MBE Civil Procedure Flashcards
What is diversity jurisdiction?
Plaintiff and Defendant must reside in different states
What is domicile?
Physical presence and intent to remain
Where is a corporation domiciled?
Either where the corporation was incorporated and/or where their principal place of business is
What is complete diversity?
All plaintiffs must reside in different states from all defendants
In diversity, what if there are multiple plaintiffs and defendants and there is one common place?
Diversity is ruined
What is the amount in controversy requirement for diversity jurisdiction?
Must be in excess of $75,000
What is federal question?
Regarding federal law
What must be in complaint for federal question jurisdiction?
Plaintiff’s complaint must be explicitly about federal law
What is personal jurisdiction?
Court’s jurisdiction over a person
When will court always have person jurisdiction?
1) If you reside in the state where the case is being tried
2) If you are physically present in the state and accept service of process
3) When you consent to be sued in that jurisdiction
What is an example of consenting to personal jurisdiction in a state?
ex: In a contract stating, “Agree to bring suit in…”
When can court get jurisdiction over an out of state party?
When the person has sufficient minimum contacts & it does not violate due process
What are some examples of minimum contacts?
1) Relationships
2) How often you travel
3) Business
4) Contacts in that place
When does court have personal jurisdiction over a business?
When the business has “systematic and continuous business activity” & purposely availing themselves there
What does it mean to purposely avail yourself (business)?
Taking advantage of the laws of the state
What is removal?
Removing (transferring) a case to federal court
Who may remove a case to federal court?
Only the defendant can remove a case to federal court
When is removing a case proper?
When that case could have been originally filed in federal court
What happens if removal is improper?
Federal court will remand (send back) to the state court the case came from
Where can defendant remove a case to in diversity jurisdiction?
Must remove the case to a state where the plaintiff resides
Where can defendant not remove a case to?
Cannot remove a case, in diversity jurisdiction, to a state in which the defendant resides
What is venue?
What is the proper location/district for the case
How many places can venue be proper?
Multiple. Not limited to one place
Where is venue generally proper?
1) Where defendant resides
2) Where the substantial part of the events took place
3) If neither of the two above, then where the defendant is reachable (where court can get PJ)
What is personal service?
Handing a person the complaint
In personal service, who can serve the defendant?
A non-party who is over 18 years old
What if defendant is not at home when attempting service?
Can leave it with someone of suitable age
What if defendant not present for service at their place of business?
Can NOT leave it with someone at their job. Would need to try again
What are the three ways of serving someone?
1) Personal service
2) First class mail
3) Complying with any state statute
Can you serve someone through first class mail?
Yes, as long as defendant returns an acknowledgement form
Who can be served for a corporation?
Designated or authorized agent
Who can be served for a corporation if no designated or authorized agent?
Anyone in the corporation with sufficiently high placement
Questions for service of process?
1) Is it going to provide adequate notice?
2) Is it reasonably likely to inform the defendant
What is a 12(b)(1) motion?
Lack of subject matter jurisdicition
When can you bring a 12(b)(1) motion?
Any time
When must you make a motion to dismiss for lack of personal jurisdiction, improper venue, or improper service of process?
In the first response (can be in answer if that’s the first response)
What is the standard for summary judgment?
No genuine dispute of material fact
Up to when can a party move for summary judgment?
Until 30 days after the close of discovery.
What is the standard for a directed verdict?
A reasonable jury does not have a legally sufficient evidentiary basis to find for the other party
What is another name for directed verdict?
Judgment as a matter of law
When is directed verdict motion made by defendant?
Either after plaintiff’s case or after defendant rests
When can a plaintiff move for a directed verdict?
After defendant rests, but before case is sent to a jury
When can a party make a renewed motion for judgment as a matter of law?
Within 28 days of the verdict
Who can make a renewed motion for JMOL?
Only the party who originally moved for judgment as a matter of law
When does an action commence?
As Soon as complaint is filed with the clerk’s office
Elements required in a complaint?
1) Short and plain statement of the grounds for jurisdiction
2) Summary of the facts
3) Demand for relief
When does a complaint need to allege specific facts?
Fraud - pled with particularity
What happens if allegation is not admitted or denied in a complaint?
Deemed admitted
Where are affirmative defenses pled?
In the answer
When can you amend a pleading as a matter of right?
Within 21 days of service of the original pleading
How many times can you amend as a matter of right?
Once
When do you need leave of court to amend a pleading?
If after 21 days of service
When will an amended pleading relate back to the original pleading?
When the contents of the amended pleading arose out of the same conduct, transaction, or occurrence of the original pleading
Rule for getting evidence in discovery?
Evidence is subject to discovery as long as it is (1) not privileged, (2) relevant, and (3) proportional to the needs of the case
What is work product?
Any material prepared by counsel, or anyone working for counsel, for that case
When would Erie choice of law apply?
Only in diversity cases
What are the two scenarios for Erie choice of law?
1) State law v. state law
2) state law v. federal law
For Erie, state law v. state law which prevails?
Court will choose the law of the state where the court sits
For Erie, state law v. federal law which prevails?
1) Substantive state law
2) Procedural federal law
What law prevails if conflict between state and federal law?
Federal law prevails
Can you remove a case if filed in state court where defendant resides?
No, if it is based on diversity jurisdiction
In a diversity case, what law does the court apply?
The law that would be applied by the courts of the state in which the federal court is located
For cases based solely on diversity, is supplemental jurisdiction available for claims by the plaintiff against persons made parties under the impleader rules?
No, unless full diversity for that claim also
If the case is diversity, does the court have supplemental jurisdiction over defendant’s claims over a third party?
Yes
When does the rule that if removing a claim to federal court, it cannot be in the same state as the defendant?
Only in diversity cases. NOT when it’s federal question
Within how many days of meeting and conferring must the parties provide the names, addresses, and telephone numbers of individuals likely to have discoverable information that disclosing party may use to supports its claims or defenses?
Within 14 days
When would electronically stored information not need to be produced?
When the responding party identifies it as from a source that is not reasonably accessible because of undue burden or cost
When is a letter from a nontestifying expert admissible?
Only upon a showing of exceptional circumstances under which it is impracticable to obtains facts or opinions by other means
For venue purposes, where is a business entity deemed to reside in?
A business entity is deemed to reside in any judicial district in which the defendant is subject to the court’s personal jurisdiction with respect to the civil action in question
When a transfer is based on the ground that venue was improper, which law applies in the transferee court?
The law of the transferee court
Note: Venue here is improper. If convenience, then law of transferor court applies
If venue is proper, and defendant later files motion to change venue, is this proper?
Yes because 12(b) is available only for improper venue. When venue is right, can’t move under 12(b). Transfer is then to the discretion of the judge
Where is venue proper?
1) District where any defendant resides, if all defendants are residents of the state in which the district is located; and
2) District in which a substantial part of the events or omissions giving rise tot he claim occurred
3) If nowhere in U.S. satisfies 1 or 2, then in the district that has PJ over defendant
What are three elements of granting a TRO without notice of the hearing to the adverse party?
1) the moving party gives specific facts in an affidavit or in verified complaint to establish immediate and irreparable injury will result before the adverse party can be heard
2) moving party certifies in writing all efforts to give notice of the hearing, and why notice should not be required, if any reason
3) moving party pays some money to pay for costs if other party is wrongfully enjoined
What is claim preclusion?
Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is barred by claim preclusion
What is the difference between claim and issue preclusion?
Claim preclusion focuses on the scope of a cause of action while issue preclusion focuses on the narrower issue that was litigated and that is relevant in the second case
What is needed for issue preclusion to apply?
The judgment must have been final, the issue actually litigated, and it must have been essential to the judgment
What are the requirements for claim preclusion?
1) Same claimant suing the same defendant
2) Valid final judgment on the merits
3) Case 1 and Case 2 must be the same claim (T/O”)
If failed to argue something that you knew about and the case was dismissed under forum non covneniens, can you go back and make a motion for relief of judgment?
No, because you knew about the argument when motion was pending and didn’t make it
When can you no longer make a JMOL?
When case is submitted to the jury
If a JMOL is combined with motion for a new trial, what happens if the judge grants the JMOL?
The must also rule conditionally on the new trial motion. Later, if JMOL is reversed on appeal, the new trial will then occur automatically (unless the appeals court says otherwise)
What is the term used to describe the effects of claim preclusion?
“Merger” and “bar”
When plaintiff wins, the cause of action is merged. If defendant wins, the plaintiff is barred
If a juror failed to disclose information on voire dire, how would a judgment be reversed?
A proper showing that:
1) The juror failed to answer honestly a material question during voire dire; and
2) a correct response would have provided a valid basis for a challenge for cause
(Note: if juror doesn’t disclose because he innocently misunderstands the question–new trial not granted)
When the reason for seeking relief from a judgment is mistake, inadvertence, surprise, or excusable neglect, when must the motion be made?
Must be made no more than one year after the entry of the judgment
Who is a required party for joinder?
Any person who either:
1) is required for the court to be able to accord complete relief; or
2) has such an important interest such that not joining them will cause impractical impairment in protecting their interest or expose an existing party to substantial risk of multiple liability
Who may be permissively joined?
1) T/O; and
2) common question of law or fact
When can a nonparty move for permissive intervention?
1) Federal statute provides a conditional right; or
2) nonparty has a common question of law or fact
What is the standard for a court ruling if an absent party should but cannot be joined?
The court will determine whether, in equity and good conscience, the case should proceed without the absentee (if absent party is indispensable, dismissal necessary)
What is necessary for a proper cross claim?
1) Must arise from the same T/O as original action; and
2) ask for actual relief from the co-party
What are the requirements for the Seventh Amendment’s right to a jury trial?
Claim must be
1) Legal in nature; and
2) asserted against the type of defendant that was suable at common law in 1791
What a re some of the cases that do not have a jury requirement under the 7th Amendment?
Maritime, lawsuits against the government itself, or for many patent claims
Can a motion opposing summary be supported with affidavits?
Yes, if the affidavit:
1) Is based on personal knowledge;
2) Sets forth such facts as would be admissible during trial; and
3) Shows that the affiant is competent to testify
Why can’t Congress extend federal jurisdiction to claims of citizens in the same state under state law?
Article 3 of the Constitution requires diversity.
What does Article 3 say about the judicial power?
It shall extend to cases arising under the Constitution, laws, or treaties, and diversity
What is the standard for the court to modify a pretrial order (the conference right before trial)?
The court may modify the order issued after a final pretrial conference only to prevent manifest injustice
When is there manifest injustice?
Facts need to show it to you/make clear. Don’t assume manifest injustice
If an indispensable party’s rights are impaired, must the court dismiss the case?
No. Court will looks to several factors but if just impair and not prejudice, court likely won’t dismiss cause the other party can just file suit later
In a jury trial, what will the court do if the facts are consistent with the verdict?
The verdict will be entered
In a jury trial, if the findings of fact are inconsistent with the verdict, what will the court do?
The court MAY:
1) enter a judgment consistent with the interrogatory answers, notwithstanding the general verdict
2) direct the jury to deliberate further; or
3) order a new trial
In a jury trial, what if the jury’s answers are inconsistent with each other and the verdict entered?
Judge must send the back back for further deliberation or order a new trial
