MBE Civil Procedure

Question 1

When there is Federal Question Jurisdiction

Answer 1

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

Question 2

Diversity Jurisdiction

Answer 2

Complete diversity + AIC > $75,000

Must exist when complaint is FILED

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

Question 3

Domicile

Answer 3

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

Question 4

Standard of Proof for AIC

Answer 4

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

Question 5

When Aggregation is Permitted

Answer 5

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

Question 6

When Minimal Diversity is Enough

Answer 6

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)

Question 7

Assignment of a Claim

Answer 7

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

If only partial assignment; assignor still reigns

Question 8

Removal - Generally

Answer 8

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

Question 9

Special Removal Rules for Diversity

Answer 9

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

Question 10

Supplemental Jurisdiction - Generally

Answer 10

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

Question 11

Supplemental Jurisdiction - Federal Question

Answer 11

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

Question 12

Supplemental Jurisdiction - Diversity

Answer 12

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

Question 13

In Personam Jurisdiction: Bases

Answer 13

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)

Question 14

In Personam Jurisdiction: Due Process

Answer 14

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

Question 15

Minimum Contacts

Answer 15

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

Question 16

Specific v. General Jurisdiction Contacts

Answer 16

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

Question 17

Imputed Contacts

Answer 17

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)

Question 18

Fair Play and Substantial Justice Factors

Answer 18

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

Question 19

In Rem Jurisdiction

Answer 19

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

Must satisfy due process

Property generally must be present within the forum state

Question 20

Quasi in Rem

Answer 20

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

Question 21

Federal Exceptions to PJ Requirements

Answer 21

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)

Question 22

Notice & Service of Process: General Rules for In Personam

Answer 22

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

Question 23

Special Service of Process Rules

Answer 23

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

Question 24

Service of Process for In Rem and Quasi in Rem

Answer 24

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

If cannot be located, notice by publication is permitted

Question 25

Federal Venue is Proper where:

Answer 25

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

Question 26

Defining Residence in Venue Terms

Answer 26

Individual: residence = domicile | Business Entities: every district in which PJ exists

Question 27

Change of Venue: Original Venue Proper

Answer 27

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)

Question 28

Change of Venue: Original Venue Improper

Answer 28

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

Question 29

Forum Non Conveniens (Federal)

Answer 29

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

Question 30

Erie

Answer 30

State substantive law | Federal procedural law

Question 31

How to tell if something is substantive or procedural

Answer 31

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

Question 32

When to use federal common law

Answer 32

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

Question 33

Injunction Types

Answer 33

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

Question 34

Complaint Requirements - Generally

Answer 34

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

Question 35

Motions Against the Complaint

Answer 35

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

Question 36

When Special Pleadings Must Be Made

Answer 36

Fraud or Mistake | Special Damages Claims

Question 37

Motion for Judgment on the Pleadings

Answer 37

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

Question 38

Motion for a More Definite Statement

Answer 38

Asks a pleading be made more specific - disfavored by judges

Question 39

Motion to Strike

Answer 39

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

Question 40

Answer Requirements

Answer 40

May contain responses, affirmative defenses, counterclaims Failure to respond = admission Ordinarily must be served within 21 days of service of the pleading

Question 41

Common Affirmative Defenses

Answer 41

``` Assumption of the Risk Contributory Negligence Fraud Duress Release Statute of Frauds Statute of Limitations ```

Question 42

Reply

Answer 42

Plaintiff's answer to a counterclaim Same rules governing answers apply

Question 43

Amendments to Pleadings

Answer 43

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

Question 44

Doctrine of Relation Back

Answer 44

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

Question 45

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

Answer 45

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

Question 46

Types of Rule 11 Sanctions

Answer 46

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

Question 47

Permissive Joinder

Answer 47

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

Question 48

Compulsory Joinder

Answer 48

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)

Question 49

Indispensable Party Factors

Answer 49

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

Question 50

Intervention as of Right

Answer 50

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

Question 51

Permissive Intervention

Answer 51

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

Question 52

Timeliness of Intervention Factors

Answer 52

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

Question 53

Federal Interpleader Rule

Answer 53

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

Question 54

Statutory Interpleader

Answer 54

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

Question 55

Permissive Joinder

Answer 55

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

Question 56

Counterclaims

Answer 56

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

Question 57

Cross-Claims

Answer 57

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

Question 58

Impleader

Answer 58

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

Question 59

Class Requirements

Answer 59

Numerosity Commonality Typicality Adequacy

Question 60

Types of Certified Classes

Answer 60

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)

Question 61

Class Action Under Diversity

Answer 61

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)

Question 62

Mandatory Disclosures

Answer 62

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)

Question 63

Discovery Scope

Answer 63

Need not be admissible, just has to be relevant and proportional Can't get privileged information

Question 64

Limitations on Discovery

Answer 64

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

Question 65

Discovery Conference

Answer 65

Parties must confer at least 21 days before the scheduling conference

Question 66

Discovery Devices

Answer 66

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)

Question 67

Discovery Enforcement Mechanics

Answer 67

Motion to Compel: motion against a party failing to make automatic disclosures or respond to requests Sanctions Presumption instructions regarding destruction of electronic evidence

Question 68

Dismissal

Answer 68

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

Question 69

Default Judgment

Answer 69

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

Question 70

Summary Judgment

Answer 70

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

Question 71

Declaratory Judgment

Answer 71

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

Question 72

Jury Requirements

Answer 72

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

Question 73

Forms of Jury Verdicts

Answer 73

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

Question 74

Bench Trial

Answer 74

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

Question 75

Judgment as a Matter of Law

Answer 75

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

Question 76

Relief from a Judgment or Order

Answer 76

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

Question 77

Claim Preclusion (Res Judicata)

Answer 77

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

Question 78

Issue Preclusion (Collateral Estoppel)

Answer 78

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

Question 79

Issue Preclusion in Criminal Prosecution

Answer 79

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)