter
  2. Burden on Defendant of appearing
  3. Interest of the judicial system in the efficient resolution of controversies
  4. Shared interests of the states in promoting common social policies
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19
Q

In Rem Jurisdiction

A

Court authority to determine issues concerning rights to real/personal property

Must satisfy due process

Property generally must be present within the forum state

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20
Q

Quasi in Rem

A

Determines only the interests of parties to the action regarding property located in the forum state (lien foreclosure or quiet title action)

Is not personally binding against Defendant

If the disputes are unrelated to the ownership of the property with no close relationship, minimum contacts must be shown between Defendant and forum state

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21
Q

Federal Exceptions to PJ Requirements

A

Federal Interpleader Act: nationwide service of process establishes PJ

Bulge Provision: service anywhere within 100 miles of federal courthouse for (1) impleading 3rd party defendants and (2) joining necessary parties

Unusual Provision: nationwide service of process when Plaintiff’s claim arises under federal law and Defendant isn’t subject to PJ in any state court (think foreign defendants without contacts to states)

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22
Q

Notice & Service of Process: General Rules for In Personam

A

Notice must be reasonable under the circumstances

Within 90 days of filing

Can be waived (extends time to serve answer from 21 to 60 days; 90 if foreign)
Request for waiver must wait at least 30 days for an answer

Always ok: in-hand personal delivery; serving someone at Defendant’s dwelling over 18; delivery to authorized agent; registered mail, return receipt requested (for foreign Defendants)

Aim to do this if you know who the parties are for In Rem and Quasi in Rem too

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23
Q

Special Service of Process Rules

A

Infants: serve minor and parent or guardian

Adjudicated Incompetent: serve incompetent and guardian

Partnership: serve general partner, attorney in fact, or authorized agent

Corporation: serve officer, director, managing agent, or agent appointed to receive service of process

Non-Resident Motorists: serve a state official who forwards a copy to Defendant

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24
Q

Service of Process for In Rem and Quasi in Rem

A

Must make a diligent effort to locate all claimants and serve them personally

If cannot be located, notice by publication is permitted

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25
Q

Federal Venue is Proper where:

A
  1. Any Defendant resides, so long as ALL defendants reside in the state
  2. Where the claim arose (where a substantial part of the events or omissions occurred or where a substantial part of the property is located)
  3. If 1 & 2 fail, then any district where Defendant is subject to PJ
    * If filed in state court and removed, venue is automatically proper in the federal district where the state court sits, even if that wouldn’t be proper otherwise
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26
Q

Defining Residence in Venue Terms

A

Individual: residence = domicile

Business Entities: every district in which PJ exists

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27
Q

Change of Venue: Original Venue Proper

A

If Diversity Jurisdiction: the new district must apply law from the previous court

If Federal Question: the new district will apply federal law as interpreted by its own court of appeals (if in another circuit)

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28
Q

Change of Venue: Original Venue Improper

A

If Diversity Jurisdiction: the new district applies the choice-of-law rules of its home state

If Federal Question: the new district applies its own COA interpretation of the law

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29
Q

Forum Non Conveniens (Federal)

A

Only used when a forum is deemed most appropriate for an action is a state or foreign court

Burden generally is on Defendant, but if a forum selection clause designates a state or foreign court, the burden shifts to Plaintiff

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30
Q

Erie

A

State substantive law

Federal procedural law

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31
Q

How to tell if something is substantive or procedural

A
  1. Valid federal statute on point when state/federal conflict:
    Federal Rules Enabling Act: does the federal rule abridge, enlarge, or modify a substantive right?
    No: apply federal rule
    Yes: apply federal rule only if it only incidentally affects a litigant’s substantive rights
  2. No federal rule on point:
    Apply state law if not doing so would lead to different outcomes
  3. Substantive law: elements of a claim or defense, SOL, tolling provisions, burden of proof (choice of law)
  4. Procedural law: judge/jury allocation, assessment of attorney’s fees, equitable/legal determination
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32
Q

When to use federal common law

A

Federal Question: admiralty, US is a party, interstate disputes, foreign country relations, government as proprietary, Congress left a gap in statutory scheme

Diversity: when a “uniquely federal interest” is at stake and a significant conflict exists between it and state law

Used even in state court if it’s necessary

33
Q

Injunction Types

A

TRO: limited time (max 14 days); may be issued without notice if necessary; if no notice adverse party may move to dissolve/modify (2 days’ notice)

Preliminary Injunction: (for P)

  1. Likely to succeed on the merits
  2. Likely to suffer irreparable harm in absence of relief
  3. Balance of equities in their favor
  4. Injunction in public interest

Permanent Injunction: continues until dissolved; any affected person may move for modification/dissolution
Same standards as PI but plaintiff must show actual success on the merits

34
Q

Complaint Requirements - Generally

A

Short/plain statement of SMJ, Plaintiff’s entitlement to relief, and a demand for judgment

Must state a plausible case for recovery

  1. Look for conclusory allegations
  2. Look at facts and see if they add up to plausibility

Service generally within 90 days of filing

35
Q

Motions Against the Complaint

A

Filed within 21 days of service with the answer (usually)

Lack of SMJ (any time); PJ, Venue, Process, Failure to State a Claim Upon Which Relief Can Be Granted; failure to join necessary party; forum non conveniens

36
Q

When Special Pleadings Must Be Made

A

Fraud or Mistake

Special Damages Claims

37
Q

Motion for Judgment on the Pleadings

A

When the pleadings agree entirely on the facts and only the law is in dispute
Rare

If any factual dispute, there’s a case for summary judgment

38
Q

Motion for a More Definite Statement

A

Asks a pleading be made more specific - disfavored by judges

39
Q

Motion to Strike

A

Delete scandalous/prejudicial matters from a pleading that aren’t relevant to the case

Can also be used by Plaintiff to strike a legally invalid defense

40
Q

Answer Requirements

A

May contain responses, affirmative defenses, counterclaims

Failure to respond = admission

Ordinarily must be served within 21 days of service of the pleading

41
Q

Common Affirmative Defenses

A 
Assumption of the Risk
Contributory Negligence
Fraud
Duress
Release
Statute of Frauds
Statute of Limitations
42
Q

Reply

A

Plaintiff’s answer to a counterclaim

Same rules governing answers apply

43
Q

Amendments to Pleadings

A

As of Right: may do so ONCE within 21 days of service or response

By Leave of Court: should be freely granted

Responses due within 14 days or by the time left on the original pleading, whichever is later

44
Q

Doctrine of Relation Back

A

When an amendment is deemed to relate back to the date the original pleading was filed

New Claim: relates back if amendment concerns the same conduct, transaction, or occurrence

New Party: relates back if it concerns the same conduct (etc.), the new party gets notice within 90 days of ORIGINAL complaint filing, and Defendant should have known about the action but for a mistake concerning the proper party’s identity

Key concept: notice - can’t surprise the other party

45
Q

Analyzing a 12(b)(6) Motion to Dismiss

A
  1. Identify and reject legal conclusions unsupported by factual allegations
  2. Assume the truth of well-pleaded facts and include context-specific analysis to determine if allegations plausibly give rise to relief
46
Q

Types of Rule 11 Sanctions

A

Nonmonetary directives
Penalties to the court
Payments to movant for attorney’s fees/other expenses directly resulting from violation

47
Q

Permissive Joinder

A

May be joined if any right to relief is asserted jointly, severally, or arising out of the same transaction (etc.) and a question of law/fact common to all Plaintiffs or Defendants will arise

SMJ:
No SJ for Defendants - need complete diversity & AIC
SJ allowed for Plaintiffs for AIC, still need complete diversity

PJ & Venue requirements all stick

48
Q

Compulsory Joinder

A

Necessary Parties: necessary for a just adjudication (complete relief can’t be granted without them; their absence would impair someone’s ability to protect their interests; or without them existing parties might be subject to multiple/inconsistent obligations)

SMJ/PJ/Venue all required

If not satisfied, must be either severed or dismiss the case (if indispensable)

49
Q

Indispensable Party Factors

A
  1. Extent to which judgment without the party would prejudice them or existing parties;
  2. Extent to which protective measures could prevent injustice;
  3. Whether judgment rendered in the necessary party’s absence would be adequate; and
  4. Whether Plaintiff would have an adequate remedy if the action were dismissed
50
Q

Intervention as of Right

A
  1. Interest in property/transaction that is the subject matter/action
  2. Disposition of the action may impair the nonparty’s interest
  3. The nonparty’s interest is not adequately represented by the existing parties
51
Q

Permissive Intervention

A

Court must consider undue delay/prejudice to original parties

Movant has a conditional right to intervene under federal statute, or

Movant’s claim/defense and the original action share a common question of law or fact

52
Q

Timeliness of Intervention Factors

A
  1. Length of time movant knew or reasonably should have known that its interest was threatened before intervening
  2. Prejudice to existing parties if permitted
  3. Prejudice to movant if denied
53
Q

Federal Interpleader Rule

A

Used to resolve the problem of competing claims to the same property

Stakeholder can invoke as a plaintiff or defendant:

Plaintiff-Stakeholder can sue all claimants as defendants
Defendant-Stakeholder has been sued by a claimant, and all other claimants are joined as plaintiffs

54
Q

Statutory Interpleader

A

Only applies in federal court

AIC need only be $500 or more

Authorizes nationwide service of process/PJ

Venue is proper in any district where any claimant resides

Minimal diversity allowed

55
Q

Permissive Joinder

A

A party may join independent/alternative claims

Diversity: plaintiff may aggregate to meet AIC against 1 defendant

Federal Question: nonfederal claims can only be joined if diversity jurisdiction exists or if they’re part of the same case/controversy as the federal claim and get supplemental jurisdiction

56
Q

Counterclaims

A

Must be answered within 21 days of service

Compulsory: arises out of the same transaction/occurrence of the opposing party’s claim & doesn’t require adding another party where the court doesn’t have jurisdiction
Auto-supplemental jurisdiction

Permissive: need independent SMJ, optional to bring, don’t lose them if you don’t

57
Q

Cross-Claims

A

Claim against a co-party that arises out of the same transaction/occurrence of the original action/counterclaim (& new parties subject to joinder rules)

Supplemental jurisdiction by definition; PJ and Venue already permitted at this point

58
Q

Impleader

A

Defendant (third party plaintiff) can implead a nonparty (third party defendant) for liability on the original claim

Can be asserted any time after complaint is filed, but must get permission if more than 14 days after service of original answer

Auto-supplemental jurisdiction
BUT - if plaintiff is here on diversity and wants to make a claim against third party defendant, there needs to be independent SMJ

Court must get PJ

59
Q

Class Requirements

A

Numerosity
Commonality
Typicality
Adequacy

60
Q

Types of Certified Classes

A
  1. Risk of Prejudice (subject opponent to inconsistent adjudications or interests of class members might be impaired)
  2. Final Equitable Relief (injunctive/declaratory relief sought where a single, indivisible remedy is ok)
  3. Common Legal/Factual Questions (must predominate over individualized issues; be superior method of handling it)
61
Q

Class Action Under Diversity

A

The class representatives must be diverse from class opponents

At least one plaintiff must meet the $75,000 AIC

OR Class Action Fairness Act (100 members, AIC > $5,000,000)

62
Q

Mandatory Disclosures

A

Initial (within 14 days after discovery conference)
Expert Testimony (at least 90 days before trial or 30 days after other side’s expert disclosure)
Pretrial (at least 30 days before trial)

63
Q

Discovery Scope

A

Need not be admissible, just has to be relevant and proportional

Can’t get privileged information

64
Q

Limitations on Discovery

A

Generally can’t seek it until after the conference

Discovery sought is unreasonably cumulative or can be obtained from a more convenient/less expensive source

Party seeking discovery had ample opportunity to obtain information by discovery

Proposed discovery not relevant and proportional

65
Q

Discovery Conference

A

Parties must confer at least 21 days before the scheduling conference

66
Q

Discovery Devices

A

Oral Depositions (limit 10, any time after conference)
Interrogatories (limit 25, only against parties)
Requests to Produce Documents (30 days from service/first conference, only against parties)
Physical/Mental Exams (if in controversy, only against parties)
Requests for Admission (only against parties)

67
Q

Discovery Enforcement Mechanics

A

Motion to Compel: motion against a party failing to make automatic disclosures or respond to requests

Sanctions

Presumption instructions regarding destruction of electronic evidence

68
Q

Dismissal

A

Voluntary:
Plaintiff can dismiss without leave of court any time before Defendant serves answer/motion for summary judgment (or by stipulation of all parties)
Court can dismiss with or without prejudice

Involuntary: when Plaintiff fails to prosecute or comply with the Rules/court order, Defendant can move to dismiss
With prejudice
Operates as adjudication on the merits

69
Q

Default Judgment

A

When a party fails to defend

Can be sought after at least 7 days of notice to Defendant if Defendant has appeared

Court considers whether Defendant’s actions were willful, whether setting aside a default would prejudice Plaintiff, and whether Defendant presented a meritorious claim

70
Q

Summary Judgment

A

No genuine dispute as to any material fact and movant is entitled to judgment as a matter of law

Construe all evidence in light most favorable to nonmoving party

Movant has burden of proof before shifting to opposing party to prove there is a genuine issue of fact

May be filed any time until 30 days after close of all discovery

71
Q

Declaratory Judgment

A

Court tells parties their rights/responsibilities without awarding damages or ordering anything

72
Q

Jury Requirements

A

At least 6, max 12

3 peremptory challenges (no race or gender)
Unlimited for-cause challenges

Unanimous verdict required unless parties stipulate otherwise; must be at least 6 unless parties stipulate otherwise

Can be dismissed for misconduct (false tesitmony during voir dire, concealing facts relating to qualifications, violating confidentiality, improper influence, investigating outside facts) - court may dismiss juror or order new trial

73
Q

Forms of Jury Verdicts

A

Special: written finding on each issue of ultimate fact

General: typically a decision as to the prevailing party and damages (if applicable)

General with Special Interrogatories: combo; ensures the jury independently considered material facts of the case

74
Q

Bench Trial

A

Court must make findings of fact/conclusions of law on the record at close of evidence or in an opinion/memo

On appeal, standard is clearly erroneous

75
Q

Judgment as a Matter of Law

A

Prior to Submission to Jury = Directed Verdict

After Verdict and Entry of Judgment = Judgment Notwithstanding the Verdict (Renewed)

  • can be granted only on grounds raised in pre-verdict motion
  • no later than 28 days after entry of judgment
  • court can keep verdict, direct entry of judgment as matter of law, or order new trial
76
Q

Relief from a Judgment or Order

A

A court can relieve a party of final judgment within reasonable time, no later than one year following judgment entry for

(i) mistake, inadvertence, surprise, or excusable neglect,
(ii) newly discovered evidence (not previously discovered through reasonable diligence), or
(iii) fraud, misrepresentation, or misconduct by opposing party

77
Q

Claim Preclusion (Res Judicata)

A
  1. A final judgment on the merits
  2. Second suit between same parties or successors in interest
  3. Second suit involves the same claim/cause of action
78
Q

Issue Preclusion (Collateral Estoppel)

A
  1. Same issue of fact arises in two suits
  2. Issue was actually and necessarily decided in the first suit (issue contains a necessary component of decision reached = essential)
  3. Party to be precluded was a party to the first suit

May be used offensively so long as its against someone who was a party to the first suit

79
Q

Issue Preclusion in Criminal Prosecution

A

Issues determined in favor of prosecution are generally preclusive in a civil action against Defendant for same conduct

Issues determined in favor of Defendant are generally not preclusive in a civil action against Defendant for same conduct (since Plaintiff wasn’t a party to the criminal action)

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