MBE Civil Procedure

Question 1

What is the amount-in controversy req for a case to have diversity jurisdiction?

Answer 1

The claim must exceed $75K

The value of a single plaintiff’s claims against each of multiple defendants can’t be aggregated if the claims are separate and distinct and the Ds aren’t jointly liable with respect to the claims.

Claims must be independently meet the req if unrelated

Question 2

Can you aggregate unrelated claims against the same defendant to meet the amount-in-controversy req?

Answer 2

Yes

Question 3

Can you aggregate unrelated claims against different defendants to meet the amount-in-controversy req?

Answer 3

No

Question 4

Summary Judgment

Answer 4

The movant must show:
> there is no genuine dispute of material facts
> the movant is entitled to judgment as a matter of law

Question 5

For subject matter jurisdiction, is diversity determined at the time of action or time of filing?

Answer 5

The parties need to live in different states at the time of filing

Question 6

how do you get subject matter jurisdiction?

Answer 6

(1) Federal question
> Ps claim based on fed law

(2) Diversity
> div of citizenship; aka completely diff sides of v.
> exceeds 75K

Question 7

At what time must diversity exist?

Answer 7

when the complaint is filed

Question 8

can you sue multiple Ds to reach the amount in controversy of 75K

Answer 8

No; you cant aggregate claims against diff defendants & cant join Ps either

but you CAN aggregate claims against 1 defendant
(each singular P against each singular D must meet the req) (unless Ds are jointly liable then ok)

Question 9

diversity

Answer 9

(1) case between a P and D that are from different states (or state and foreign country)
(2) AIC exceeds 75K

Question 10

minimal diversity

Answer 10

at least 1 P and 1 D are from diff states

Question 11

how is citizenship of an individual determined for diversity?

Answer 11

they are a citizen of the state/country they are domiciled in; meaning that is their permanent residence bc they reside there + intent to remain

*u can have only 1 legal domicile

Question 12

whose citizenship is looked at if someone has a representative?

Answer 12

the citizenship of the representative controls
(except for guardianship/estates bc decedent’s domicile controls)

Question 13

where are corporations domiciled?

Answer 13

> where they’re incorporated
AND
where they have their principal place of business (the exec offices)

*remember you need complete diversity so consider EVERY state where they have citizenship

Question 14

where are Partnerships and unincorporated associations domiciled?

Answer 14

> every state where its members are citizens
so its rare for them to be in fed court

Question 15

Can you move or assign a claim just to create/destroy diversity?

Answer 15

Yes, as long as it is not a sham
(partial assignment wont destroy)

Question 16

aggregation for AIC

Answer 16

> 1 P against 1 D must satiafy amount
- you can aggregate against the same D
- cant add multiple Ds/Ps to reach AIC

Question 17

True or False:
Claims brought under the Federal Interpleader Act only require minimal diversity.

Answer 17

true; any 2 adverse claimants from diff states

Question 18

What is removal and when it is allowed?

Answer 18

> removal is moving a case from state court to federal court
(you’re getting subject matter jurisdiction)

> only allowed when the case could’ve bene brought in federal court to begin w

Question 19

Who can remove?

Answer 19

ONLY defendants can remove
> all Ds must consent to removal within 30 days of service

Question 20

Can defendants remove a case if the state case is already in their home state?

Answer 20

No; they can’t remove bc they dont need to have a fear of disadvantage

Question 21

When is removal based on diversity jurisdiction proper?

Answer 21

> complete diversity
exceeds 75K
D isn’t removing in a state where they’re a citizen of

Question 22

Max time limit for removing a case to fed court

Answer 22

1 year from the commencement of the action unless P acted in bad faith

Question 23

removal procedure

Answer 23

> notice of removal is filed in the Fed court with a copy to the state
(the filing automatically ends state court’s jurisdiction)
if P thinks its improper they can file a petition for remand and fed court will decide whether to grant/deny

Question 24

general rule of Supplemental Jurisdiction

Answer 24

A federal court with SMJ over a case can hear additional claims that on their own don’t have SMJ if all the claims constitute the “same case or controversy”

SMJ = same case or controversy

Question 25

Supplemental Jurisdiction:
federal question cases

Answer 25

If a P has a federal question claim + state law claim against the same D, the fed ques can act as an anchor and the fed court MAY exercise supplemental jurisdiction over the state law claim

*applies regardless of involving the joinder of an addt’l party

Question 26

Supplemental Jurisdiction:
diversity jurisdiction cases

Answer 26

> state law claims must be part of the “same case or controversy”
Supp. jurisdiction is barred in:
- Plaintiff claims against ppl joined
- Claims by parties trying to intervene/be joined as Plaintiffs

> Supplemental claims by Defendants are allowed if they satisfy the common nucleus of operative fact test bc they didnt choose to sue
Supplemental claims by Plaintiff ok is brought against a single D and no joinder is involved

Question 27

can plaintiffs usually get in under supplemental jurisdiction?

Answer 27

no

Question 28

Supplemental Jurisdiction:
diversity jurisdiction cases

If there is multiple Ps and a single D can they have supplemental jurisdiction if not all the Ps meet the AIC?

Answer 28

Yes if there are Multiple plaintiffs + single defendant the claim of one diverse plaintiff against a single defendant satisfies the jurisdictional amount

Question 29

Supplemental jurisdiction:
Federal question
vs.
Diversity

Answer 29

In federal questions cases
> claims have to be related to have Supp. Juris.

In diversity cases:
(First check for the diversity requirements)
> Available if the claims are brought by defendants
> Limited if claims brought by plaintiffs
- Always ok if the case has just 1 D (bc no joinder rules)
> Compulsory claims will generally get Supp. Juris.
> Cross-claims generally ok if
- same transaction or occurrence
- brought by D

Question 30

compulsory counterclaim
vs.
Permissive counterclaim

Answer 30

Compulsory:
> one that arises out of the same transaction or occurrence
as the opposing party’s claim

Permissive:
> one that does NOT arise out of the same transaction or occurrence as the main claim
(must the 2 diversity reqs)

Question 31

true or false:
Supplemental jurisdiction works for federal question cases if the additional claims are related

Answer 31

true

Question 32

Does Supplemental jurisdiction in diversity cases ever allow you to join non-diverse parties?

Answer 32

no; must first meet the two diversity requirements

Question 33

What are the 3 bases for general in personam jurisdiction

Answer 33

(1) domicile
(2) you were physically present in a state and got served
(3) consent to being sued in that state

Question 34

How do corporations satisfy physical presence for personal jurisdiction?

Answer 34

the corporation has to be “at home” in the forum state
(1) the state where its incorporated
or
(2) the state where it has its principal place of business

Question 35

can personal jurisdiction be waived?

Answer 35

yes

Question 36

when should a defendant raise lack of personal jurisdiction?

Answer 36

Lack of personal jurisdiction must be raised at the first opportunity, or it’s waived

> in pre-answer motion, if not the answer

Question 37

what does Due Process require between the defendant and the forum state for in personam jurisdiction?

Answer 37

minimum contacts between the defendant and the forum state

> was there purposeful availment?

Question 38

General vs. Specific personal jurisdiction

Answer 38

GENERAL:
allows suit on any claim

SPECIFIC:
allows claims that have a connection to the forum state.

Question 39

What do long arm statutes allow?

Answer 39

Every state has a long-arm statute which allows specific in personam jurisdiction; over out-of-state defendants for particular transactions involving that state.

*A an B live in FL but were driving through Georgia when they hit C. Claim is connected to the state so long arm statute can cover it and give specific jurisdiction

Question 40

When deciding a motion to dismiss for failure to state a claim, the court engages in a two-step inquiry: (1) identify allegations that are ____________________, and (2) ask whether remaining allegations make a ______________________ case for recovery.

Answer 40

When deciding a motion to dismiss for failure to state a claim, the court engages in a two-step inquiry:
(1) identify allegations that are conclusory, and
(2) ask whether remaining allegations make a plausible case for recovery.

Question 41

Is a federal court subject to the same extent of the long arm statute as the state is?

Answer 41

Yes; if a long arm statute doesnt grant PJ to a state court, it wouldnt to a federal court either

Question 42

2 questions for Personal Jurisdiction analysis

Answer 42

(1) whether the state’s long arm statute grants jursidction AND
(2) whether the 14th amend DP clause allows the court to enforce a judgement against the D

Question 43

How many days after a complaint is filed should service be made?

Answer 43

90 days

Question 44

What is an interlocutory review and when is it available?

Answer 44

An appeal that’s taken when no final judgment has been entered is called an “interlocutory review”

It’s available when (1) the trial court certifies in writing that the interlocutory involves a controlling question of law that has substantial grounds for difference of opinion and immediate appeal may speed up finishing the litigation & (2) COA agrees to take it

Question 45

In class action settlements, is a court required to approve the settlement agreement?

Answer 45

Yes, the court is required to approve the settlement agreement by holding a hearing to ensure it’s fair

Question 46

Remittitur vs. Additur

Answer 46

Remittitur
> way of decreasing damages
> allowed in Fed court, P offered choice btween ne trial or reduced damages

Additur
> increasing damages
> NOT allowed in Fed court

Question 47

Erie:
what law do you apply if the court is exercising federal question jurisdiction?

Answer 47

only fed law; no need to examine state law

Question 48

Motions for sanctions

Answer 48

> can be filed after violation of Rule 11
Must be served on a separate motion
Can’t file if the challenged mistake is withdrawn/appropriately corrected within 21 days after the service

Question 49

Is a potential D that may be jointly and severally liable a required party?

Answer 49

no

Question 50

motion for judgment on the pleadings

Answer 50

appropriate when the parties are only in the pleading stage

Question 51

True or false:
Affidavits must be based on personal knowledge

Answer 51

true

Question 52

Can a workers’ compensation action in state court arising under state law, be removed?

Answer 52

No; a claim arising under a state workers’ compensation law where the action was filed cant be removed

Question 53

is the right to a jury trial in civil cases only guaranteed in federal courts?

Answer 53

Yes; unless states say they also allow it

Question 54

must permissive counterclaims be supported by an independent jurisdictional basis?

Answer 54

yes

Question 55

For impleader does citizenship of the third-party defendant and the amount of the claim against them matter?

Answer 55

no bc for diversity cases, impleader already had SMJ to begin with

Question 56

Are cross-claims compulsory?

Answer 56

never

Question 57

Permissive joinder under supplemental jurisdiction

Answer 57

an additional claim doesn’t need to meet the 75k req for supplemental jurisdiction but when the additional claim is asserted by a plaintiff seeking to join under Rule 20 (permissive joinder), they have to meet the complete diversity req

Question 58

In trying to get supplemental jurisdiction can a defendant be added through joinder if they have SMJ through diversity and it’d be destroyed?

Answer 58

No; bc we cant create a loophole to bypass diveristy

Question 59

When are two claims considered related for purposes of supplemental jurisdiction?

Answer 59

When the claims arise out of a common nucleus of operative fact

Question 60

What are the four requirements for a class action? (CANT)

Answer 60

(i) The class must be so numerous that joinder of all members is impracticable (NUMEROSITY);

(ii) There must be questions of law or fact that are common to the class (COMMINALITY);
- common Qs predominate over individual Qs thats why class action

(iii) The claims or defenses of the representatives must be typical of the class (TYPICALITY); and

(iv) The representatives must fairly and adequately protect the interests of the class (ADEQUACY).

Question 61

What is the due process requirement for in personam jurisdiction?

Answer 61

Due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

Question 62

Generally, where is venue proper?

Answer 62

(i) where defendant resides, if all defendants reside in the same state in which the district is located; or

(ii) where a “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.

Question 63

Under the Erie Doctrine, what law governs in a diversity action?

Answer 63

the substantive law of the state there court is in if there is no federal law on point

but the court will apply federal procedural law, even if a state rule or statute is in conflict.

Question 64

What are the required elements for a complaint?

Answer 64

(i) A short and plain statement of establishing grounds for subject matter jurisdiction;

(ii) A short and plain statement of the claim establishing entitlement to relief; and

(iii) A demand for relief

Question 65

What are the requirements for a plaintiff seeking a preliminary injunction?

Answer 65

A plaintiff seeking a preliminary injunction must establish that:

(i) He is likely to succeed on the merits;

(ii) He is likely to suffer irreparable harm in the absence of relief;

(iii) The balance of equities is in his favor; and

(iv) The injunction is in the best interest of the public.

Question 66

When can a party amend a pleading?

Answer 66

(1) Amendment as of Right:

If you file a pleading (like a complaint) and the other party hasn’t responded yet, you can change it once within 21 days without needing permission from the court.

(2) Amendment after a Responsive Pleading:

Once the other party (defendant) responds with their own pleading (like an answer), or if they file a specific type of motion (like a motion to dismiss under Rule 12(b)), you have 21 days from that point to amend your pleading.

*Remember that the court should freely give leave to amend a pleading when justice so requires.

Question 67

When may a plaintiff join as a permissive joinder?

Answer 67

a person may join in one action as plaintiff if:

(i) They assert any right to relief arising out of the same transaction, occurrence and

(ii) Any question of law or fact common to all plaintiffs will arise in the action.

Question 68

Under Rule 20 permissive joinder, does the plaintiff to be joined have to meet the requirements of federal subject matter jurisdiction?

Answer 68

not for the 75K but for diversity yes

Question 69

When must an objection to improper venue be raised?

Answer 69

An objection to improper venue must be raised in:
> a pre-answer motion to dismiss or
> in the first responsive pleading

Question 70

What are the five bases for in personam jurisdiction?

Answer 70

(1) Voluntary Presence
(2) Domicile
(3) Consent
(4) Long-arm statutes
(5) Attachment

Question 71

What is a compulsory counterclaim?

Answer 71

one that has to be brought or its waived. It must be brought if:
(i) The claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim; and

(ii) The claim does not require adding another party over whom the court cannot acquire jurisdiction.

Question 72

What are the three types of personal jurisdiction?

Answer 72

(1) In personam jurisdiction
(2) In rem jurisdiction
(3) Quasi-in-rem jurisdiction

Question 73

What are the three types of mandatory disclosures?

Answer 73

(i) Initial disclosures at or w/in 14 days;

(ii) Disclosures of expert testimony 90 days before trial; and

(iii) Pretrial disclosures 30 days before trial.

Question 74

In assessing whether a case can be filed in federal court, when is diversity determined?

Answer 74

Diversity is determined at the time the case is filed.

Question 75

How does a party make a demand for a trial by jury?

Answer 75

> Any party may make a written demand for a trial by jury

> The demand can be made separately or in a pleading

> must be served within 14 days after service of the last pleading, and filed with the court within a reasonable time after service.

Question 76

How many interrogatories may a party serve on another party?

Answer 76

no more than 25 written interrogatories

Question 77

How long may a temporary restraining order remain in effect?

Answer 77

for only a limited number of days, but no longer than 14 days unless good cause exists or the adversary consents.

Question 78

How much time does a party have to respond to interrogatories?

Answer 78

The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.

Question 79

What three factors will a court consider when deciding to set aside a default judgment?

Answer 79

(i) Whether the defendant’s failure to act was willful;

(ii) Whether setting the default aside would prejudice the plaintiff; and

(iii) Whether the defendant has presented a meritorious claim.

Question 80

How long does a defendant have to respond to a complaint?

Answer 80

within 21 days of service of process

Question 81

Who is responsible for serving the summons and complaint, and when must it be served?

Answer 81

> The plaintiff is responsible for serving the summons and complaint on the D
Must serve within 90 days after filing the complaint.

Question 82

How many peremptory challenges and challenges for cause does a party have?

Answer 82

Each party in a civil case gets 3 peremptory challenges.

Each party is entitled to an unlimited number of challenges for cause.

Question 83

What is the rule for removal when there are multiple defendants?

Answer 83

All Ds who have been properly joined and served are required to consent to the removal

Question 84

What seven defenses may be raised in a motion filed under Rule 12(b)?

Answer 84

(i) Lack of subject matter jurisdiction
(ii) Lack of personal jurisdiction;
(iii) Improper venue;
(iv) Insufficient process;
(v) Insufficient service of process;
(vi) Failure to state a claim upon which relief can be granted; and
(vii) Failure to join a necessary or indispensable party under Rule 19.

Question 85

Who has the burden of proof in a claim for summary judgment?

Answer 85

The movant has the burden on an MSJ
If movant makes prima facie showing then burden shifts to opposing party to show genuine issue of material fact

Question 86

Which defenses are waived unless raised in the pre-answer motion or answer?

Answer 86

personal jurisdiction, improper venue, insufficient process, and insufficient service of process

Question 87

What is the standard used in deciding a motion to dismiss for failure to state a claim upon which relief can be granted?

Answer 87

a claim for relief can be dismissed if it either
(i) fails to assert a legal theory of recovery that is cognizable at law, or
(ii) fails to allege facts sufficient to support a cognizable claim.

Question 88

What is removal jurisdiction and who generally has the right to remove?

Answer 88

> Removal moves a case filed in state court to federal court

> Only the defendant may remove.

Question 89

What is a judgment as a matter of law, and what is the standard used in deciding these motions?

Answer 89

> happens after a party fully heard and at any time before case goes to the jury

> court may grant if it finds that there’s insufficient evidence for a jury to reasonably find for that party.

Question 90

What are six grounds for a court to grant a motion for a new trial?

Answer 90

(i) Error at trial that renders the judgment unfair;
(ii) Newly discovered evidence that existed at the time of the trial was excusably overlooked and would likely have altered the outcome of the trial;
(iii) Prejudicial misconduct of counsel, a party, the judge, or a juror;
(iv) A verdict that is against the clear weight of the evidence;
(v) A verdict that is based on false evidence; or
(vi) A verdict that is excessive or inadequate.

Question 91

What are the two ways in which a defendant can consent to in personam jurisdiction?

Answer 91

1. Express consent:
   D agrees to submit to the court’s jurisdiction or stipulates to personal jurisdiction once an action is brought
2. Implied consent:
   through conduct, such as filing a counterclaim or driving a vehicle within a state

Question 92

What are the requirements of claim preclusion?

Answer 92

Claim preclusion (res judicata) requires:

(i) A valid final judgment on the merits;

(ii) Sufficiently identical causes of action; and

(iii) Sufficiently identical parties.

Question 93

Federal courts of appeals have jurisdiction over appeals of what types of judgments?

Answer 93

over appeals of the final judgments of the district courts

Question 94

For the purposes of diversity jurisdiction, how is a corporation’s citizenship determined?

Answer 94

state where they’re incorporated (can be multiple) AND the state where it has its principal place of business

Question 95

What is the “well-pleaded complaint rule?”

Answer 95

the determination of federal question jurisdiction made by considering only the necessary elements of the plaintiff’s cause of action
(not anticipated defenses, answers, or counterclaims)

Question 96

Where is an individual’s domicile and how is the domicile changed?

Answer 96

the state where the individual is present and intends to reside for an indefinite period.

Can be changed if they:
1. Establish presence in a new place; and
2. Manifest intent to remain there for an indefinite period.

Question 97

When and how is the amount in controversy determined for diversity jurisdiction purposes?

Answer 97

The amount in controversy must exceed $75K exclusive of interest, costs
> It’s determined at the time the action is commenced in federal court, or at the time of the removal.

Question 98

How is a corporation’s “principal place of business” determined?

Answer 98

the nerve center, typically, the corporate headquarters.

Question 99

What is the purpose of a long-arm statute?

Answer 99

A long-arm statute authorizes personal jurisdiction over nonresidents who engage in some activity in the state or cause some action to occur within the state

A long-arm statute authorizes jurisdiction to the extent permissible under the Due Process Clause.

Question 100

May a single plaintiff aggregate claims against multiple defendants to satisfy the amount-in-controversy requirement?

Answer 100

No; the claims against each defendant must be separate and distinct

*unless Ds are jointly liable to P, then P can aggregate

Question 101

When a case is removable from the outset, how does a defendant begin the process for removal?

Answer 101

D must file a notice of removal with the Fed court within 30 days after receipt or service of the initial pleading or summons.

Question 102

Typically, if a defendant is voluntarily present in the forum state and served with process there, then the court has personal jurisdiction over the defendant.

What are two exceptions?

Answer 102

(1) If a plaintiff fraudulently brings a defendant into the state just to serve them

(2) If a defendant is merely passing through the state to attend other judiciary proceedings

Question 103

Reqs for removing based on:
Federal Question

Answer 103

Removal is only proper if it could’ve been brought in Fed court in the first place (by D w/in 30 days of service)

For Federal Question removal:
> The federal question has to appear on the face of the well-pleaded complaint

Question 104

Reqs for removing based on:
Diversity

Answer 104

Removal is only proper if it could’ve been brought in Fed court in the first place (by D w/in 30 days of service)

For Diversity removal:
> $75k+
> Compete diversity
> D is NOT from the state they’re removing to

Question 105

supplemental jursidction

Answer 105

a claim that normally wouldn’t have subject matter jurisdiction can be brought if it stems from the same case or controversy aka it arise from the same common nucleus of operative fact as the claim that does have SMJ

Question 106

Reqs for Supplemental jurisdiction based on OG claims of:
Federal Question

Answer 106

> the claim w federal question will be the “anchor” claim

> applies whether or not those claims involve the joinder of an additional party

Question 107

Reqs for Supplemental jurisdiction based on OG claims of:
Diversity Jurisdiction

Answer 107

> State-law claims part of the “same case or controversy” (common nucleus of
operative fact)

CANT be brought by:
> Ps against ppl made parties by rules 14, 19, 20, or 24;
> ppl trying to intervene as Ps under rule 24
> parties trying to be joined as Ps under rule 19

CAN:
> By Ds
> Ps if its a single P and single D

Question 108

Compulsory counterclaims

Answer 108

> must arise out of the same transaction or occurrence

> usually brought by defendants, so may come in w/out the AIC req

Question 109

Permissive counterclaim

Answer 109

> does NOT arise out of the same
transaction or occurrence as the main claim

> can only be heard by a fed court if it independently satisfies the 2 diversity reqs

Question 110

Supplemental jurisdiction: Crossclaim reqs

Answer 110

> Must be from same transaction or occurrence
Can’t be asserted by a P against someone made a party under 14, 19, 20, 24
If the crossclaim brought by D then its fine

Question 111

2 questions for Personal Jurisdiction

Answer 111

(1) Has the basis for exercising PJ over an out-of-state defendant been authorized by statute/rule of court?
(2) does the assertion of personal jurisdiction comport w due process by being fair play and substantial justice?

Question 112

ways for a court to have personal jurisdiction over someone

Answer 112

(1) voluntary
(2) domicile
(3) consent
(4) long-arm statute
(5) attachment of property

Question 113

due process reqs for personal jurisdiction

Answer 113

satisfied if
> personal jurisdiction exists
> or if non-resident D has minimum contacts w the forum state
- min contacts through purposeful availment
- those contacts can be general or specific
> fair play and substantial justice

Question 114

the long arm statute gives in personam jurisdiction over out-of-state defendants but ONLY for the
particular transactions involving that state.

Question 115

3 stages of mandatory disclosures in discovery

Answer 115

(1) initial disclosures
(2) disclosure of expert witnesses
(3) pretrial disclosures

Question 116

when is there specific personal jurisdiction

Answer 116

Specific personal jurisdiction exists when
(1) the plaintiff’s claim arises from the defendant’s minimum contacts with the forum state and
(2) the exercise of jurisdiction would comply with notions of fair play and substantial justice.

Question 117

Does failure to prove service of process affect the validity of the service?

Answer 117

No; the plaintiff must provide proof of service of process to the court when service was properly made in the U.S. and not waived by the defendant. But a failure to prove service of process does not affect the validity of the service.

Question 118

where is venue proper?

Answer 118

(1) where the D resides
(2) where a substantial part of the events happened
(3) where D is reachable/have PJ

Question 119

what items will be waived if they’re not included in the answer?

Answer 119

(1) admissions and denials
(2) motions that have not been waived
(3) affirmative defenses, and
(4) compulsory counterclaims

must raise in answer or Otherwise, they’ll be waived.

Question 120

what does a court consider in a motion to dismiss?

Answer 120

the court must
(1) treat all well-pleaded facts in the complaint as true and
(2) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant.

Question 121

When SMJ is through diversity,
when is supplemental jurisdiction NOT permitted?

Answer 121

if the supplemental claim:
(1) would destroy complete diversity of citizenship
or
(2) seeks $75k or less and made is by a plaintiff (1) against parties added through joinder, intervention, or impleader or (2) seeking to join through compulsory joinder or intervention

Question 122

who can you serve interrogatories on?

Answer 122

only parties not non-parties

Question 123

When can aparty may move for judgment as a matter of law (JMOL)?

Answer 123

at any time before the case is submitted to the jury

Question 124

What does a court consider for a judgment as a matter of law?

Answer 124

> courts views the evidence and draws all reasonable inferences in the light most favorable to the nonmovant
ignore any evidence that’s favorable to the movant that the jury is not required to believe and
not consider the credibility of witnesses or evaluate the weight of evidence.

Question 125

how many ppl in a jury?

Answer 125

A jury verdict must be unanimous and returned by a jury of at least 6 (but no more than 12) members unless the parties stipulate otherwise.

Question 126

3 standards of appellate review

Answer 126

> de novo (for Qs of law)

> substantial evidence (jury verdicts) & clearly erroneous (for judge findings of fact)

> abuse of discretion (issues decided by lower courts)

Question 127

2 types of issue preclusion (collateral estoppel)

Answer 127

> Mutual – where parties from the first action assert collateral estoppel in a subsequent action against other parties from the first action

> Nonmutual – where nonparties from the first action assert collateral estoppel in a subsequent action against parties from the first action

Question 128

Can a federal court in a diversity action have supplemental jurisdiction over a permissive counterclaim under 75k?

Answer 128

no

Question 129

True or false:
In a diversity case, Plaintiff can aggregate all her claims against D to meet the $75K, regardless of whether the claims are related.

Answer 129

true; against the same D yes

> against diff Ds No
Ps w diff claims also no

Question 130

does a proposed settlement of class action have to be approved by the court?

Answer 130

yes; a proposed settlement may be approved only after the court holds a hearing and issues findings that the settlement is fair, reasonable, and adequate.

Question 131

what types of cases does a federal court not have subject matte jurisdiction over?

Answer 131

probate matters or domestic relations like divorce/alimony

Question 132

when can a federal court exercise PJ through nationwide service of process?

Answer 132

only when a federal statute authorizes nationwide service of process

Question 133

when does the “100-mile bulge rule” establishes personal jurisdiction over a party

Answer 133

(1) added to the suit through impleader (third-party practice) or required joinder AND (2) served with process within 100 miles of the federal court where the suit is pending.

Question 134

When a defendant is a nonresident of the U.S. where is venue proper?

Answer 134

When a defendant is a nonresident of the U.S., venue is proper in any federal judicial district.

Question 135

If D requests it/or court orders it, a jury can be polled individually to see if the verdict is reached unanimously. if a juror gives a response that would ruin a unanimous verdict, what needs to happen?

Answer 135

if a poll reveals that verdict is not unanimous, the court can:
> order a new trial
> order further deliberation

Question 136

within how many days does a movant have to file a renewed motion for JMOL?

Answer 136

28 days JMOL

Question 137

what type of law should federal courts apply to federal questions?

Answer 137

Federal courts must apply FEDERAL procedural and FEDERAL substantive law to claims arising under federal-question jurisdiction.

a claim arises under diversity jurisdiction, the court must apply FEDERAL procedural law and STATE substantive law.

Question 138

what location/what state is looked at to check for long-arm personal jurisdction?

Answer 138

the forum state

Question 139

when is a preliminary injunction not necessary

Answer 139

When monetary damages can adequately compensate

A federal court may grant a preliminary injunction when
(1) the movant is likely to succeed on the merits
(2) the movant is likely to suffer irreparable harm in the absence of relief
(3) the balance of equities is in the movant’s favor, and
(4) the injunction is in the best interests of the public.

Question 140

how many days after the last filed pleading does a party have to request a jury trial?

Answer 140

14 days

Question 141

Interrogatories

Answer 141

> written questions served on another PARTY (not witnesses, experts, etc)
up to 25
written responses due within 30 days of service

Question 142

A party may conduct an oral deposition without the court’s leave or the parties’ stipulation unless:

Answer 142

(1) it’s passing the 10 depo limit
(2) the deposition is sought before the initial planning conference, or
(3) the deponent was already deposed in the case.

Question 143

a federal appellate court generally has no jurisdiction to hear an appeal until what?

Answer 143

Until the district court has issued a final judgment—i.e., a decision that fully resolves the dispute on the merits. However, the interlocutory appeals statute allows certain orders to be appealed before the entry of a final judgment.

Question 144

Elements required by the Class Action Fairness Act which gives a federal court an alternative basis for subject-matter jurisdiction over a class action

Answer 144

(1) the class contains 100 members
(2) at least one class member is diverse from at least one defendant, and
(3) the amount in controversy of the aggregated claims exceeds $5 million

Question 145

Unless the court orders otherwise, a responding party generally must respond to an amended pleading within what times?

Answer 145

Within
(1) the time that remains to respond to the original pleading or
(2) 14 days after service of the amended pleading—whichever occurs later.

Question 146

When is a jury-instruction error preserved for appeal?

Answer 146

When a party timely objects to the instruction on the record and states the grounds for the objection.

An objection is timely if it is made promptly after learning that a jury instruction has been or will be given OR that a request has been refused.

Question 147

Parties must generally make initial disclosures of all documents and items that the party possesses and may use to support a claim or defense. If documents or items are in the possession of a nonparty, what must the party do to produce those docs?

Answer 147

A party may issue a subpoena to compel the nonparty produce those documents or items.

Question 148

When can a district court correct a mistake in a judgment, order, or other part of the record?

Answer 148

Before an appeal is docketed in the appellate court
> A district court can correct a mistake on its own initiative or pursuant to a party’s motion

After an appeal has been docketed
> the district court can correct the mistake only with the appellate court’s leave.

Question 149

A party may obtain extraordinary relief within one year of the entry of a final judgment based on (1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence, or (3) an opposing party’s fraud, misrepresentation, or misconduct.

Question 150

allegations that are not denied will usually be treated as admissions.
What type of allegations wont be treated as admissions if they’re not denied?

Answer 150

damages-related allegations cannot be admitted by the defendant’s failure to deny them in an answer.

Question 151

when will persona jurisdiction not be fully waived?

Answer 151

when there was no pre-answer motion > an answer that didnt assert lack of PJ > amendment before 21 days

then ok bc it was amended within the ok timeframe

Question 152

when can a party move for JMOL and for what

Answer 152

> A party can move for JMOL whenever the other party has been fully heard on that matter

> can move for JMOL with respect to any claim or defense

Question 153

If a P fails to prosecute the case or comply with a rule or court order and then court dismisses the case, what does that mean?

Answer 153

that P cant bring it again bc there was an involuntary dismissal aka with prejudice

Question 154

How can process be served

Answer 154

(1) following the rules of the state where the court is or where service is made
(2) delivering the summons and complaint to D personally (or to his/her authorized agent)
(3) leaving the summons and complaint at D’s dwelling with a resident of suitable age and discretion

Question 155

true or false:
An appellate court has discretion to permit an appeal from an order granting or denying class action certification if filed within 14 days

Answer 155

true

> If the appellate court permits the appeal, the district court proceedings are stayed pending the appeal only when ordered by the district court or the appellate court.

Question 156

are preliminary injunctions immediately appealable?

Answer 156

yes as a matter of right

Question 157

issue not clearly substantial/procedural + no fed law applies.

What law do federal courts sitting in diversity claim, apply?

Answer 157

state law if
(1) it would be outcome determinative—i.e., failure to apply it would result in forum-shopping or inequitable administration—and (2) there is no contrary federal interest.

Question 158

diversity case applies state law to substantive issues and fed law to procedural

if conflict bc unclear if issue is substantive/procedural&raquo_space; fed law applies if what?

Answer 158

if the federal rule:
> is arguably procedural AND
> doesn’t affect substantive rights

Question 159

does issue preclusion apply if the party in T2 is diff than T1 party

Answer 159

no it will not apply

parties that can assert issue preclusion:
> party from T1 when there’s a T2 against them for same issue
> non-parties after parties from T1 are trying to try same issue in T2

Question 160

true or false:
once selected, a juror must participate in the verdict unless excused for good cause.

Answer 160

true; good cause exists when the juror has
> an illness
> family emergency or
> committed juror misconduct that might cause a mistrial.

Question 161

2 ways sanctions can be initiated

Answer 161

(1) by a party’s motion (serve it but then wait 21 days to file it so OC has a chance to correct their violation)

(2) court’s own initiative as long as the judge issues an order to show cause.

Question 162

if a district court makes a mistake in a judgment when can they fix it?

Answer 162

> BEFORE appeal is docketed:
- on its own initiative or pursuant to a party’s motion

> AFTER appeal is docketed:
- only with the appellate court’s leave.

Question 163

When will an amended complaint “relate back” to the date of the original complaint

Answer 163

(1) the same occurrence is at issue, (2) the new party received notice of the suit within 90 days after the original complaint was filed, and
(3) the new party knew or should have known that it would have been sued but for a mistake about its identity.

Question 164

when can a default judgement including money be entered?

Answer 164

when:
> Ps claim is for a specified amount
> Ps request for default judgement includes an affidavit that says the amount due
> D failed to appear by either not filing a motion or acting before the court
> D isn’t a minor or legally incompetent

Question 165

what does having a right to a jury trial depend on?

Answer 165

having a jury trial depends on the relief sought bc if:
Legal claim = right to jury
Equitable claim = no right to jury

Question 166

General verdict with answers

Answer 166

In a general verdict with special interrogatories, the jury decides which party should prevail and provides answers to questions on each factual issue.

If the verdict and answers are inconsistent, the judge must
(1) order a new trial
(2) direct the jury to further consider its answers and verdict, or (3) enter a judgment consistent with the answers.

Question 167

some judgments are immediately appealable and some are not bc they’re considered final-judgements

what’s the exception to the final-judgement rule?

Answer 167

A district court may certify an order for appeal by stating in writing that (1) there is a substantial difference of opinion on a controlling question of law and
(2) an immediate appeal may materially advance the ultimate termination of the litigation.

Question 168

when can a party request jury instructions?

Answer 168

> before or at the close of evidence unless the court sets an earlier deadline.

> Even after the close of evidence, a party can request instructions:
(1) on issues that could not reasonably have been anticipated by the deadline
or
(2) with the court’s permission.

Question 169

The general venue statute applies when a federal officer or employee is sued in his/her individual capacity. But special venue rules apply when a federal officer or employee is sued for acting in an official capacity or under color of legal authority.

Question 170

Standards of review for appeals

Answer 170

Questions of law:
> de novo

Findings of fact:
> clearly erroneous

Matters of discretion:
> abuse of discretion

Question 171

Can a TRO be issued without a hearing or notice to the adverse party?

> A TRO is used to preserve the status quo until the court can
make a decision on the preliminary injunction

Answer 171

Yes, but ONLY IF:
(1) the movant establishes under written oath that he/she will suffer immediate and irreparable harm before the nonmovant can be heard
AND
(2) the movant’s attorney certifies in writing any efforts made to give notice and why notice should not be required.

Question 172

claim preclusion
(i.e., res judicata)

Answer 172

Claim preclusion (i.e., res judicata) bars identical parties from relitigating identical claims after the entry of a valid final judgment on the merits

Question 173

issue preclusion
(i.e., collateral estoppel)

Answer 173

bars the re-litigation of issues of fact or law that were actually litigated, determined, and essential to a valid final judgment in a prior lawsuit.

An issue is essential if it provided a clear and necessary component of the ultimate decision
(essential issue = the final judgment depended on the determination of that issue)

Question 174

Subject-matter jurisdiction for statutory interpleader requires the stakeholder to deposit the property at issue with the court or post a bond in an amount determined by the court.

Question 175

Rule interpleader requires complete diversity between the stakeholder and the claimants and an amount in controversy that exceeds $75,000.

But statutory interpleader merely requires minimal diversity between the claimants and an amount in controversy of at least $500

Question 176

Under the Erie Doctrine, what law governs in a federal question claim?

Answer 176

federal law

Question 177

How can someone in the US get served?

Answer 177

(1) Personally serving the D
(2) Leaving the summons/complaint at the D’s usual home w/ someone of suitable age and discretion who resides there
(3) delivering it to an authorized agent

Question 178

Under Rule 20 permissive joinder, does the defendant to be joined have to meet the requirements of federal subject matter jurisdiction?

Answer 178

If the claims are made solely on the basis of diversity jurisdiction, there must be complete diversity between the plaintiffs and the defendants, and each claim must exceed the jurisdiction amount in controversy of $75,000.

Question 179

How much time does a party have to respond to interrogatories?

Answer 179

30 days

Question 180

3 types of mandatory disclosures?

Answer 180

(1) initial disclosures 14 days

(2) disclosures of expert testimony 90 days before trial

(3) pretrial disclosures 30 days before trial

Question 181

When is a default and when default judgment entered against a party?

Answer 181

A default happens when hasn’t plead or defended an action and then that failure to act is shown by affidavit so the court enters it

after its entered the party can seek a default judgment

Question 182

to satisfy diversity a party has to be either:

> citizen of a state
citizen of a foreign country

Answer 182

so US citizens residing in a foreign country that they don’t have citizenship of cannot meet diversity

Question 183

Appearance for the express purpose of making a jurisdictional objection is not consent to the court’s jurisdiction over her. Instead, the objection is waived if the personal jurisdiction objection is not raised in the first of a pre-answer Rule 12 motion or the answer itself

Answer 183

they only went to that jurisdiction to argue that it doesn’t have jurisdiction in the first place, not bc they’re consenting to it

if they don’t raise the objection in a ore-answer motion or answer itself then its waived

Question 184

a case will have federal question jurisdiction even a cause of action is based on state law if the court determines that the interpretation or application of state law may affect the outcome and the federal issue or interest is important enough to justify the exercise of jurisdiction. I

Question 185

In an in rem action, the forum court generally has personal jurisdiction over a defendant when the dispute centers on ownership of property located in the forum state

Answer 185

the property

Question 186

getting a default judgment means the plaintiff wins because the defendant didn’t respond to the lawsuit.

The process can be simple if it’s about money and the defendant hasn’t appeared in court bc they file an affidavit

Answer 186

If there are complications, like unclear amounts/D is minor or mentally unstable then Plaintiff has to ask judge directly for default judgement

If the defendant has appeared in court before, the plaintiff needs to give the defendant written notice
7 days before P goes to court for a decision

Question 187

motion to compel comes before sanctions

Question 188

a party cant be served by another party

Question 189

Due process requires counsel at a probation-revocation proceeding if the person
(1) denies committing the alleged violation
or
(2) asserts that complex reasons justified or mitigated it.

Answer 189

The Sixth Amendment guarantees this right if a sentence for the underlying offense (1) has not been imposed and (2) will be imposed if the probation is revoked.

Question 190

collateral order doctrine

Answer 190

allows an immediate appeal from an interlocutory order that:

> conclusively resolves an important issue that’s separate from the merits of the claim
and
cannot be effectively reviewed on appeal from a final judgment

ex: an order denying a claim of governmental immunity bc govt needs to appeal asap

Question 191

Absent the parties’ stipulation, a party may voluntarily dismiss a crossclaim, counterclaim, or third-party claim without a court order by unilaterally filing a notice of dismissal (1) before a responsive pleading is served or (2) if a responsive pleading is not served, before evidence is introduced at a hearing or trial.

Question 192

Discovery requests generally cannot be served until the parties have held an initial planning conference to arrange for initial disclosures and prepare a discovery plan.

Question 193

when does the bulge provision apply

Answer 193

allows fed court to have PJ over a D who isn’t in the state where the court is located but within 100 miles

applies to:
> a third-party defendant who is joined under Rule 14 and
> a required party who is joined under Rule 19.

Question 194

a defendant corporation can be subject to specific jurisdiction even when there is no general if

Answer 194

a cause of action arises out of or closely relates to a defendant’s contact with the forum state, even if that contact is the defendant’s only contact with the forum state

like if hey could’ve concluded their product would end up there

Question 195

common nucleus of operative fact required for supp. jurisdiction

but if the original fed claim is dismissed does the court have to hear the state claim?

Answer 195

it MAY

Question 196

what must a TRO include

Answer 196

(1) reasons why it was issued
(2) reasonable description of acts that are commanded/prohibited and
(3) its specific terms

Question 197

for a judgement as a matter of law to be granted the court determines if theres if there is is LEGALLY sufficient evdidence for a JURY to decide otherwise

Question 198

preliminary injunction:
> D needs to receive notice of the hearing and a chance to participate in it

Temp Restraining Order (TRO):
> can be granted WITHOUT notice of the hearing

Question 199

motion for attachment

Answer 199

“attachment” will have someone’s property seized in order to secure a judgement

if they’re broke, then “attach” to their property

Question 200

> if you have a fed claim and supp jursi. for a state claim.
then fed claim is dismissed

can the other party immediately appeal this decision?

Answer 200

no bc there is no final judgement yet, the state claim hasn’t been decided yet