MBE Review_Civ Pro

Question 1

SMJ - Fed Q Claim

Answer 1

Fed cts have jdx to join claims that arise out of “common nucleus of operative facts”

Question 2

SMJ - Diversity Claim

Answer 2

must have Complete Diversity btw parties

Question 3

Aggregation of P

Answer 3

not allowed when P have separate injuries, thus separate claims

Question 4

12b motion

Answer 4

D must object in 1st response (answer or pre-answer), else waived

Motion to Dismiss for lack of PJ, improper venue

Question 5

Venue

Answer 5

proper in any district where D resides, if all D reside in the same state

D in different states, venue proper where cause of action occurred

Question 6

service of process

Answer 6

proper on individual by leaving copy of summons & complaint at dwelling/abode w/ someone of suitable age & maturity who lives there

Question 7

Third party D Counterclaim

Answer 7

D MAY assert claim against P if claim arises out of same transaction or occurrence as original claim - or can bring in separate claim

D cannot assert 3rd party claim against another party unless they are seeking to obtain recovery; and that recovery must be from D’s own liability (cannot deny all liability)

Question 8

Amending a complaint - relation back doctrine

Answer 8

amendments to complaints substituting a new D are allowed; and will Relate Back to original complaint if (1) claims arise from same T/O and (2) w/in time allotted for serving original complaint (90 days) & new D receives notice of such action and it won’t be prejudiced in defending on the merits & they knew/should have known of the action against them

Question 9

Discovery Rule

Answer 9

discovery made be had of any nonprivileged matter that is relevant to any party’s claim or defense as long as info being sought can reasonably lead to admissible evidence (within scope of Discovery, not necessarily at trial)

everything is discoverable, as long as it’s not privileged

party must provide names of individuals likely to have discoverable information along with subjects of that info that may be used

Question 10

work product doctrine - discovery

Answer 10

provides a qualified immunity from discovery unless opposing party can show a substantial need & cannot obtain materials in an alternative way without undue hardship

Question 11

motion to compel

Answer 11

court may not impose sanctions, but must require D to pay reasonable expenses incurred

Question 12

Summary Judgment

Answer 12

grant when no genuine dispute as to material fact

motion appropriate at any time until 30 days after discovery

always respond to SJ, else it may be granted

Question 13

Default Judgment

Answer 13

D loses right to contest liability once Default is entered

Clerk may enter default judgment when amount of damages is specific & certain

Judge enters default judgment if damages need to be accrued.

notice - D entitled to default hearing if D makes any appearance. If no appearance, D must get notice.

Question 14

23f - appeals immediately

Answer 14

class certifications, injunctions are immediately appealable

normally, only final orders are reviewable on appeal

Question 15

Motion for a New Trial

Answer 15

may be granted when there’s an error during the trial (usually due to jury misconduct, excessive/inadequate verdicts, or when the verdict goes against evidence presented)

Question 16

JMOL

Answer 16

may be by either party, anytime before case is submitted to the jury

Question 17

Remittitur

Answer 17

when judge believes jury’s award is so excessive, as to shock conscience; judge is offered to accept remittitur(lower amount) or new trial

Question 18

Cross Claim

Answer 18

two parties on same side of lawsuit want to sue each other

never compulsory - don’t have to sue in same lawsuit

Question 19

Issue Preclusion (Collateral Estoppel)

Answer 19

in previous lawsuit, any judgment occurred in original trial binds them in subsequent actions with respect to actions actually litigated and determined.

Question 20

Compulsory Counterclaim

Answer 20

(a claim that arises out of the same transaction or occurrence as the plaintiff’s claim)

does not need to meet the jurisdictional amount requirement for diversity jurisdiction.

Question 21

Permissive counterclaim

Answer 21

a claim that arises out of an unrelated transaction

must meet the jurisdictional amount requirement.

Question 22

Statement by an Opposing Party (commonly called an admission)

Answer 22

Federal Rule 801(d)(2) provides that a statement offered against a party that is the party’s own statement is not hearsay and therefore cannot be excluded by the rule against hearsay. Assuming that it is relevant and not barred by other rules, the statement is admissible.

Question 23

“two dismissal rule.”

Answer 23

A dismissal by notice is without prejudice unless the plaintiff has previously dismissed any federal or state court action on the same claim, in which case the dismissal by notice is with prejudice. (This is known as the “two dismissal rule.”) Thus, the second dismissal by the plaintiff here operates as an adjudication on the merits.